Adobe Systems Incorporated v. Kornrumpf, No. 4:2010cv02769 - Document 54 (N.D. Cal. 2011)
Court Description: ORDER GRANTING 53 STIPULATED PROTECTIVE ORDER. Signed by Judge Claudia Wilken on 2/14/2011. (ndr, COURT STAFF) (Filed on 2/14/2011)
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Adobe Systems Incorporated v. Kornrumpf 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Doc. 54 J. Andrew Coombs (SBN 123881) andy@coombspc.com Annie S. Wang (SBN 243027) annie@coombspc.com J. Andrew Coombs, A Prof. Corp. 517 East Wilson Avenue, Suite 202 Glendale, California 91206 Telephone: (818) 500-3200 Facsimile: (818) 500-3201 Attorneys for Plaintiff and Counter-Defendant Adobe Systems Incorporated John D. McCurdy, Esq. (SBN 54091) jmccurdy@jmll.com Reagan E. Boyce, Esq. (SBN 248064) reagan.boyce@jmll.com McCurdy & Leibl, LLP 12925 Riverside Drive, Third Floor Sherman Oaks, California 91423 Telephone: (818) 380-0123 Facsimile: (818) 380-0124 Attorney for Defendants and Counter-Plaintiffs Hoops Enterprise, LLC and Tony Kornrumpf 15 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA (OAKLAND) 18 19 20 21 22 Adobe Systems Incorporated, Plaintiff, v. Tony Kornrumpf, et al., Defendants. 23 24 ALL RELATED CLAIMS ) ) ) ) ) ) ) ) ) ) ) ) Case No.: C10-2769 CW (DMRx) STIPULATED PROTECTIVE ORDER; ORDER Honorable Judge Claudia Wilken 25 26 27 28 STIPULATED PROTECTIVE ORDER Dockets.Justia.com 1 It is stipulated and agreed by and between Plaintiff/Counter-Defendant 2 Adobe Systems, Inc. and Defendants/Counter-Plaintiffs Hoops Enterprise, LLC and Tony 3 Kornrumpf, by and through their respective counsel of record, (hereinafter singularly 4 “Party” or collectively (the Parties”), that the terms and conditions of this Stipulated 5 Protective Order shall govern the handling of documents, answers to interrogatories, 6 depositions, pleadings, exhibits, and all other information exchanged by the Parties in this 7 action. Disclosure and discovery activity in this action is likely to involve the production of 8 confidential, proprietary, or private information for which special protection from public 9 disclosure and from use for any purpose other than prosecuting, defending or the resolution 10 of this litigation is warranted. The Parties acknowledge that this Order does not confer 11 blanket protections on all disclosures, productions or responses to discovery and that the 12 protection it affords extends only to the limited information or items that are entitled under 13 applicable legal principles to treatment as confidential. The Parties further acknowledge 14 that this Stipulated Protective Order creates no entitlement to file confidential information 15 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 16 reflects the standards that will be applied when a Party seeks permission from the Court to 17 file material under seal. 18 It is ORDERED as follows: 19 1. This Order shall govern: 20 a. all testimony at depositions, pre-trial hearings, and at trial; b. all documents, information, materials or things produced by any 21 22 Party or third-party in response to discovery requests and subpoenas, under the Federal Rules 23 of Civil Procedure, or otherwise; 24 c. all copies, abstracts, excerpts, analyses, summaries, or other 25 materials (written, electronic, or in other form) that contain, reflect, or disclose information 26 contained in such testimony, documents, or other materials. 27 The items listed in (a)-(c) above shall be referred to as “Discovery Materials.” 28 STIPULATED PROTECTIVE ORDER 1 2. 1 Any Party to this litigation shall have the right to designate Discovery 2 Materials as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” pursuant to the terms 3 of this Protective Order. 4 “HIGHLY CONFIDENTIAL” will be referred to as “Designated Materials.” The Party 5 making such designation will be deemed the “Designating Party.” Any third-party 6 producing documents pursuant to a subpoena or otherwise may designate Discovery 7 Materials pursuant to this Protective Order only if an authorized representative of the 8 producing third-party executes a written acknowledgment, substantially in the form of 9 Exhibit 1 annexed to this Protective Order, that the non-party has reviewed a copy of the 10 Protective Order, will comply with its terms, and will submit to the jurisdiction of this 11 Court for adjudication of any dispute regarding that third-party’s designations under 12 the Protective Order. All designations must be made in good faith and on reasonable 13 belief that the designation accurately reflects the definition of “CONFIDENTIAL” or 14 “HIGHLY CONFIDENTIAL” materials. a. 15 Discovery Materials designated “CONFIDENTIAL” or Materials marked “CONFIDENTIAL” shall be those Discovery 16 Materials, including any document, file, portion of file, transcribed testimony or other 17 material that the Designating Party in good faith reasonably believes to comprise non- 18 public, proprietary or confidential information (including but not limited to trade 19 secrets1, confidential research, or commercial information, such as costs, pricing, 20 financial data, marketing plans and strategies, and any other confidential or proprietary 21 information not shared or disclosed to third parties) of the Designating Party. b. 22 Materials marked “HIGHLY CONFIDENTIAL” shall be 23 those Discovery Materials, including any document, file, portion of file, transcribed 24 testimony or other material that the Designating Party in good faith reasonably believes to 25 comprise trade secrets, or other competitively sensitive confidential information, and 26 1 27 28 Cal. Civil Code § 3426.1 provides that trade secret “means information, including a formula, pattern, compilation, program, device, method, technique, or process, that: (1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy. STIPULATED PROTECTIVE ORDER 2 1 financial or other commercial information of the Designating Party, the disclosure of 2 which would be likely to cause competitive harm. Discovery Materials may only be 3 designated “HIGHLY CONFIDENTIAL” if the Designating Party believes in good faith 4 that designation as “CONFIDENTIAL” will not provide adequate protection. c. 5 A Designating Party has the right to have persons present in the 6 inspection room at all times during any inspection of Discovery Materials by counsel for 7 the Party receiving the Discovery Materials (the “Receiving Party”). If the Designating 8 Party does have a person present in the inspection room during inspection by counsel for 9 the Receiving Party, another room nearby shall be set aside for counsel to confer. In 10 addition to counsel for the Receiving Party, the Receiving Party may also have present 11 during any inspection of Discovery Materials individuals meeting the criteria set forth in 12 Paragraphs 5(a), 5(b), 5(f) and 6, infra. 13 inspection and the information contained therein shall be treated as “HIGHLY 14 CONFIDENTIAL” prior to the receipt of copies of materials. Upon receipt of copies, the 15 designation indicated on the copy, if any, shall be the operative designation. 16 17 18 3. All Discovery Materials produced for Discovery Materials shall be used by the Receiving Party solely for the purpose of conducting this litigation, but not for any other purpose whatsoever. 4. Information designated as “CONFIDENTIAL” shall be used by the 19 Receiving Party solely for the purposes of litigation between the Parties, and may be 20 disclosed only to the following persons: 21 a. any employee or former employee of a Party to whom it is 22 deemed necessary that the documents be shown for purposes of the litigation, provided that 23 any such employee or former employee shall (i) be advised that they are subject to the 24 terms of this protective order; and (ii) signs the acknowledgement in the form of Exhibit 25 1 attached to this Protective Order, before being provided Designated Materials; 26 b. outside counsel for the respective Parties, and employees of and 27 independent contractors for outside counsel that are engaged in work for such counsel 28 necessary to assist in this litigation. The term “outside counsel” shall mean the attorneys STIPULATED PROTECTIVE ORDER 3 1 and their firms who have entered an appearance in this case. If any of the Parties seek to 2 add additional law firms, it shall notify the opposing Party(ies) of the intended addition. 3 The opposing Party(ies) shall have 10 days from the date of notification in which to 4 object to the disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” 5 material to the intended additional law firm. If objection is timely made, no 6 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material may be disclosed to said 7 law firm(s) unless otherwise agreed to by the Parties or ordered by the Court. Prior to 8 disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material, the 9 additional law firm shall acknowledge in writing that it is familiar with and agrees to 10 comply with all provisions of this Protective Order; c. 11 experts or consultants retained for purposes of this litigation, 12 but only to the extent necessary to: (a) prepare a written opinion, (b) prepare to testify 13 in the Litigation, or (c) assist counsel in the prosecution or defense of the Litigation; 14 provided that such expert or consultant (i) is using the “CONFIDENTIAL” material 15 solely in connection with the Litigation, and (ii) signs the acknowledgement in the form of 16 Exhibit 1 attached to this Protective Order before being provided “CONFIDENTIAL” 17 materials; 18 d. witnesses in the course of deposition, hearing, or trial testimony 19 where counsel has a reasonable and good faith belief that examination with respect to the 20 “CONFIDENTIAL” materials is necessary, and any person being prepared to testify where 21 counsel has a reasonable and good faith belief that such person will be a witness in this 22 action and that his examination with respect to the “CONFIDENTIAL” material is 23 necessary in connection with such testimony; persons to whom “CONFIDENTIAL” 24 materials are disclosed pursuant to this subparagraph must execute the acknowledgement 25 in the form of Exhibit 1 attached to this Protective Order prior to being given 26 “CONFIDENTIAL” materials; and may not be permitted to retain copies of the 27 “CONFIDENTIAL” materials; 28 e. STIPULATED PROTECTIVE ORDER the author of the document and anyone shown on the document 4 1 as having received it in the ordinary course of business; 2 f. court reporters and persons preparing transcripts of depositions; 3 g. in-house lawyers for the respective Parties, and employees 4 regularly engaged in clerical work for such in-house lawyers, provided that any such 5 lawyers or employees thereof shall sign the Acknowledgement in the form of Exhibit 1 6 attached to this Protective Order before being provided “CONFIDENTIAL” materials; h. 7 The records of Defendants Tony Kornrumpf and/or Hoops 8 Enterprise, LLC relating to the purchase or sale of any of Plaintiff Adobe Systems 9 Incorporated’s products may be disclosed to Scott Bain of the Software & Information 10 Industry Association subject to the terms of this protective order for the limited purpose of 11 facilitating settlement of this action, provided that Mr. Bain executes a written 12 acknowledgement, substantially in the form of Exhibit 1 attached hereto, attesting that he 13 has reviewed a copy of this Protective Order, will comply with its terms in all respects and 14 will submit to the jurisdiction of this Court for adjudication of any dispute about whether he 15 has complied with the terms of this Protective Order. Mr. Bain will not be permitted to 16 keep copies of any documents provided pursuant to this paragraph 4(h). 17 i. the Court, Court personnel, and jurors or potential jurors; and 18 j. any other person only upon order of the Court or upon 19 stipulation of the Designating Party, in writing or on the record of a deposition, or at a 20 hearing or trial. 21 5. Information designated as “HIGHLY CONFIDENTIAL” shall be 22 used by the Receiving Party solely for the purposes of litigation between the Parties and 23 may be disclosed only to the following persons: 24 a. outside counsel for the respective Parties, and employees of and 25 independent contractors for outside counsel engaged in work for such counsel necessary 26 to assist in this action. The term “outside counsel” shall have the same meaning as defined in 27 paragraph 4(b) above, and the same restrictions, terms and conditions set forth in paragraph 28 4(b) above shall apply equally to this paragraph 5(a); STIPULATED PROTECTIVE ORDER 5 b. 1 experts or consultants retained for purposes of this litigation, but 2 only to the extent necessary to: (a) prepare a written opinion, (b) prepare to testify in the 3 Litigation, or (c) assist counsel in the prosecution or defense of the Litigation; provided 4 that such expert or consultant (i) is using the “HIGHLY CONFIDENTIAL” material solely 5 in connection with the Litigation, (ii) signs the Acknowledgement attached to this 6 Protective Order before being provided “HIGHLY CONFIDENTIAL” materials, and (iii) 7 complies with the requirements of Paragraph 6, infra; c. 8 9 the author of the document and anyone shown on the document as having received it in the ordinary course of business; d. 10 a current officer or director of the Designating Party for 11 purposes of questioning the officer or director as a witness at a deposition, hearing, or trial, 12 provided that (1) the “HIGHLY CONFIDENTIAL” materials to be shown the witness relate 13 to the topics on which the witness has been demonstrated to have knowledge or has been 14 designated as the person most knowledgeable by the Designating Party; (2) counsel for the 15 Receiving Party provides counsel for the Designating Party advance notice of the intent 16 to question the witness at his/her deposition regarding the “HIGHLY CONFIDENTIAL” 17 materials, including a specific identification of the “HIGHLY CONFIDENTIAL” materials 18 on which the witness is to be questioned; and (3) counsel for the Receiving Party provides 19 counsel for the Designating Party no less than twenty-four (24) hours advance notice in 20 writing, of the intent to question the witness at a hearing or at trial regarding the 21 “HIGHLY CONFIDENTIAL” materials, including a specific identification of the 22 “HIGHLY CONFIDENTIAL” materials on which the witness is to be questioned; 23 e. court reporters and persons preparing transcripts of depositions; 24 f. the Court, Court personnel, and jurors or potential jurors; and 25 g. any other person only upon order of the Court or upon 26 stipulation of the Designating Party, in writing or on the record of a deposition, hearing or 27 trial. 28 h. STIPULATED PROTECTIVE ORDER The records of Defendants Tony Kornrumpf and/or Hoops 6 1 Enterprise, LLC relating to the purchase or sale of any of Plaintiff Adobe Systems 2 Incorporated’s products may be disclosed to Scott Bain of the Software & Information 3 Industry Association subject to the terms of this protective order for the limited purpose of 4 facilitating settlement of this action, provided that Mr. Bain executes a written 5 acknowledgement, substantially in the form of Exhibit 1 attached hereto, attesting that he 6 has reviewed a copy of this Protective Order, will comply with its terms in all respects and 7 will submit to the jurisdiction of this Court for adjudication of any dispute about whether he 8 has complied with the terms of this Protective Order. Mr. Bain will not be permitted to 9 keep copies of any documents provided pursuant to this paragraph 5(h). 10 6. Procedures for 11 a. Disclosure of ““HIGHLY CONFIDENTIAL”” Material to Experts: 12 Approving Unless otherwise ordered by the Court or agreed to in writing 13 by the Designating Party, a Receiving Party that seeks to disclose to an Expert any 14 information or item that has been designated ““HIGHLY CONFIDENTIAL”” must first 15 make a written request to the Designating Party that (1) sets forth the full name of the 16 Expert and the city and state of his or her primary residence, (2) attaches a copy of the 17 Expert’s current resume, (3) identifies the Expert’s current employer(s), (4) 18 identifies each person or entity from whom the Expert has received compensation for 19 work in his or her areas of expertise or to whom the Expert has provided professional 20 services at any time during the preceding five years, and (5) identifies (by name and 21 number of the case, filing date, and location of court) any litigation in connection with 22 which the Expert has provided any professional services during the preceding five years. 23 b. A Receiving Party that makes a request and provides the 24 information specified in the preceding paragraph may disclose Designated Materials 25 to the identified Expert unless, within seven court days of delivering the request, the 26 Receiving Party receives a written objection from the Designating Party. Any such 27 objection must set forth in detail the grounds on which it is based. 28 c. STIPULATED PROTECTIVE ORDER A Receiving Party that receives a timely written objection must 7 1 meet and confer with the Designating Party (through direct voice to voice dialogue) to try to 2 resolve the matter by agreement. If no agreement is reached, the Receiving Party seeking to 3 make the disclosure to the Expert may file a motion seeking permission from the court 4 to do so. Any such motion must describe the circumstances with specificity, set forth 5 in detail the reasons for which the disclosure to the Expert is reasonably necessary, 6 assess the risk of harm that the disclosure would entail and suggest any additional means 7 that might be used to reduce that risk. In addition, any such motion must be accompanied 8 by a competent declaration in which the Receiving Party describes the Parties’ efforts to resolve 9 the matter by agreement (i.e., the extent and the content of the meet and confer discussions) 10 and sets forth the reasons advanced by the Designating Party for its refusal to approve the 11 disclosure. d. 12 In any such proceeding, the Designating Party shall bear the 13 burden of proving that the risk of harm that the disclosure would entail (under the 14 safeguards proposed) outweighs the Receiving Party’s need to disclose the Designated 15 Materials to its Expert. 16 7. Persons who are authorized to review Designated Materials shall hold 17 such materials in confidence and shall not disclose their contents, either verbally or in 18 writing, to any person not otherwise authorized to receive such information under this 19 Protective Order, or otherwise required by law. Copies of Designated Materials shall be 20 made only to the extent necessary to facilitate permitted use under this Protective Order. 21 8. The recipient of Designated Materials provided under this Order shall 22 maintain such information in a secure and safe area and shall exercise the same standard of 23 due and proper care with respect to the storage, custody, use and/or dissemination of such 24 information as is exercised by the recipient with respect to its own proprietary information. 25 Designated Materials shall not be copied, reproduced, summarized or abstracted, except to 26 the extent that such copying, reproduction, summarization or abstraction is reasonably 27 necessary for the conduct of this lawsuit. All such copies, reproductions, summarizations, 28 extractions, and abstractions shall be subject to the terms of the Order, and labeled in the STIPULATED PROTECTIVE ORDER 8 1 2 same manner as the Designated Materials on which they are based. 9. In the event a Party deems it necessary to disclose any Materials 3 designated as “CONFIDENTIAL” to any person not specified in paragraph 4, or to disclose 4 any Material designated as “HIGHLY CONFIDENTIAL” to any person not specified in 5 paragraph 5 (the “Proposed Disclosure”), that Party shall notify counsel for the Designating 6 Party in writing of: (i) the Designated Materials it wishes to disclose, and (ii) the person or 7 persons to whom such disclosure is to be made. The Proposed Disclosure shall not be made 8 absent written permission of the Designating Party, unless the Party wishing to make the 9 Proposed Disclosure obtains an order from the Court permitting the Proposed Disclosure. 10 Counsel shall obtain from all persons to whom disclosures are made pursuant to this 11 paragraph 9 a written acknowledgement, substantially in the form of Exhibit 1 attached 12 hereto, that such person or persons have reviewed a copy of this Protective Order, will 13 comply with its terms in all respects and will submit to the jurisdiction of this Court for 14 adjudication of any dispute about whether such person or persons have complied with the 15 terms of this Protective Order. 16 10. In the event of any inadvertent disclosure of attorney-client privileged 17 information or information subject to the attorney work product doctrine or any other 18 privilege, the Party making such inadvertent disclosure, after learning of such inadvertent 19 disclosure, shall notify the Party to whom the inadvertent disclosure was made; the 20 Party to whom the inadvertent disclosure was made shall then immediately return such 21 material and all copies the Party made thereof. Also, in the event any Party hereto receives 22 any document from another Party that upon its face is subject to the attorney-client 23 privilege, attorney work product doctrine, or any other privilege, that Party shall 24 immediately return such document and all copies the Party made thereof to the Party who 25 produced the document. 26 27 28 11. Disclosing Parties shall designate Discovery Materials “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” as follows: a. STIPULATED PROTECTIVE ORDER In the case of documents, interrogatory answers, responses to 9 1 requests to admit, and the information contained therein, designation shall be made by 2 placing the following legend on every page of any such document prior to production: 3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL;” b. 4 In the case of depositions, designation of the portion of the 5 transcript (including exhibits) which contains Designated Materials shall be made by a 6 statement to such effect on the record in the course of the deposition or, upon review of such 7 transcript, by counsel for the Party to whose Designated Materials the deponent has had 8 access, which counsel shall designate within thirty (30) days after counsel’s receipt of a 9 certified transcript from the court reporter. If a portion of a deposition is designated as 10 Designated Materials before the deposition is transcribed, the transcript of the 11 “Designated Materials” shall be bound in a separate volume marked “CONFIDENTIAL” 12 or “HIGHLY CONFIDENTIAL” as appropriate. Any transcript or portion thereof so 13 designated shall not be produced by the court reporter of record to any non-party or 14 third party without the prior written consent of the Designating Party. If a portion of a 15 deposition is designated as Designated Materials during the course of a deposition, 16 counsel may request all persons, except persons entitled to receive Designated Materials 17 pursuant to this Protective Order, to leave the room while the deposition is proceeding 18 until completion of the answer or answers containing Designated Materials. If a portion of a 19 deposition is designated as Designated Materials after the deposition is transcribed, 20 counsel shall list on a separate piece of paper the numbers of the pages of the transcript 21 containing Designated Materials, inserting the list at the end of the transcript, and mailing 22 copies of the list to counsel for all Parties and the court reporter of record so that it may be 23 affixed to the face of the transcript and each copy thereof. Any transcript or portion thereof 24 so designated shall not be produced by the court reporter of record to any non-party or third 25 party without the prior written consent of the Designating Party. The court reporter shall 26 also 27 CONFIDENTIAL” or “CONFIDENTIAL” as designated by the Designating Party and shall 28 not produce further or additional copies to any Party, non-party or third party without the maintain the original STIPULATED PROTECTIVE ORDER transcript file 10 appropriately marked as “HIGHLY 1 prior written consent of the Designating Party. Pending such designation by counsel, the 2 entire 3 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” as designated. 4 designation is made within thirty (30) days after receipt of a certified transcript from the 5 court reporter, the transcript shall be considered not to contain any Designated Materials; deposition c. 6 transcript, including exhibits, shall be deemed If no Transcripts of depositions or documentation produced in the 7 action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” will not be 8 filed with the Court unless it is necessary to do so for purposes of trial, motions for 9 summary judgment, or other matters. The Parties shall use their best efforts to include 10 Designated Materials in Court filings only when absolutely necessary, and shall, to the extent 11 possible, file redacted versions of sealed filings that redact any portions of those filings that 12 contain or reflect Designated Materials. If a motion to seal is pending, any materials filed 13 under seal shall remain under seal and shall not be disclosed to any person other than Court 14 personnel, opposing counsel, and any other person permitted under the terms of this 15 Protective Order to have access to the sealed materials until the Court has ruled on that 16 motion. If the Court grants the motion to file under seal, the documents shall remain 17 under seal and shall not be disclosed except as provided in this Protective Order or other 18 Court Order. A complete, unredacted set of documents filed under seal shall be provided 19 by the filing Party to opposing counsel. d. 20 Any Designated Materials produced in a non-paper media (e.g. 21 videotape, audiotape, computer disk, etc.) may be designated as such by labeling the 22 outside of such non-paper media as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” 23 In the event a Receiving Party generates any “hard copy,” transcription, or printout from 24 any 25 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and the hard copy, transcription or 26 printout shall be treated as it is designated. 27 28 such designated 12. non-paper media, such Party must stamp each page If timely corrected, an inadvertent failure to designate qualified information or items as “Confidential” or ““HIGHLY CONFIDENTIAL”” does not, STIPULATED PROTECTIVE ORDER 11 1 standing alone, waive the Designating Party’s right to secure protection under this Order 2 for such materials. If the material is appropriately designated as “CONFIDENTIAL” or 3 ““HIGHLY CONFIDENTIAL”” after it was initially produced, the Receiving Party, on 4 timely notification of the designation, must make reasonable efforts to assure that the 5 Designated Materials are treated in accordance with the provisions of this Order. 13. 6 A Party shall not be obligated to challenge the propriety of a 7 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” designation at the time made, 8 and failure to do so shall not preclude a subsequent challenge thereto during the pendency 9 of this litigation. In the event that any Party to this litigation disagrees at any stage of 10 these proceedings with such designation, such Party shall provide to the Designating Party 11 written notice of its disagreement with the designation. The Parties shall first try to dispose 12 of such dispute in good faith on an informal basis. If the dispute cannot be resolved within 13 fourteen (14) days or such shorter time as may be necessary in the circumstances after the 14 objection is received, the Party seeking to de-designate the information as 15 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” may file a motion requesting that 16 this Court determine whether the disputed material shall be treated as “CONFIDENTIAL” or 17 “HIGHLY CONFIDENTIAL” under the Protective Order. The burden of proving that 18 information has been properly designated as “CONFIDENTIAL” or “HIGHLY 19 CONFIDENTIAL” is on the Designating Party. 20 Designated Materials shall retain this status as well as its category of designation until such 21 time as either: (a) the Parties expressly agree otherwise in writing, or (b) the Court orders 22 otherwise, unless such order is stayed pending appellate review. 14. 23 Discovery Material designated as In the event that any Designated Materials is used in any Court 24 proceeding in connection with this litigation (other than trial), it shall not lose its 25 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” status through such use, and the 26 Parties shall take all steps reasonably required to protect its confidentiality during such 27 use. 28 15. In the event that the case proceeds to trial, any Designated Material STIPULATED PROTECTIVE ORDER 12 1 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” becomes public and 2 will be presumptively available to all members of the public, including the press, unless 3 sufficient cause is shown in advance of trial to proceed otherwise. 4 16. If Designated Materials are disclosed to any person other than in the 5 manner authorized by this Order, the person responsible for the disclosure must immediately 6 bring all pertinent facts relating to such disclosure to the attention of counsel for the 7 Designating Party and, without prejudice to any other rights and remedies of the Parties, 8 make every effort to prevent further disclosure by it or by the person who was the recipient 9 of such information. 10 17. In the event any Receiving Party having possession, custody or control 11 of any Discovery Materials provided by the Designating Party receives a subpoena or other 12 process or order to produce in another legal proceeding the Discovery Materials, such 13 Receiving Party shall notify counsel for the Designating Party of the subpoena or other 14 process or order, furnish counsel for the Designating Party with a copy of said subpoena 15 or other process or order, and cooperate with respect to all reasonable procedures sought to 16 be pursued by the Designating Party whose interests may be affected. The Designating 17 Party shall have the burden of defending against such subpoena, process or order. The 18 Receiving Party shall be entitled to comply with the subpoena or other process or order 19 except to the extent the Designating Party is successful in obtaining an order modifying or 20 quashing the subpoena or other process or order. 21 18. Entering into, agreeing to, and/or producing or receiving information 22 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” or otherwise complying 23 with the terms of this Protective Order shall not: 24 a. operate as an admission by any Party that any material 25 designated by another Party or non-party actually contains or reflects trade secrets or other 26 confidential information; 27 28 b. reduce in any way the rights of the Parties or non-parties from whom discovery may be sought to object to a request for discovery or to the production of STIPULATED PROTECTIVE ORDER 13 1 documents or materials that they may consider not subject to discovery or privileged from 2 discovery; c. 3 prejudice in any way the rights of any Party to object to the 4 authenticity or admissibility of any document, materials, or testimony that is subject to this 5 Protective Order; d. 6 7 prejudice in any way the rights of any Party to seek a determination by the Court as to the appropriateness of a designation; and/or e. 8 prevent the Parties from agreeing to alter or waive the protections 9 or remedies provided in this Protective Order with respect to any particular Designated 10 Materials or Discovery Materials, provided that such agreement, alteration, or waiver is in 11 writing and signed by all Parties. 12 19. This Stipulated Protective Order is without prejudice to the right of any 13 Party to seek relief from the Court, upon good cause shown, from any of the provisions 14 contained in the Stipulated Protective Order. 15 20. This Stipulated Protective Order shall not be construed as waiving any 16 right to assert a claim of privilege, relevance, overbreadth, trade secret, burdensomeness 17 or other grounds for not producing material called for, and access to such material shall be 18 only as otherwise provided by the discovery rules and other applicable law both foreign 19 and domestic. 20 21. Nothing contained herein shall preclude a producing entity from using 21 his, her, or its own confidential information, documents, or materials in any manner he, she, 22 or it sees fit, or from revealing such confidential information, documents, or materials to 23 whomever he, she, or it chooses. 24 22. After termination of this action, the restrictions on the communication 25 and disclosure provided for herein shall continue to be binding upon the Parties and all 26 other persons to whom Designated Materials or information contained therein have been 27 communicated or disclosed pursuant to the provisions of this Order or any other Order of 28 this Court. The Court shall retain continuing jurisdiction to enforce the terms of this STIPULATED PROTECTIVE ORDER 14 1 Protective Order. 2 23. All Designated Material subject to this Protective Order shall be 3 returned to the Designating Parties or destroyed upon termination of this action. 4 Termination of this action shall be taken and construed as the date forty-five (45) days 5 following (a) the filing of a stipulated dismissal or the entry of a voluntary dismissal; (b) a 6 final non-appealable order disposing of this case; or (c) the expiration of the time for any 7 appeal. Upon such termination, counsel of record for the Receiving Party shall notify 8 counsel for the Designating Party of compliance. Counsel for the Receiving Party shall 9 make a reasonable effort to retrieve any documents or information subject to this Protective 10 Order from any person to whom such information has been given, and shall notify counsel 11 for the Designating Party of the failure to retrieve any such information. 24. 12 Such information shall include descriptive detail of any document not 13 returned or destroyed. Nothing in this paragraph shall preclude outside counsel from 14 retaining after termination of this action one copy of (a) pleadings, motions, and memoranda 15 filed with the Court; (b) correspondence, attorney notes, settlement related documents; and (c) 16 deposition, hearing and trial transcripts and exhibits, provided, however, that such counsel 17 may not disclose retained materials that contain Designated Materials to any other person 18 and shall keep such retained materials in a manner reflecting their confidential nature. 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// (Signature Page To Follow) 27 28 STIPULATED PROTECTIVE ORDER 15 1 IT IS SO STIPULATED. 2 3 Dated: February 11, 2011 4 J. Andrew Coombs, A Professional Corp. By: __/s/ Annie S. Wang_______________________ J. Andrew Coombs Annie S. Wang Attorneys for Plaintiff and Counter-Defendant Adobe Systems Incorporated 5 6 7 8 Dated: February 11, 2011 9 McCurdy & Leibl, LLP By: /s/ Reagan E. Boyce____________ John D. McCurdy, Esq. Reagan E. Boyce, Esq. Attorney for Defendants and Counter-Plaintiffs Hoops Enterprise, LLC and Tony Kornrumpf 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 16 EXHIBIT 1 1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 I, ______________ [print or type full name], of ________________ [print or 3 type full address], declare under penalty of perjury that I have read in its entirety and 4 understand the Stipulated Protective Order that was issued by the United States District 5 Court for the Northern District of California on _______ in the case of ADOBE SYSTEMS 6 INCORPORATED v. KORNRUMPF, et. al., Case No.: 10-CV-02769 CW (DMRx). I 7 agree to comply with and to be bound by all the terms of this Stipulated Protective Order and 8 I understand and acknowledge that failure to so comply could expose me to sanctions and 9 punishment in the nature of contempt. I solemnly promise that I will not disclose in any 10 manner any information or item that is subject to this Stipulated Protective Order to any 11 person or entity except in strict compliance with the provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court 13 for the Northern District of California for the purpose of enforcing the terms of this 14 Stipulated Protective Order, even if such enforcement proceedings occur after termination of 15 this action. 16 I hereby appoint ___________________[print or type full name] of 17 _____________ [print or type full address and telephone number] as my California agent for 18 service of process in connection with this action or any proceedings related to enforcement 19 of this Stipulated Protective Order. 20 Date: 21 City and State where sworn and signed: 22 23 Printed name: [printed name] 24 25 Signature: 26 27 28 STIPULATED PROTECTIVE ORDER 17 ORDER 1 FOR GOOD CAUSE SHOWN, the Stipulated Protective Order, filed 2 concurrently herewith, is hereby entered. 3 Documents subject to this order may be filed under seal only by specific order 4 of the Court. If a Party desires to file a document subject to this order under seal, the Party 5 shall submit a stipulation signed by all Parties explaining specifically what documents are at 6 issue and why they deserve heightened protection from disclosure. If the Parties are unable 7 to reach a stipulation, the Party desiring the file under seal may submit an ex parte 8 application, explaining both why the Court should allow the filing to be under seal and also 9 why the Parties were unable to reach a stipulation. Only in exceptional circumstances will 10 the Court allow briefs to be filed under seal. 11 PURSUANT TO STIPULATION, IT IS SO ORDERED. 12 13 14 15 DATED: 2/14/2011 16 __________________________________ Honorable Judge Claudia Wilken United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 STIPULATED PROTECTIVE ORDER 18
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