Bally Technologies, Inc. v. Business Intelligence Systems Solutions, Inc., No. 2:2010cv00440 - Document 30 (D. Nev. 2010)
Court Description: ORDER GRANTING 29 Stipulated PROTECTIVE ORDER. See Order for details. Signed by Magistrate Judge Robert J. Johnston on 8/13/10. (Copies have been distributed pursuant to the NEF - ECS)
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Bally Technologies, Inc. v. Business Intelligence Systems Solutions, Inc. 1 2 3 4 5 6 7 Doc. 30 Michael D. Rounds Nevada Bar No. 4734 Melissa P. Barnard Nevada Bar No. 4916 Adam K. Yowell Nevada Bar No. 11748 WATSON ROUNDS 5371 Kietzke Lane Reno, NV 89511-2083 Telephone: (775) 324-4100 Facsimile: (775) 333-8171 E-Mail: mrounds@watsonrounds.com E-Mail: mbarnard@watsonrounds.com E-Mail: ayowell@watsonrounds.com 8 9 Attorneys for Plaintiff/CounterDefendant BALLY TECHNOLOGIES, INC. 10 11 12 UNITED STATES DISTRICT COURT DISTRICT OF NEVADA 13 14 15 16 17 18 19 BALLY TECHNOLOGIES, INC., a Nevada ) Corporation, ) ) Plaintiff, ) ) v. ) ) BUSINESS INTELLIGENCE SYSTEMS ) SOLUTIONS, INC., a California corporation, ) ) ) Defendant. ) ) Civil Action No. 2:10-cv-440-PMP-RJJ STIPULATED PROTECTIVE ORDER 20 21 22 23 24 25 26 27 28 Dockets.Justia.com 1 WHEREAS Plaintiff Bally Technologies, Inc. (“Bally”) and Defendant Business 2 Intelligence Systems Solutions, Inc. (“BIS2”) are parties to the above referenced patent 3 infringement case (hereinafter, the "Litigation"); 4 WHEREAS, discovery in this Litigation may involve the disclosure of certain 5 documents, things and information in the possession, custody or control of a party or a non- 6 party that constitute or contain trade secrets or other confidential research, development, 7 manufacture, regulatory, financial, marketing or other competitive information within the 8 meaning of Rule 26(c) of the Federal Rules of Civil Procedure; and 9 10 WHEREAS, good cause exists for entry of this Order, see Fed. R Civ. P. 26(c), Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994); and 11 12 WHEREAS, this Protective Order provides reasonable restrictions on the disclosure of such sensitive materials of a confidential nature; and 13 14 WHEREAS, all parties agree to the terms of this Protective Order to protect their confidential documents and information; 15 THEREFORE, in view of the foregoing and because the parties hereto, by and through 16 their respective counsel, have stipulated to the entry of the following Protective Order 17 pursuant to Fed. R. Civ. P. 26(c), and the Court having determined good cause exists for entry 18 of this Order, 19 IT IS HEREBY STIPULATED, AGREED, ORDERED BY THE COURT, as follows: 20 1. 21 Scope of Protective Order. This Order shall apply to all information, documents, things, responses to discovery, 22 and testimony produced or within the scope of discovery in this Litigation, including, without 23 limitation, all documents or things produced in response to requests for the production of 24 documents and things or subpoenas, answers to interrogatories, responses to requests for 25 admission, testimony adduced at depositions and upon written questions, all other discovery 26 taken pursuant to the Federal Rules of Civil Procedure, and any other information furnished, 27 directly or indirectly, by or on behalf of any party to this Litigation or any non-party. The 28 -2Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 party or non-party producing such information is referred to both in the singular and in the 2 plural hereafter as the "Producing Party," and the party receiving such information is referred 3 to hereafter as the "Receiving Party." 4 2. 5 6 7 Definitions. The terms "CONFIDENTIAL INFORMATION" and "HIGHLY CONFIDENTIAL INFORMATION" as used herein, are defined as follows: A. "CONFIDENTIAL INFORMATION" means any form of trade secret or other 8 confidential research, development, or commercial information within the 9 meaning of Fed. R. Civ. P. 26(c). The designation of ''CONFIDENTIAL 10 INFORMATION" by a Producing Party constitutes its representation that it 11 reasonably and in good faith believes that the designated material constitutes or 12 contains information in one or more of the foregoing categories within the 13 meaning of Fed. R. Civ. P. 26(c). Further, CONFIDENTIAL 14 INFORMATION includes: (a) all copies, extracts, and complete or partial 15 summaries prepared from CONFIDENTIAL INFORMATION and (b) portions 16 of briefs, memoranda, or any other writings filed with the Court and exhibits 17 thereto that contain, summarize, or reflect the content of any such 18 CONFIDENTIAL INFORMATION. 19 B. "HIGHLY CONFIDENTIAL INFORMATION" means CONFIDENTIAL 20 INFORMATION that, in addition to meeting the requirements of paragraph A, 21 is of such a sensitive nature that it supports a reasonable and good faith belief 22 that granting access to such information to an employee or officer of a 23 competitor will place the Producing Party at a competitive disadvantage. 24 Further, HIGHLY CONFIDENTIAL INFORMATION includes: (a) all copies, 25 extracts, and complete or partial summaries prepared from HIGHLY CONFIDENTIAL 26 INFORMATION and (b) portions of briefs, memoranda, or any other writings filed with the 27 28 -3Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 Court and exhibits thereto that contain, summarize, or reflect the content of any such 2 HIGHLY CONFIDENTIAL INFORMATION. 3 3. Non-Parties Under The Protective Order. 4 This Protective Order shall apply to any information provided by a non-party in 5 discovery in the Litigation. With respect to such information provided and so designated by a 6 non-party, such non-party has the same rights and obligations under this Protective Order as 7 held by the Parties to the Litigation, and the Parties will treat such information in accordance 8 with this Protective Order. 9 4. Marking Documents and Things. 10 Each page of a document and each thing that constitutes or contains CONFIDENTIAL 11 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION shall be labeled or marked 12 respectively with the legend "CONFIDENTIAL INFORMATION" or "HIGHLY 13 CONFIDENTIAL INFORMATION—ATTORNEYS EYES ONLY" when the document or 14 thing is produced to the Receiving Party. To the extent practical, the "CONFIDENTIAL 15 INFORMATION" or "HIGHLY CONFIDENTIAL INFORMATION—ATTORNEYS EYES 16 ONLY" legend shall be placed near the production number. Anything that cannot be so 17 labeled or marked on its face shall be labeled or marked by placing the appropriate legend on 18 a container or package in which it is produced or on a tag attached thereto. Material produced 19 without any such legend shall not be subject to the protections afforded such information 20 under this Protective Order unless otherwise agreed by the Parties, ordered by the Court, or 21 designated in accordance with paragraph 8 of this Protective Order. Inspection of 22 CONFIDENTIAL OR HIGHLY CONFIDENTIAL materials shall be conducted only by 23 persons eligible under paragraphs 11 and 12 below. Such persons shall initially treat all 24 materials disclosed during any inspection as containing HIGHLY CONFIDENTIAL 25 INFORMATION. If the inspected materials are produced, such materials shall be thereafter 26 treated by the Receiving Party in accordance with the confidentiality designation made at the 27 time of their production. 28 -4Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 5. Marking Interrogatories, Requests for Admissions, and Deposition Testimony on 2 Written Questions. 3 Each page of any response to interrogatories, response to requests for admissions, and 4 deposition testimony upon written questions that constitutes or contains CONFIDENTIAL 5 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION shall be labeled or marked 6 respectively with the legend "CONFIDENTIAL INFORMATION" or "HIGHLY 7 CONFIDENTIAL INFORMATION—ATTORNEYS EYES ONLY" when the response or 8 testimony is served upon the Receiving Party. Such responses or testimony served without 9 any such legend shall not be subject to the protections afforded such information under this 10 Protective Order unless otherwise agreed by the Parties, ordered by the Court, or designated 11 in accordance with paragraph 8 of this Protective Order. 12 6. 13 Marking Deposition Testimony. Any portion of a deposition may be designated CONFIDENTIAL INFORMATION or 14 HIGHLY CONFIDENTIAL INFORMATION during the deposition itself. Regardless of 15 whether such a designation is made during the deposition, all testimony adduced at 16 depositions and any transcripts thereof will be presumptively treated as HIGHLY 17 CONFIDENTIAL INFORMATION for a grace period beginning from the date of the 18 deposition until twenty (20) days after a complete copy of the transcript has been provided to 19 the deponent or the deponent's counsel. Within this twenty-day grace period, any party may 20 designate any additional portion of any deposition transcript as CONFIDENTIAL 21 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION by specifying in writing 22 to counsel the portion of the transcript believed to constitute or contain CONFIDENTIAL 23 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION by page and line number. 24 If no such designation is made during a deposition or the twenty-day grace period, the 25 transcript from such deposition shall not be subject to the protections afforded such 26 information under this Protective Order unless otherwise agreed by the Parties, ordered by the 27 Court, or designated in accordance with paragraph 8 of this Protective Order. 28 -5Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 7. 2 Limitations on Attendance at Depositions. Counsel for a Producing Party may request that all persons other than the witness, the 3 court reporter, those individuals specified in paragraphs 11 and 12, and counsel for the 4 witness (if a non-party witness) leave the deposition room during any portion of a deposition 5 that inquires about or discloses subject matter that such counsel deems CONFIDENTIAL 6 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION. If such individuals fail 7 to comply with such a request, the requesting counsel for the Producing Party may seek relief 8 from the appropriate Court, and, pending resolution of that request, instruct or request the 9 witness not to answer questions relating to, or to limit disclosure of, the CONFIDENTIAL 10 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION at issue. 11 8. Inadvertent Production of CONFIDENTIAL INFORMATION or HIGHLY 12 CONFIDENTIAL INFORMATION. 13 If a Producing Party inadvertently or mistakenly produces any CONFIDENTIAL 14 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION without labeling, 15 marking, or designating it as provided in this Protective Order, the Producing Party may, 16 within ten (10) business days after learning of the inadvertent or mistaken production, give 17 written notice to the Receiving Party that the material at issue is or contains 18 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION and 19 should be treated as such in accordance with this Protective Order. In such instance, the 20 Producing Party shall also provide copies of the material at issue properly marked as required 21 under this Protective Order. Upon receipt of such notice and properly marked material, the 22 Receiving Party shall treat such information consistent with the re-designation. Disclosure of 23 such information to persons not authorized to receive CONFIDENTIAL INFORMATION or 24 HIGHLY CONFIDENTIAL INFORMATION prior to receipt of such notice shall not be 25 deemed a violation of this Protective Order. 26 27 28 Should any CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION be disclosed, through inadvertence or otherwise, by the receiving party to -6Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 any person or party not authorized under this Protective Order, then the receiving party shall 2 (a) use its best efforts to obtain the return of any such material or information and to bind such 3 person to the terms of this Protective Order, (b) within three (3) business days of the 4 discovery of such disclosure, inform such person of all provisions of this Protective Order and 5 request such person to sign the Undertaking in the form attached hereto as Exhibit A, and (c) 6 within five (5) business days of the discovery of such disclosure, provide written notice to the 7 producing party of the unauthorized disclosure, including the identity of the unauthorized 8 recipient and the confidential information disclosed. 9 9. Inadvertent Production of Privileged or Work Product Information. 10 The inadvertent production during discovery of any document or other information 11 subject to the attorney-client privilege, work product immunity, or other privilege shall be 12 without prejudice to any claim that such material is privileged or protected from discovery. 13 Upon receiving a written request to do so from the Producing Party, the Receiving Party shall 14 immediately return to the Producing Party any documents or tangible items that the Producing 15 Party represents are covered by a claim of attorney-client privilege or work product immunity 16 and were inadvertently or mistakenly produced. The Receiving Party also shall destroy any 17 extra copies or summaries of, or notes relating to, any such inadvertently or mistakenly 18 produced information. The Receiving Party may move the Court for an Order compelling the 19 production of such information, but such a motion does not relieve the Receiving Party of 20 complying with the immediately preceding two sentences of this Order. The Producing Party 21 shall retain copies of all returned documents and tangible things, and if such a motion is filed 22 by the Receiving Party, shall upon request provide copies to the Court of the documents, 23 things, or information that are the subject of the motion. The party claiming privilege or work 24 product protection shall have the burden of proving that such privilege or work product 25 protection exists. Notwithstanding the above, recognizing the need for the parties to prepare 26 their cases based on the discovery that is produced, if any information, document, or tangible 27 thing is used or referenced in a court hearing, deposition, motion, expert report, or pretrial 28 -7Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 order, or is otherwise used openly in the case, any claim of inadvertent production must be 2 made within ten (10) business days after such use. 3 10. 4 Disclosure and Use of Designated Materials. Subject to the limitations and restrictions of this Protective Order and any further order 5 of the Court, material designated CONFIDENTIAL INFORMATION or HIGHLY 6 CONFIDENTIAL INFORMATION as described in this Protective Order may be used in 7 testimony at trial, offered into evidence at trial and/or other hearings, and used to prepare for 8 and conduct discovery, to prepare for trial, and to support or oppose any motion in the 9 Litigation. Such material shall remain confidential at trial, and during any appeals to the 10 Litigation, except to the extent made public in open court, and may not be used for any 11 purpose or in any manner other than as permitted by this Protective Order or by further order 12 of the Court. 13 Material designated CONFIDENTIAL INFORMATION or HIGHLY 14 CONFIDENTIAL INFORMATION, and all information derived therefrom, shall be used 15 only by persons permitted access to such information under this Protective Order, shall not be 16 disclosed by the Receiving Party to any party or person not entitled under this Protective 17 Order to have access to such material, and shall not be used by the Receiving Party for any 18 purpose other than in connection with this Litigation, and expressly prohibiting, without 19 limitation, use for any research, development, manufacture, patent prosecution, financial, 20 commercial, marketing, regulatory, business, or other competitive purpose. Absent consent of 21 the Producing Party and/or further order of this Court, all persons receiving information 22 designated CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 23 INFORMATION are expressly prohibited from using or disclosing such information in 24 connection with any practice before or communication with (including, but not limited to, 25 patent applications, citizens petitions, and other filings) the United States Patent and 26 Trademark Office. 27 28 -8Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 2 3 4 11. Access to CONFIDENTIAL INFORMATION. CONFIDENTIAL INFORMATION as described in this Protective Order may be disclosed to: A. Litigation counsel of record for the Parties and their data entry, information 5 processing, computer support, litigation support, translating, stenographic, 6 clerical, and paralegal employees or agents whose duties and responsibilities 7 require access to material designated CONFIDENTIAL INFORMATION; 8 Subject to the provisions described later in this paragraph, two (2) in-house 9 attorneys or other officer who is an attorney, and his stenographic and clerical 10 employees whose duties and responsibilities require access to material 11 designated CONFIDENTIAL INFORMATION; provided: such person has 12 completed a Confidentiality Agreement in the form of Exhibit A (attached 13 hereto); 14 B. Subject to the provisions described later in this paragraph, outside consultants 15 or experts regarding any issue in this Litigation who are not current employees 16 of any of the Parties to this Litigation or any divisions, subsidiaries, parents, or 17 affiliates of any of the Parties to this litigation, whose advice and consultation 18 are being or will be used in connection with this Litigation, including their 19 stenographic and clerical personnel, provided each such person has completed 20 a Confidentiality Agreement in the form of Exhibit A. 21 C. 22 23 reporters, and the jury; D. 24 25 26 Courts before which these actions are pending and their authorized staff, court Any interpreter or translation service, and any typist or transcriber used thereby; and E. A party's outside copying, exhibit preparation, and computerized litigation support and information management services. 27 28 -9Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 CONFIDENTIAL INFORMATION shall not be disclosed to any of the persons 2 described in subparagraph (B) for a period of ten (10) days after serving the Producing Party 3 with such Undertaking and a curriculum vitae or resume (including employment history and 4 list of publications) for any outside consultant or expert under subparagraph (B). Service of 5 the Undertaking shall be made by facsimile or electronic mail with a confirmation copy by 6 mail. The parties may agree in writing to shorten the waiting period for disclosure of 7 confidential information. Counsel for the Producing Party may within ten (10) business days 8 after service of the Undertaking serve an objection if a reasonable basis for such objection 9 exists. CONFIDENTIAL INFORMATION will not be disclosed to the person as to whom 10 objection was served, absent agreement by the Producing Party who served the objection. If 11 no such agreement is reached within ten (10) days after service of the objection, counsel for 12 the Producing Party who served the objection may move the Court for an order denying 13 disclosure of any CONFIDENTIAL INFORMATION to the person as to whom the objection 14 was served. If the Producing Party files such a motion, CONFIDENTIAL INFORMATION 15 shall not be disclosed to the person as to whom the objection was served until the Court orders 16 or agreement is reached that such disclosure may be made. Failure to file such a motion shall 17 operate as a waiver of such objection. 18 Any vendor described in paragraph 11(E) who is accessing CONFIDENTIAL 19 INFORMATION on behalf of a party shall return to the party's counsel all copies of such 20 documents as soon as the information has been encoded and loaded into the computer, copied, 21 prepared or otherwise processed by the vendor. Any vendor providing a party with ongoing 22 access to CONFIDENTIAL INFORMATION shall provide limited and secure access to the 23 information (such as information stored on a computer) and the vendor will take steps to 24 provide access (e.g., through access codes or passwords) only to people who are entitled to 25 access it under this Protective Order (including people retained or employed by the vendor 26 entitled to such access). 27 28 -10Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 12. 2 Access to HIGHLY CONFIDENTIAL INFORMATION. HIGHLY CONFIDENTIAL INFORMATION is fully subject to the requirements and 3 limitations set forth in paragraph 11 regarding the disclosure of CONFIDENTIAL 4 INFORMATION, but shall be disclosed by the Receiving Party only to the individuals falling 5 within subparagraphs (A), (B), (C), (D) and (E) of paragraph 11, excluding in-house counsel, 6 parties to the Litigation, or any employees of the parties to the Litigation. Prior to disclosure 7 of HIGHLY CONFIDENTIAL INFORMATION to any of the persons described in 8 subparagraph (B), counsel for the Receiving Party shall comply with the requirements of 9 paragraph 11 for providing such person access to CONFIDENTIAL INFORMATION. 10 13. 11 12 Access to Source Code With respect to any source code that is designated HIGHLY CONFIDENTIAL INFORMATION, the following restrictions shall apply: 13 A. The source code shall be produced in text file format (or another format agreed 14 to by the Receiving Party) on a CD, DVD, or other readily computer-accessible media (the 15 “Source Code Media”); 16 B. The Receiving Party may not make any copies of the Source Code Media; 17 C. The Receiving Party may use the Source Code Media to install the source code 18 on a single, password-protected, non-networked computer at the offices of the Receiving 19 Party’s litigation counsel of record; 20 D. The Receiving Party may use the Source Code Media to install the source code 21 on a single, password-protected, non-networked computer at the offices of one individual 22 falling within subparagraph (B) of paragraph 11; and 23 E. Except when it is being used for the purposes of installing the source code on 24 computers as allowed by subparagraphs C and D, above, the Receiving Party shall maintain 25 the Source Code Media in a secure location at the offices of its litigation counsel of record. 26 14. Disclosure to Other Individuals. 27 28 -11Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 2 3 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION may be disclosed also to persons not identified in paragraphs 11 and 12 as follows: A. CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 4 INFORMATION may be disclosed to persons not identified in paragraphs 11 5 and 12 as agreed by the Producing Party; 6 B. Any Receiving Party may move the Court for an Order that a person not 7 identified in paragraph 11 be given access to information designated 8 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 9 INFORMATION or that a person not identified in paragraph 12 be given 10 access to information designated HIGHLY CONFIDENTIAL 11 INFORMATION. If the motion is granted, such person may have access to the 12 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 13 INFORMATION after first signing an Undertaking substantially in the form of 14 Exhibit A attached hereto; 15 C. CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 16 INFORMATION may be disclosed to and/or used to examine, at deposition, at 17 trial, or at any other court hearing: (i) an individual who prepared, received, 18 reviewed, or had knowledge of the CONFIDENTIAL INFORMATION or 19 HIGHLY CONFIDENTIAL INFORMATION as demonstrated by the 20 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 21 INFORMATION itself or foundation testimony and (ii) a currently employed 22 employee, officer or director of a Producing Party but only the 23 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 24 INFORMATION of the Producing Party; and 25 D. A party may disclose or use in any manner or for any purpose any information 26 or documents from that party's own files that the party itself has designated 27 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 28 -12Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 2 INFORMATION. 15. 3 Request for Production in Another Action. If any Receiving Party (a) is subpoenaed or served with a demand in an action not 4 subject to this Protective Order, or (b) is served with any legal process by one not a party to 5 this Litigation, seeking any material designated CONFIDENTIAL INFORMATION or 6 HIGHLY CONFIDENTIAL INFORMATION by the Producing Party, such Receiving Party 7 shall object to its production to the extent permitted by law and shall give prompt written 8 notice to the Producing Party. Should the person seeking access to the material designated 9 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION by the 10 Producing Party take action against such Receiving Party or anyone else covered by this 11 Protective Order to enforce such a subpoena, demand, or other legal process, such Receiving 12 Party shall allow the Producing Party to respond in the manner such party sees fit, including 13 by setting forth the existence of this Protective Order. 14 16. 15 Filing Under Seal. If any party files CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 16 INFORMATION (including confidential portions of documents or transcripts) or any 17 document, pleading, or brief that discloses the substance or content of CONFIDENTIAL 18 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION in connection with any 19 motion, other written submission, hearing or trial in this action, the filing party shall make 20 such filing under seal in accordance with the local rules of this Court and any other 21 procedures required by the Court; provided, however, that the burden of proving that such 22 information should be sealed shall at all times remain on the party which designated the 23 information CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 24 INFORMATION. 25 17. 26 27 28 Challenging Designations. The acceptance by the Receiving Party of material designated CONFIDENTAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION shall not constitute an -13Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 admission or concession, or permit an inference that such material is, in fact, confidential. 2 Any Receiving Party may at any time request that the Producing Party cancel or modify a 3 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION 4 designation. Such request shall be made to counsel for the Producing Party in writing and 5 shall particularly identify the designated CONFIDENTAL INFORMATION or HIGHLY 6 CONFIDENTIAL INFORMATION that the Receiving Party contends is not 7 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION and the 8 reasons supporting that contention. If the Producing Party does not agree to remove or 9 modify the CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 10 INFORMATION designation within ten (10) business days of such request, the party 11 contending that such documents or material are not properly designated may request by 12 motion that the Court change the designation or remove such material from any or all of the 13 restrictions of this Protective Order. On such a motion, the party asserting confidentiality 14 shall have the burden of proving that the material designated CONFIDENTIAL 15 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION warrants the applicable 16 protections under this Protective Order. 17 18 18. 19 Limitations on Advice to Clients. Nothing in this Protective Order shall bar or otherwise restrict any attorney from 20 rendering advice to its client, and in the course thereof, relying upon such attorney's 21 examination of CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 22 INFORMATION; provided, however, that in rendering such advice and in otherwise 23 communicating with such client, the attorney shall not disclose any CONFIDENTIAL 24 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION to unauthorized persons. 25 19. 26 27 28 No Expansion of Federal Rules of Civil Procedure. Nothing in this Protective Order shall be construed (1) to affect or govern the scope of discovery in this Litigation; (2) to preclude any party from moving the Court for a further -14Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 order or modification pursuant to Fed. R. Civ. P. 26(c) or any other provision of the Federal 2 Rules of Civil Procedure; (3) to require a party to produce any CONFIDENTIAL 3 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION that is not relevant and 4 discoverable pursuant to Fed. R. Civ. P. 26 and the surrounding case law; (4) to preclude any 5 party from moving the Court for an order compelling production or disclosure of such 6 material; or (5) to require production or disclosure of any CONFIDENTIAL INFORMATION 7 or HIGHLY CONFIDENTIAL INFORMATION deemed by counsel for the Producing Party 8 to be protected from disclosure by the attorney-client privilege or the attorney work-product 9 immunity, or other privilege or immunity, so long as the withheld materials are identified in 10 the manner required by the Federal Rules of Civil Procedure. 11 20. 12 Survival of Obligations under Protective Order. This Protective Order shall survive the final termination of this Litigation, including 13 all appeals, and continue to bind all persons to whom CONFIDENTIAL INFORMATION or 14 HIGHLY CONFIDENTIAL INFORMATION is disclosed hereunder to the extent such 15 material is not, or does not become, known to the public. The Court retains jurisdiction 16 subsequent to any settlement or entry of judgment to enforce the terms of this Protective 17 Order. 18 21. Handling of CONFIDENTIAL INFORMATION AND HIGHLY 19 CONFIDENTIAL INFORMATION at the Conclusion of the Litigation. 20 Upon final termination of this Litigation, including all appeals, outside counsel for 21 Receiving Party may retain one copy or sample of all material designated CONFIDENTIAL 22 INFORMATION or HIGHLY CONFIDENTIAL INFORMATION, all papers filed with the 23 Court and exhibits thereto, all trial exhibits, and any other documents, things, copies, and 24 samples that include or reflect work product of the Receiving Party's counsel. All other 25 copies and samples of material designated CONFIDENTIAL INFORMATION or HIGHLY 26 CONFIDENTIAL INFORMATION (including without limitation all deposition transcripts, 27 production documents, and any other summaries, abstracts, excerpts, indices, and descriptions 28 -15Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 of such material and information derived from such material) shall be: (i) assembled and 2 returned (except for any that may be retained by the Court) to the Producing Party; or, 3 alternatively, (ii) counsel for the Receiving Party may certify in writing the destruction 4 thereof. 5 As to CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 6 INFORMATION stored in computer databases or backup tapes or disks, the Receiving Party 7 shall either delete all such information or secure it in a manner reasonably calculated to 8 prevent unauthorized access to it. As to CONFIDENTIAL INFORMATION or HIGHLY 9 CONFIDENTIAL INFORMATION stored in computer databases or backup tapes or disks, 10 located, stored, or accessible by any persons other than outside counsel for the Receiving 11 Party, the Receiving Party shall, upon demand by the Producing Party within ninety (90) days 12 of the Litigation termination, return all Source Code Media and destroy any media on which 13 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION was 14 electronically stored at any time, or otherwise take all steps necessary to irretrievably remove 15 such information from any and all such media. 16 17 18 22. Publicly Available Information. The restrictions and obligations set forth herein relating to material designated 19 CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION shall 20 not apply to any information that the Producing Party agrees, or the Court rules, (a) should not 21 be designated as such; (b) is or has become public knowledge other than as a result of 22 disclosure by the Receiving Party, its employees, or agents in violation of this Protective 23 24 25 Order; or (c) has come or shall come into the Receiving Party's legitimate knowledge or possession independently of the Producing Party under conditions such that its use and/or 26 public disclosure by the Receiving Party would not violate any obligation to the Producing 27 Party. The restrictions and obligations set forth herein shall not prohibit discussions of any 28 -16Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 material designated CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL 2 INFORMATION with any person who already has or obtains legitimate possession thereof. 3 23. Form of Document Production. 4 The parties agree to the following with regard to the production of documents: 5 6 A. To the extent reasonably practicable, all documents should be produced as 7 Group IV TIFF images at 300 dpi named the same as the Bates number. Color 8 images should be provided in jpg format. 9 B. 10 A standard image load file indicating document boundaries and location of images should accompany the image. The load file should be in a format that 11 can be used as is or easily modified to accommodate loading into any industry 12 standard litigation support software system. The data fields in the image load 13 file should be comma delimited. The Opticon file format is recommended. 14 15 C. Where reasonable, the parties will agree which documents will be provided 16 with OCR data. When provided, OCR should be provided at a document by 17 document text file level by a third-party vendor. There should be one OCR 18 19 text file per document (not single page text files for each page), named the same as the beginning Bates number (Document ID) of the document. The 20 21 OCR text file for a document should reside in the same location (file directory) 22 as the images for that document. In order to assure that the OCR produced is 23 comparable in this case, the OCR engine used will be one of the following 24 industry accepted engines: Expression 7.x - Law4.x or Law5.x; Ipro - Current 25 Version; Doculex - Current Version; Ribstone Systems - Current Version; 26 Readiris - Current Version; Abby Finereader - Current Version; Prime OCR - 27 28 -17Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 Current Version; Lead Tools - Current Version; Pegasus - Current Version. 2 D. 3 Accounting and financial data kept electronically in an accounting database (i.e., SAP) will also be produced in a uniquely delimited text file that can be 4 electronically manipulated and can be loaded into various programs, including 5 Microsoft Excel. Also, the parties will agree to produce the queries that were 6 run to collect the accounting and financial data that is produced. 7 E. 8 9 Copies of electronic documents in their native format may be made available on a case-by-case basis. The parties will confer in good faith regarding the 10 production of electronic documents in their native format and will seek court 11 intervention only when it becomes clear that the parties are at an impasse. 12 13 14 24. Notices. Notices under this Protective Order shall be provided to the parties' respective counsel 15 by electronic mail by the close of the business day unless this provision is modified by the 16 parties in writing. The date by which a party receiving a notice shall respond, or otherwise 17 take action, shall be computed from the close of the business day that the electronic mail was 18 received in the office of counsel. 19 20 21 22 23 24 25 26 27 28 Notice to Bally shall be to: Michael D. Rounds WATSON ROUNDS 5371 Kietzke Lane Reno, NV 89511 Telephone: (775) 324-4100 Facsimile: (775) 333-8171 mrounds@watsonrounds.com Notice to BIS2 shall be to: Michael N. Feder LEWIS & ROCA LLP 3993 Howard Hughes Parkway, Suite 600 Las Vegas, Nevada 89169 -18Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 Telephone: (702) 474-2612 Facsimile: (702) 216-6168 MFeder@LRLaw.com 2 3 4 5 6 25. Entry Of Protective Order. Until such time as this Protective Order has been entered by the Court, the parties agree that upon execution by all of the parties, it will be treated as though it has been "So Ordered." 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -19Stipulated Protective Order 2:10-cv-440-PMP-RJJ AGREED: 1 2 Dated: August 13, 2010 3 For Plaintiff: By: /s/ Michael D. Rounds__________ Michael D. Rounds (NBN 4734) WATSON ROUNDS 5371 Kietzke Lane Reno, NV 89511 Telephone: (775) 324-4100 Facsimile: (775) 333-8171 mrounds@watsonrounds.com 4 5 6 7 8 9 For Defendant: 10 11 12 13 By: /s/ Robert W. Busby_________ Michael N. Feder (NBN 7332) LEWIS & ROCA LLP 3993 Howard Hughes Parkway Suite 600 Las Vegas, Nevada 89169 Telephone: (702) 474-2612 Facsimile: (702) 216-6168 MFeder@LRLaw.com Robert W. Busby (Pro Hac Vice) MORGAN LEWIS LLP 1111 Pennsylvania Avenue, N.W. Washington, DC 20004 Telephone: (202) 739-3000 Facsimile: (202) 739-3001 rbusby@morganlewis.com 14 15 16 17 Andrew J. Gray IV (Pro Hac Vice) MORGAN LEWIS LLP 2 Palo Alto Square, Suite 700 Palo Alto, CA 94306 Telephone: (650) 843-4000 Facsimile: (650) 843-4001 agray@morganlewis.com 18 19 20 21 22 23 SO ORDERED: 24 13th day of __________________, August This _______ 2010 25 26 ________________________________ UNITED STATES MAGISTRATE JUDGE 27 28 -20Stipulated Protective Order 2:10-cv-440-PMP-RJJ 1 Exhibit A CONFIDENTIALITY UNDERTAKING 2 3 I, _______________________________________________, being duly sworn, state that: 4 (a) My present residential address is: ____________________________________________________. (b) My present employer is ____________________________________________________ and the address of my present employer is ____________________________________________________. (c) My present occupation or job description is ____________________________________________________. (d) I have received and carefully read the Stipulated Protective Order in the above-captioned case. I certify that I understand the terms of that Protective Order, recognize that I am bound by the terms of that Order, and agree to comply with those terms. Further, I understand that unauthorized disclosure of any Designated CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION, or its substance, may constitute contempt of this Court and may subject me to sanctions or other remedies that may be imposed by the Court and potentially liable in a civil action for damages by the disclosing party. (e) I agree to submit to the jurisdiction of the United States District Court for the District of Nevada for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this Litigation. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I declare under the penalty of perjury that the foregoing is true and correct. Dated: ____________________ _______________________________
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