Martin et al v. Merrill Lynch, Pierce, Fenner & Smith, Incorporated et al, No. 4:2010cv04020 - Document 45 (N.D. Cal. 2011)

Court Description: ORDER Granting 44 Stipulation for PROTECTIVE ORDER. Signed by Judge Claudia Wilken on 2/15/2011. (ndr, COURT STAFF) (Filed on 2/15/2011)

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Martin et al v. Merrill Lynch, Pierce, Fenner & Smith, Incorporated et al 1 2 3 4 5 6 Doc. 45 TERRY E. SANCHEZ (SBN 101318) Terry.Sanchez@mto.com KATHLEEN M. McDOWELL (SBN 115976) Kathleen.McDowell@mto.com JOEL M. PURLES (SBN 266208) Joel.Purles@mto.com MUNGER, TOLLES & OLSON LLP 355 South Grand Ave. Thirty-Fifth Floor Los Angeles, CA 90071 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 WILLIAM I. EDLUND (SBN 25013) Bedlund@bztm.com ROBERT H. BUNZEL (SBN 99395) rbunzel@bztm.com HOWARD I. MILLER (SBN 251878) hmiller@bztm.com BARTKO, ZANKEL, TARRANT & MILLER A Professional Corporation 900 Front Street, Suite 300 San Francisco, CA 94111 Telephone: (415) 956-1900 Facsimile: (415) 512-4077 VICTORIA L. BOESCH (SBN 228561) Victoria.Boesch@mto.com MUNGER, TOLLES & OLSON LLP 560 Mission Street, Twenty-Seventh Floor San Francisco, CA 94105-2907 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Attorneys for Plaintiffs KEVIN MARTIN, DAVID NORRIS and FRANK STONE 7 8 9 10 11 12 13 Attorneys for Defendants MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, MERRILL LYNCH & CO., INC., and BRIAN RILEY 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 OAKLAND DIVISION 18 19 20 KEVIN MARTIN, DAVID NORRIS, FRANK STONE, individually and on behalf of all others similarly situated, CASE NO. CV-10-4020-CW STIPULATED PROTECTIVE ORDER Plaintiff, 21 22 23 24 vs. MERRILL LYNCH, PIERCE, FENNER & SMITH, INCORPORATED; MERRILL LYNCH & CO., INC., BRIAN RILEY and DOES 1-20, 25 Defendants. 26 27 28 13075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW Dockets.Justia.com 1 This Stipulated Protective Order is entered into between Plaintiffs Kevin Martin, David 2 Norris and Frank Stone and Defendants Merrill Lynch, Pierce, Fenner & Smith, Incorporated, 3 Merrill Lynch & Co., Inc., and Brian Riley to address the confidentiality of certain materials to be 4 produced by the parties and non-parties in two separate actions: Martin v. Merrill Lynch, Pierce, 5 Fenner & Smith, Incorporated, Case No. CV-10-04020-CW and Shaffer v. Merrill Lynch, Pierce, 6 Fenner & Smith, Incorporated, Case No. CV-10-03943-CRB. Collectively, these two 7 proceedings will be referred to as the “Litigation.” 8 9 It is hereby stipulated and agreed that: 1. 10 PURPOSES AND LIMITATIONS Disclosure and discovery activity in the Litigation is likely to involve production 11 of confidential, proprietary, or private information for which special protection from public 12 disclosure and from use for any purpose other than prosecuting the Litigation may be warranted. 13 The Litigation includes two separate cases that the Parties believe will involve some overlapping 14 discoverable information. Nothing in this Stipulated Protective Order, however, is intended to 15 concede the relevance or admissibility of any particular document or information that is produced 16 in connection with either case. The Parties expressly reserve all such objections. 17 Subject to this reservation, the Parties hereby stipulate to and petition the court to enter the 18 following Stipulated Protective Order (“Order”). The parties acknowledge that this Order does 19 not confer blanket protections on all disclosures or responses to discovery and that the protection 20 it affords extends only to the limited information or items that are entitled under the applicable 21 legal principles to confidential treatment. The parties further acknowledge, as set forth in Section 22 12 below, that this Order does not entitle them to file confidential information under seal; Civil 23 Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that 24 will be applied when a party seeks permission from the court to file material under seal. 25 26 27 2. DEFINITIONS 2.1 Challenging Party: a Party or non-party that challenges the designation of information or items under this Order. 28 13075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how 2 generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule 3 of Civil Procedure 26(c). 4 5 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staffs). 6 2.4 Designating Party: a Party or non-party that designates information or 7 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or 8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 9 2.5 Disclosure or Discovery Material: all items or information, regardless of 10 the medium or manner generated, stored, or maintained (including, among other things, 11 testimony, transcripts, and tangible things) that are produced or generated in disclosures or 12 responses to discovery in the Litigation. 13 2.6 Expert: a person with specialized knowledge or experience in a matter 14 pertinent to litigation who has been retained by a Party or its counsel to serve as an expert witness 15 or as a consultant in the Litigation. 16 2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 17 Information or Items: extremely sensitive “CONFIDENTIAL” information or items whose 18 disclosure to another Party or non-party would create a substantial risk of serious injury that could 19 not be avoided by less restrictive means. 20 2.8 House Counsel: attorneys who are employees of a party to the Litigation. 21 2.9 Outside Counsel of Record: attorneys who are not employees of a Party 22 but are retained to represent or advise a Party in the Litigation and have appeared on behalf of 23 that Party or are affiliated with a law firm that has appeared on behalf of that Party. 24 2.10 Party: any party to the Litigation, including all of its officers, directors, 25 employees, consultants, retained experts, and Outside Counsel of Record (and their support 26 staffs). 27 28 2.11 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in the Litigation. -213075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 2.12 Professional Vendors: persons or entities that provide litigation support 2 services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 3 organizing, storing, or retrieving data in any form or medium) and their employees and 4 subcontractors. 5 2.13 Protected Material: any Disclosure or Discovery Material that is 6 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 7 ONLY.” 8 9 10 11 2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 3. SCOPE The protections conferred by this Order cover not only Protected Material (as 12 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 13 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 14 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 15 However, the protections conferred by this Order do not cover the following information: (a) any 16 information that is in the public domain at the time of disclosure to a Receiving Party or becomes 17 part of the public domain after its disclosure to a Receiving Party as a result of publication not 18 involving a violation of this Order, including becoming part of the public record through trial or 19 otherwise; and (b) any information known to the Receiving Party prior to the disclosure or 20 obtained by the Receiving Party after the disclosure from a source who obtained the information 21 lawfully and under no obligation of confidentiality to the Designating Party. Any use of 22 Protected Material at trial shall be governed by a separate agreement or order. 23 The protections conferred by this Order also extend to all materials produced by 24 the Parties in two prior arbitration actions (Genoni v. Merrill Lynch, Pierce, Fenner & Smith Inc. 25 & Shaffer, FINRA No. 07-02208, and Shaffer v. Merrill Lynch, Pierce, Fenner & Smith Inc., 26 JAMS Ref. No. 1100059206) (the “prior arbitrations”) and designated as “Confidential” under a 27 prior-arbitration Confidentiality Agreement and Protective Order (“Confidentiality Agreement”). 28 Insofar as these prior-arbitration Confidentiality Agreements limited use of materials designated -313075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 as “Confidential,” they are heretofore superseded as concerning materials exchanged between the 2 Parties. Instead, any materials designated as “Confidential” that were exchanged between the 3 Parties in the prior arbitrations can be used in connection with the Litigation and will be treated as 4 “CONFIDENTIAL” under this Order unless the Designating Party informs the Receiving Party 5 that the designation is being removed or otherwise changed. The Parties expressly reserve the 6 right to object on any ground to use in evidence of materials covered by this paragraph. 7 4. 8 9 DURATION Even after final disposition of the Litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing 10 or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 11 dismissal of all claims and defenses in the Litigation, with or without prejudice; and (2) final 12 judgment therein after the completion and exhaustion of all appeals, rehearings, remands, trials, 13 or reviews, including the time limits for filing any motions or applications for extension of time 14 pursuant to applicable law. 15 16 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. 17 Each Party or non-party that designates information or items for protection under this Order must 18 take care to limit any such designation to specific material that qualifies under the appropriate 19 standards. The Designating Party must take care to designate for protection only those parts of 20 material, documents, items, or oral or written communications that qualify – so that other portions 21 of the material, documents, items, or communications for which protection is not warranted are 22 not swept unjustifiably within the ambit of this Order. 23 Mass, indiscriminate, or routinized designations are prohibited. Designations that 24 are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 25 unnecessarily encumber or delay the case development process or to impose unnecessary 26 expenses and burden on other parties) expose the Designating Party to sanctions. If it comes to a 27 Designating Party’s attention that information or items that it designated for protection do not 28 -413075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 qualify for protection, that Designating Party must promptly notify all other parties that it is 2 withdrawing the mistaken designation. 3 5.2 Manner and Timing of Designations. Except as otherwise provided in this 4 Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered, 5 material that qualifies for protection under this Order must be clearly designated before the 6 material is disclosed or produced. 7 Designation in conformity with this Order requires: 8 (a) for information in documentary form (e.g., paper or electronic documents, but 9 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 10 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 11 EYES ONLY” to each page that contains protected material. If only a portion or portions of the 12 material on a page qualifies for protection, the Producing Party also must clearly identify the 13 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for 14 each portion, the level of protection being asserted. 15 A Party or non-party that makes original documents or materials available for 16 inspection need not designate them for protection until after the inspecting Party has indicated 17 which material it would like copied and produced. During the inspection and before the 18 designation, all of the material made available for inspection shall be deemed “HIGHLY 19 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting party has identified the 20 documents it wants copied and produced, the Producing Party must determine which documents, 21 or portions thereof, qualify for protection under this Order. Then, before producing the specified 22 documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or 23 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains 24 Protected Material. If only a portion or portions of the material on a page qualifies for protection, 25 the Producing Party also must clearly identify the protected portion(s) and must specify, for each 26 portion, the level of protection being asserted. 27 28 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party may identify on the record, before the close of the deposition, hearing, or -513075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 other proceeding, all protected testimony and, for each portion, the level of protection being 2 asserted. The Designating Party may also within 30 days inform the court reporter and other 3 Parties of the specific portions of testimony as to which protection is sought, specifying the level 4 of protection being asserted. Only those portions of the testimony that are appropriately 5 designated for protection within the 30 days shall be covered by the provisions of this Order. 6 Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected 7 Material may not be disclosed to anyone except as permitted under this Order, and must be 8 separately bound by the court reporter, who must affix to the top of each page the legend 9 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) as 10 instructed by the Designating Party. 11 (c) for information produced in some form other than documentary and for any 12 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 13 container(s) in which the information is stored the appropriate legend (“CONFIDENTIAL” or 14 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”). If only a portion or portions of 15 the information or item warrant protection, the Producing Party, to the extent practicable, shall 16 identify the protected portions and specify, for each portion, the level of protection being asserted. 17 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 18 failure to designate qualified information or items as “CONFIDENTIAL” or “HIGHLY 19 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” does not, standing alone, waive the 20 Designating Party’s right to secure protection under this Order for such material. Upon timely 21 correction of a designation, the Receiving Party must make reasonable efforts to assure that the 22 material is treated in accordance with the provisions of this Order. 23 24 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party’s 25 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 26 economic burdens, or a significant disruption or delay of litigation, a Party does not waive its 27 right to challenge a confidentiality designation by electing not to mount a challenge promptly 28 after the original designation is disclosed. -613075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 2 resolution process by providing written notice (including email or fax) of each designation it is 3 challenging and describing the basis for each challenge. To avoid ambiguity as to whether a 4 challenge has been made, the written notice must recite that the challenge to confidentiality is 5 being made in accordance with this specific paragraph of the Protective Order. The parties, 6 acting in good faith, must begin the process by conferring directly (in voice to voice dialogue; 7 other forms of communication are not sufficient). In conferring, the Challenging Party must 8 explain the basis for its belief that the confidentiality designation was not proper and must give 9 the Designating Party an opportunity to review the designated material, to reconsider the 10 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 11 designation. A Challenging Party may proceed to the next stage of the challenge process only if 12 it has engaged in this meet and confer process first or establishes that the Designating Party is 13 unwilling to participate in the meet and confer process in a timely manner. 14 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without 15 court intervention, the Challenging Party may file and serve a motion to remove confidentiality 16 under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) that 17 identifies the challenged material and sets forth in detail the basis for the challenge. Each such 18 motion must be accompanied by a competent declaration affirming that the movant has complied 19 with the meet and confer requirements imposed in the preceding paragraph. 20 The burden of persuasion in any such challenge proceeding shall be on the 21 Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass 22 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 23 to sanctions. All parties shall continue to afford the material in question the level of protection to 24 which it is entitled under the Producing Party’s designation until the court rules on the challenge. 25 26 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is 27 disclosed or produced by another Party or by a non-party in connection with the Litigation solely 28 and exclusively for prosecuting, defending, or attempting to settle the Litigation. Such Protected -713075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 Material may be disclosed only to the categories of persons and under the conditions described in 2 this Order. When the Litigation has been terminated, a Receiving Party must comply with the 3 provisions of Section 14 below (FINAL DISPOSITION). This Order does not restrict in any 4 manner the use or disclosure by any Producing Party of any information in its own documents 5 and things. Protected Material must be stored and maintained by a Receiving Party at a location 6 and in a secure manner that ensures that access is limited to the persons authorized under this 7 Order. 8 9 10 7.2 Disclosure of “CONFIDENTIAL” Information 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 “CONFIDENTIAL” only to: 11 (a) the Receiving Party’s Outside Counsel of Record in the Litigation, as well as 12 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 13 information and who have signed the “Acknowledgement and Agreement to be Bound” that is 14 attached hereto as Exhibit A; 15 (b) the officers, directors, and employees (including House Counsel) of the 16 Receiving Party to whom disclosure is reasonably necessary and who have signed the 17 “Acknowledgement and Agreement to Be Bound” (Exhibit A); 18 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 19 reasonably necessary and who have signed the “Acknowledgement and Agreement to be Bound” 20 (Exhibit A); 21 (d) the court and its personnel; 22 (e) court reporters and their staff, professional jury or trial consultants, and 23 Professional Vendors to whom disclosure is reasonably necessary and who have signed the 24 “Acknowledgement and Agreement to Be Bound” (Exhibit A); 25 (f) during their depositions, witnesses to whom disclosure is reasonably necessary 26 and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A), unless 27 otherwise agreed by the Designating Party or ordered by the court. 28 -813075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 2 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 3 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 4 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in writing by 5 the Designating Party, a Receiving Party may disclose any information or item designated 6 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 7 (a) the Receiving Party’s Outside Counsel of Record, as well as employees of said 8 Outside Counsel of Record to whom it is reasonably necessary to disclose the information and 9 who have signed the “Acknowledgement and Agreement to Be Bound” that is attached hereto as 10 Exhibit A; 11 (b) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 12 reasonably necessary and who have signed the “Acknowledgement and Agreement to Be Bound” 13 (Exhibit A); 14 (c) the court and its personnel; 15 (d) court reporters, their staff, and Professional Vendors to whom disclosure is 16 reasonably necessary and who have signed the “Acknowledgement and Agreement to Be Bound” 17 (Exhibit A); 18 (e) the author of a document containing the information or the original source of 19 the information. 20 8. 21 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 22 If a Receiving Party is served with a subpoena or a court order issued in other 23 litigation that compels disclosure of any information or items designated in the Litigation as 24 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, that party 25 must: 26 (a) promptly notify in writing (by email or fax, if possible) the Designating Party, 27 and in no event more than 3 business days after receiving the subpoena or order. Such 28 notification shall include a copy of the subpoena or court order; -913075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 (b) promptly notify in writing the party who caused the subpoena or order to issue 2 in the other litigation that some or all of the material covered by the subpoena or order is subject 3 to this Order. Such notification shall include a copy of this Order; and 4 5 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Receiving Party 7 served with the subpoena or court order shall not produce any information designated in this 8 actions as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 9 before a determination by the court from which the subpoena or order issued, unless the 10 Receiving Party has obtained the Designating Party’s permission. The Designating Party shall 11 bear the burden and expense of seeking protection in that court of its confidential material – and 12 nothing in these provisions should be construed as authorizing or encouraging a Receiving Party 13 to disobey a lawful directive from another court. 14 15 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 16 The terms of this Order are applicable to information produced by a non-party in 17 the Litigation and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY.” Such information produced by non-parties in connection with 19 the Litigation is protected by the remedies and relief provided by this Order. Nothing in these 20 provisions should be construed as prohibiting a non-party from seeking additional protections. 21 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 22 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 23 Protected Material to any person or in any circumstances not authorized under this Order, the 24 Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 25 disclosures; (b) use its best efforts to retrieve all unauthorized copies of the Protected Material; 26 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 27 this Order, and (d) request such persons to execute the “Acknowledgement and Agreement to Be 28 Bound” that is attached hereto as Exhibit A. - 10 13075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 2 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 3 When a Producing Party gives notice to Receiving Parties that certain 4 inadvertently produced material is subject to a claim of privilege or other protection, the 5 obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 6 26(b)(5)(B). 7 Pursuant to Federal Rule of Evidence 502(d) and (e), neither the attorney-client privilege 8 nor the work product doctrine shall be waived by disclosure of any document or information by 9 any Party to any other Party or by any non-party providing documents in response to a subpoena 10 issued in connection with the Litigation. No Party shall assert that any other Party or non-party 11 has waived any such privilege or protection solely as a result of such disclosure of documents or 12 information subject to a claim of privilege or protection, whether or not such production or 13 disclosure was preceded by any review or effort to identify such privileged or protected 14 documents or information prior to production. Nothing contained herein, however, shall preclude 15 or restrict the right of any Party or non-party (1) to perform a review for the purpose of 16 identifying privileged or protected documents or information prior to the disclosure thereof if the 17 Party or non-party chooses to do so, or (2) to withhold the production or disclosure of any 18 document or information that the Party or non-party believes to be privileged or protected. 19 Except as expressly set forth herein, nothing in this Order shall modify the law regarding 20 the attorney-client privilege, the work product doctrine, or trade secret or other confidential 21 research, development, or commercial information. 22 12. FILING PROTECTED MATERIAL 23 Without written permission from the Designating Party or a court order secured 24 after appropriate notice to all interested persons, a Party may not file in the public record in the 25 Litigation any Protected Material. A Party that seeks to file under seal any Protected Material 26 must comply with Civil Local Rule 79-5. 27 28 - 11 13075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 13. 2 3 MISCELLANEOUS 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. 4 13.2 Right to Assert Other Objections. By stipulating to the entry of this Order, 5 no Party waives any right it otherwise would have to object to disclosing or producing any 6 information or item on any ground not addressed in this Order. Similarly, no Party waives any 7 right to object on any ground to use in evidence of any of the material covered by this Order. 8 9 14. FINAL DISPOSITION Within 60 days after the final disposition of the Litigation (as defined in Section 10 4), each Receiving Party must return all Protected Material to the Producing Party or destroy such 11 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 12 compilations, summaries, and any other format reproducing or capturing any of the Protected 13 Material, with the exception of materials inadvertently created through, and stored in, a Party’s or 14 its Counsel’s disaster-recovery backup system. Whether the Protected Material is returned or 15 destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if 16 not the same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies 17 (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) 18 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries 19 or any other format reproducing or capturing any of the Protected Material, with the exception of 20 materials inadvertently created through, and stored in, a Party or its Counsel’s disaster-recovery 21 backup system. Notwithstanding this provision, Counsel are entitled to retain an archival copy of 22 all pleadings, motion papers, transcripts, legal memoranda, correspondence, deposition and trial 23 exhibits, expert reports, attorney work product, and consultant and expert work product, even if 24 such materials contain Protected Material. Any such archival copies that contain or constitute 25 Protected Material remain subject to this Order as set forth in Section 4 (DURATION). 26 27 28 - 12 13075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD 2 3 4 DATED: February _____, 2011 Bartko, Zankel. Tarrant & Miller 5 By: 6 Robert H. Bunzel Attorneys for Plaintiffs 7 8 9 DATED: February 11, 2011 Munger, Tolles & Olson LLP 10 11 By: 12 /s/ Victoria L. Boesch Victoria L. Boesch Attorneys for Defendants 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 13 13075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 2 3 PURSUANT TO STIPULATION, IT IS SO ORDERED. 4 5 6 7 2/15/2011 DATED: ______________________ The Honorable Claudia Wilken United States District Court Northern District of California 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 13075969.1 STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW S 1 EXHIBIT A 2 ACKNOWLEDGEMENT AND AGREEMENT TO BE BOUND 3 I, __________________________________ [print or type full name] of 4 _______________________________________________________ [print or type full address], 5 declare under penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Northern District of 7 California on ___________ in the case of Martin v. Merrill Lynch, Pierce, Fenner & Smith, 8 Incorporated, Case No. CV-10-04020-CW. I agree to comply with and to be bound by all the 9 terms of this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 11 promise that I will not disclose in any manner any information or item that is subject to this 12 Stipulated Protective Order to any person or entity except in strict compliance with the provisions 13 of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court for 15 the 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. 17 I hereby appoint ________________________________ [print or type full name] 18 of ______________________________________________________________ [print or type full 19 address and telephone number] as my California agent for service of process in connection with 20 this action or any proceedings related to enforcement of this Stipulated Protective Order. 21 22 Date: ________________________________ 23 City and State where sworn and signed: ________________________________ 24 Printed Name: ________________________________ [printed name] 25 26 27 Signature: ____________________________________ [signature] 28 13075969.1 -1- STIPULATED PROTECTIVE ORDER CASE NO.: CV-10-4020-CW

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