Hitachi Data Systems Corporation v. The Richardson Company, No. 5:2015cv00487 - Document 50 (N.D. Cal. 2015)
Court Description: ORDER GRANTING STIPULATED PROTECTIVE ORDER re 49 by Judge Paul S. Grewal on October 5, 2015 (psglc2, COURT STAFF) (Filed on 10/5/2015)
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Hitachi Data Systems Corporation v. The Richardson Company Doc. 50 ROBERT J. ROMERO (SBN 136539) rromero@hinshawlaw.com EDWARD F. DONOHUE (SBN 112730) edonohue@hinshawlaw.com JARED W. MATHESON (SBN 275459) jmatheson@hinshawlaw.com HINSHAW & CULBERTSON LLP One California Street, 18th Floor San Francisco, CA 94111 Telephone: (415) 362-6000 Facsimile: (415) 834-9070 1 STUART C. CLARK (SBN 124152) clark@carrferrell.com 2 CARR & FERRELL LLP 120 Constitution Drive 3 Menlo Park, California 94025 Telephone: (650) 812-3400 4 Facsimile: (650) 812-3444 5 JOHN A. BOUDET (Fla. Bar No. 515670) john.boudet@gray-robinson.com 6 SHAYNE A. THOMAS (Fla. Bar No. 0585025) shayne.thomas@gray-robinson.com 7 GRAY | ROBINSON, P.A. 301 East Pine Street, Suite 1400 8 Orlando, Florida 32801 Telephone: (407) 843-8880 9 Facsimile: (407) 244-5690 **Admitted Pro Hac Vice 10 Attorneys for Plaintiff, 11 HITACHI DATA SYSTEMS CORPORATION Attorneys for Defendant, THE RICHARDSON COMPANY 12 13 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA – SAN JOSE DIVISION 14 15 HITACHI DATA SYSTEMS CORPORATION, a Delaware corporation, 16 Plaintiff, 17 vs. CASE NO.: 5:15-cv-00487-LHK(PSG) STIPULATED PROTECTIVE ORDER 18 THE RICHARDSON COMPANY, a 19 Pennsylvania corporation, Defendant. 20 21 22 23 / 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 24 confidential, proprietary, or private information for which special protection from public disclosure 25 26 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 27 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 28 Order. The parties acknowledge that this Order does not confer blanket protections on all 1 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) Dockets.Justia.com 1 disclosures or responses to discovery and that the protection it affords from public disclosure and 2 use extends only to the limited information or items that are entitled to confidential treatment under 3 the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 4 that this Stipulated Protective Order does not entitle them to file confidential information under 5 seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that 6 will be applied when a party seeks permission from the court to file material under seal. 7 8 9 2. DEFINITIONS 2.1. Challenging Party: a Party or Non-Party that challenges the designation of 10 information or items under this Order. 11 2.2. “CONFIDENTIAL” Information or Items: information (regardless of how it is 12 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 13 14 Civil Procedure 26(c). 2.3. Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 15 16 17 as their support staff). 2.4. Designating Party: a Party or Non-Party that designates information or items that it 18 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 19 CONFIDENTIAL - ATTORNEYS’ EYES ONLY”. 20 21 2.5. Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, 22 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 23 24 25 responses to discovery in this matter. 2.6. Expert: a person with specialized knowledge or experience in a matter pertinent to 26 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 27 consultant in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, 28 2 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s 2 competitor. 3 2.7. “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or 4 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another 5 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less 6 restrictive means. 7 2.8. House Counsel: attorneys who are employees of a party to this action. House 8 Counsel does not include Outside Counsel of Record or any other outside counsel. 9 10 2.9. Non-Party: any natural person, partnership, corporation, association, or other legal 11 entity not named as a Party to this action. 12 13 14 2.10. Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 15 16 17 18 2.11. Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.12. Producing Party: a Party or Non-Party that produces Disclosure or Discovery 19 Material in this action. 20 21 2.13. Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 22 storing, or retrieving data in any form or medium) and their employees and subcontractors. 23 24 2.14. Protected Material: any Disclosure or Discovery Material that is designated as 25 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” 26 2.15. Receiving Party: a Party that receives Disclosure or Discovery Material from a 27 Producing Party. 28 3. SCOPE 3 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 The protections conferred by this Stipulation and Order cover not only Protected Material 2 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 3 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 4 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 5 However, the protections conferred by this Stipulation and Order do not cover the following 6 information: (a) any information that is in the public domain at the time of disclosure to a 7 8 9 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public 10 record through trial or otherwise; and (b) any information known to the Receiving Party prior to the 11 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 12 information lawfully and under no obligation of confidentiality to the Designating Party. Any use 13 14 of Protected Material at trial shall be governed by a separate agreement or order. 4. DURATION 15 16 Even after final disposition of this litigation, the confidentiality obligations imposed by this 17 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 18 otherwise directs. Final disposition shall be deemed to be the later of (l) dismissal of all claims and 19 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 20 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 21 time limits for filing any motions or applications for extension of time pursuant to applicable law. 22 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 23 24 25 Non-Party that designates information or items for protection under this Order must take care to 26 limit any such designation to specific material that qualifies under the appropriate standards. To the 27 extent it is practical to do so, the Designating Party must designate for protection only those parts of 28 material, documents, items, or oral or written communications that qualify — so that other portions 4 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 of the material, documents, items, or communications for which protection is not warranted are not 2 swept unjustifiably within the ambit of this Order. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 4 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 5 encumber or retard the case development process or to impose unnecessary expenses and burdens 6 on other parties) expose the Designating Party to sanctions. 7 8 9 If it comes to a Designating Party’s attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially 10 asserted, that Designating Party must promptly notify all other parties that it is withdrawing the 11 mistaken designation. 12 13 14 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the Disclosure or 15 16 17 18 Discovery Material is disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but 19 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 20 affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 21 ONLY” to each page that contains protected material. If only a portion or portions of the material 22 on a page qualifies for “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” protection, 23 24 the Producing Party also must clearly identify such “HIGHLY CONFIDENTIAL - ATTORNEYS’ 25 EYES ONLY” portion(s) (e.g., by making appropriate markings in the margins). 26 A Party or Non-Party that makes original documents or materials available for inspection 27 need not designate them for protection until after the inspecting Party has indicated which material 28 it would like copied and produced. During the inspection and before the designation, all of the 5 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL - 2 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants 3 copied and produced, the Producing Party must determine which documents qualify for protection 4 under this Order. Then, before producing the specified documents, the Producing Party must affix 5 the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ 6 EYES ONLY”) to each page that contains Protected Material. 7 8 9 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other 10 proceeding, all protected testimony and specify the level of protection being asserted. When it is 11 impractical to identify separately each portion of testimony that is entitled to protection and it 12 appears that substantial portions of the testimony may qualify for protection, the Designating Party 13 14 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 days from the date that the deposition transcript is received by counsel for the 15 16 17 Designating Party to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted. Only those portions of the testimony that are 18 appropriately designated for protection within the 21 days shall be covered by the provisions of this 19 Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or up 20 to 21 days afterwards if that period is properly invoked, that the entire transcript shall be treated as 21 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” 22 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 23 24 other proceeding to include Protected Material so that the other parties can ensure that only 25 authorized individuals who have signed the “Acknowledgement and Agreement to Be Bound” 26 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 27 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 28 CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” 6 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 Transcripts containing Protected Material shall have an obvious legend on the title page that 2 the transcript contains Protected Material, and the title page shall be followed by a list of all pages 3 (including line numbers as appropriate) that have been designated as Protected Material and the 4 level of protection being asserted by the Designating Party. The Designating Party shall inform the 5 court reporter of these requirements. Prior to the expiration of a 21-day period for designation any 6 transcript shall be treated as if it had been designated “HIGHLY CONFIDENTIAL — 7 8 9 10 ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as actually designated. (c) for information produced in some form other than documentary and for any other 11 tangible items, that the Producing Party affix in a prominent place on the exterior of the container or 12 containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 13 14 CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected 15 16 17 portion(s) and specify the level of protection being asserted. 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 18 designate qualified information or items does not, standing alone, waive the Designating Party’s 19 right to secure protection under this Order for such material. Upon timely correction of a 20 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 21 in accordance with the provisions of this Order. 22 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 23 24 25 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 26 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 27 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 28 7 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 challenge a confidentiality designation by electing not to mount a challenge promptly after the 2 original designation is disclosed. 3 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 4 by providing written notice of each designation it is challenging and describing the basis for each 5 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 6 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 7 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 8 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 9 10 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 11 Party must explain the basis for its belief that the confidentiality designation was not proper and 12 must give the Designating Party an opportunity to review the designated material, to reconsider the 13 14 circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it 15 16 has engaged in this meet and confer process first or establishes that the Designating Party is 17 unwilling to participate in the meet and confer process in a timely manner. 18 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 19 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 20 Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 21 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 22 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 23 24 competent declaration affirming that the movant has complied with the meet and confer 25 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 26 motion including the required declaration within 21 days (or 14 days, if applicable) shall 27 automatically waive the confidentiality designation for each challenged designation. In addition, 28 the Challenging Party may file a motion challenging a confidentiality designation at any time if 8 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 there is good cause for doing so, including a challenge to the designation of a deposition transcript 2 or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a 3 competent declaration affirming that the movant has complied with the meet and confer 4 requirements imposed by the preceding paragraph. 5 6 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 or impose 7 8 9 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a motion 10 to retain confidentiality as described above, all parties shall continue to afford the material in 11 question the level of protection to which it is entitled under the Producing Party’s designation until 12 the court rules on the challenge. 13 14 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 15 16 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 17 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 18 the categories of persons and under the conditions described in this Order. When the litigation has 19 been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL 20 DISPOSITION). 21 Protected Material must be stored and maintained by a Receiving Party at a location and in a 22 secure manner that ensures that access is limited to the persons authorized under this Order. 23 24 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 25 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 26 information or item designated “CONFIDENTIAL” only to: 27 28 9 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 (a) the Receiving Party’s Counsel, as well as employees of said Counsel to whom it is 2 reasonably necessary to disclose the information for this litigation and who have signed the 3 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A; 4 (b) the officers, directors, and employees of the Receiving Party to whom disclosure is 5 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 6 to Be Bound” (Exhibit A); 7 8 9 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 10 to Be Bound” (Exhibit A); 11 (d) the court and its personnel; 12 (e) court reporters and their staff, professional jury or trial consultants, and Professional 13 14 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the Acknowledgement and Agreement to Be Bound” (Exhibit A); 15 16 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 17 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 18 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 19 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 20 bound by the court reporter and may not be disclosed to anyone except as permitted under this 21 Stipulated Protective Order; 22 (g) the author or recipient of a document containing the information or a custodian or 23 24 25 other person who otherwise possessed or knew the information; and (h) persons to whom the Designating Party agrees in writing or on the record of a 26 deposition or hearing that disclosure may be made. 27 7.3 Disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” 28 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 10 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 2 CONFIDENTIAL - ATTORNEYS’ EYES ONLY” only to: 3 (a) the Receiving Party’s Counsel, as well as employees of said Counsel to whom it is 4 reasonably necessary to disclose the information for this Litigation and who have signed the 5 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A; 6 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for 7 8 9 this Litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed; 10 (c) the court and its personnel; 11 (d) court reporters and their staff, professional jury or trial consultants, and Professional 12 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 13 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (e) the author or recipient of a document containing the information or a custodian or 15 16 17 other person who otherwise possessed or knew the information; and (f) persons to whom the Designating Party agrees in writing or on the record of a 18 deposition or hearing that disclosure may be made. 19 8. 20 21 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels 22 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 23 “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” that Party must: 24 25 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 26 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 27 28 11 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 other litigation that some or all of the material covered by the subpoena or order is subject to this 2 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 3 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 4 Designating Party whose Protected Material may be affected. 5 6 If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL” or 7 8 9 ‘HIGHLY CONFIDENTIAL -- ATTORNEYS’ EYES ONLY” before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party’s 10 permission. The Designating Party shall bear the burden and expense of seeking protection in that 11 court of its confidential material — and nothing in these provisions should be construed as 12 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 13 14 another court. 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party in 15 16 17 this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - 18 ATTORNEYS’ EYES ONLY”. Such information produced by Non-Parties in connection with this 19 20 litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions 21 should be construed as prohibiting a Non-Party from seeking additional protections. 22 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 23 Party’s confidential information in its possession, and the Party is subject to an agreement with the 24 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 25 1. promptly notify in writing the Requesting Party and the Non-Party that some or all of 26 the information requested is subject to a confidentiality agreement with a Non-Party; 27 28 12 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in 2 this litigation, the relevant discovery request(s), and a reasonably specific description of the 3 information requested; and 4 3. make the information requested available for inspection by the Non-Party. 5 (c) If the Non-Party fails to object or seek a protective order from this court within 14 6 days of receiving the notice and accompanying information, the Receiving Party may produce the 7 8 9 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or 10 control that is subject to the confidentiality agreement with the Non-Party before a determination by 11 the court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 12 seeking protection in this court of its Protected Material. 13 14 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 15 16 17 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 18 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 19 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 20 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 21 Agreement to Be Bound” that is attached hereto as Exhibit A. 22 11. 23 24 25 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the 26 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision 27 28 is not intended to modify whatever procedure may be established in an E-discovery order that 13 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 2 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 3 communication or information covered by the attorney-client privilege or work product protection, 4 the parties may incorporate their agreement in the stipulated protective order submitted to the court. 5 6 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 7 8 9 seek its modification by the court in the future. 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order 10 no Party waives any right it otherwise would have to object to disclosing or producing any 11 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 12 Party waives any right to object on any ground to use in evidence any of the material covered by 13 14 this Protective Order. 12.3 Filing Protected Material. Without written permission from the Designating Party or 15 16 a court order secured after appropriate notice to all interested persons, a Party may not file in the 17 public record in this action any Protected Material. A Party that seeks to file under seal any 18 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 19 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 20 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing 21 that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled 22 to protection under the law. If a Receiving Party’s request to file Protected Material under seal 23 24 pursuant to Civil Local Rule 79-5(e) is denied by the court, then the Receiving Party may file the 25 Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise 26 instructed by the court. 27 28 14 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 2 13. FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 3 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 4 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 5 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 6 the Protected Material is returned or destroyed, the Receiving Party must submit a written 7 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 8 by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material 9 10 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 11 abstracts, compilations, summaries or any other format reproducing or capturing any of the 12 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy 13 14 of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 15 16 and expert work product, even if such materials contain Protected Material. Any such archival 17 copies that contain or constitute Protected Material remain subject to this Protective Order as set 18 forth in Section 4 (DURATION). 19 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 20 Dated: October 2, 2015 CARR & FERRELL LLP 21 22 23 24 By: /s/ Stuart C. Clark - and GRAY | ROBINSON, P.A. 25 26 27 28 By: /s/ John A. Boudet Attorneys for Plaintiff, HITACHI DATA SYSTEMS CORPORATION 15 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) 1 2 3 Dated: October 2, 2015 HINSHAW & CULBERTSON LLP By: /s/ Robert J. Romero 4 5 Attorneys for Defendant, THE RICHARDSON COMPANY 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG) EXHIBIT A 1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 3 I, ___________ _____________ [print or type full name], of _____________________ 4 _________________________________________________ [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the Stipulated Protective 6 Order that was issued by the United States District Court for the Northern District of California on 7 8 9 October ____, 2015 in the case of Hitachi Data Systems Corporation v. The Richardson Company, Case No. 5:15-cv-00487-LHK (PSG). I agree to comply with and to be bound by all the terms of 10 this Stipulated Protective Order and I understand and acknowledge that failure to so comply could 11 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 12 not disclose in any manner any information or item that is subject to this Stipulated Protective Order 13 14 to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the 15 16 17 18 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint ____________ __________ [print or type full name] of 19 _______________________ [print or type full address and telephone number] as my California 20 agent for service of process in connection with this action or any proceedings related to enforcement 21 of this Stipulated Protective Order. 22 Date: 23 City and State where sworn and signed: 24 Printed name: 25 [printed name] 26 Signature: [signature] 27 \338066\1 - # 9088311 v1 28 18 STIPULATED PROTECTIVE ORDER – CASE NO. 5:15-cv-00487-LHK (PSG)
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