Firepower Marketing Inc v. Red Robin International Inc, No. 3:2011cv05338 - Document 39 (W.D. Wash. 2012)

Court Description: ORDER granting 35 Motion for Protective Order by Judge Benjamin H Settle.(TG)

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Firepower Marketing Inc v. Red Robin International Inc Doc. 39 Honorable Benjamin H. Settle 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 8 9 FIREPOWER MARKETING, INC. d/b/a ROYALTY REWARDS, a Washington Corporation, STIPULATED PROTECTIVE ORDER 10 11 12 Civil No. 3:11-cv-05338-BHS Plaintiff, v. RED ROBIN INTERNATIONAL, INC., a Nevada Corporation, NOTED ON MOTION CALENDAR: January 24, 2012 Defendant. 13 14 15 16 This Protected Order is issued to facilitate document disclosure and production under 17 the Local Rules of this Court, including Local Rule CR 5(g), and Federal Rule of Civil 18 Procedure 26(c)(1)(G). Unless modified pursuant to the terms contained in this Order, this 19 Order shall remain in effect through the conclusion of this litigation. 20 In support of this order, the Court finds that: 21 1. 22 Documents or information containing confidential proprietary and business information and/or trade secrets (“Confidential Information”) that bear STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -1- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 Dockets.Justia.com 1 significantly on the Parties’ claims or defenses are likely to be disclosed or 2 produced during the course of discovery in this litigation; 3 2. The Parties to this litigation may assert that public dissemination and disclosure of 4 Confidential Information could severely injure or damage the Party disclosing or 5 producing the Confidential Information (“Producing Party”) and could place that 6 Party at a competitive disadvantage; 7 3. Counsel for the Party or Parties receiving Confidential Information (“Receiving 8 Party”) are presently without sufficient information to accept the representation(s) 9 made by the Producing Party or Parties as to the confidential, proprietary, and/or 10 11 trade secret nature of such Confidential information; and 4. To protect the respective interests of the Parties and to facilitate the progress of 12 disclosure and discovery in this case, the following Order should issue: 13 IT IS THEREFORE ORDERED THAT: 14 1. Confidential Discovery Material. Any Party or Producing Party may 15 designate any discovery material as “Confidential” or “Confidential Attorneys’ Eyes Only” 16 under the terms of the Order if such Party or Producing Party in good faith reasonably 17 believes that such discovery material contains non-public, confidential, proprietary or 18 commercially sensitive information that requires the protections provided in this Order 19 (“Confidential Discovery Material.”) 20 considered to be Confidential Discovery Material includes all non-public materials containing 21 information related, but not limited, to: (i) financial or business plans or projections; (ii) 22 proposed strategic transactions and other business combinations, negotiations, inquiries or STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS For purposes of this Order, discovery material -2- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 agreements including, but not limited to, joint ventures, mergers, purchases, buy-outs, 2 consolidations, transfers of interest and partnerships; (iii) trade secrets and proprietary 3 technical information; (iv) studies or analyses by internal or outside experts or consultants; (v) 4 financial or accounting results or data; (vi) customer lists, bids, solicitations and information; 5 (vii) competitive analyses; (viii) personnel files or data; (ix) product development and 6 planning; (x) personal financial, tax, or employment information; (xi) business, management 7 and marketing plans and strategies; (xii) costs of goods and services; (xiii) pricing of goods 8 and services; (xiv) acquisition offers and expressions of interests; (xv) contracts or 9 agreements with customers, employees, affiliates or partners; (xvi) complaints, disputes, 10 litigation, mediation or arbitration with customers, employees, affiliates or partners; (xvii) 11 stockholder lists, registers and data; and (xviii) other personally sensitive or proprietary 12 information whether embodied in physical objects, documents, or within the personal 13 knowledge of persons, and which has been so designated by a party or non-party in 14 responding to or making required and voluntary disclosures, discovery requests, or a 15 subpoenas duces tecum. 16 Confidential information shall not include (a) advertising materials disseminated to the 17 public; (b) materials that on their face show that they have been published to the general 18 public; or (c) documents that have been submitted to any governmental entity without a 19 request for confidential treatment. 20 2. Use of Confidential Information. Any Confidential Information obtained by 21 any party from any person in this litigation may be used only for purposes of preparation and 22 litigation of this lawsuit, including any appeal, and may not be disclosed publicly or to third STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -3- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 parties, except as expressly provided in this Protective Order or by further order of the Court. 2 In no event may a receiving party use Confidential Information produced or disclosed to it in 3 any way for any research, development, manufacture, financial, commercial, marketing, or 4 any other personal or competitive purpose. Likewise, no receiving party, including its 5 attorneys, may use Confidential Information produced to it for the preparation, prosecution, 6 reexamination, or reissuance of any intellectual property rights of the receiving party. 7 3. Scope. This Protective Order shall apply to all pleadings, discovery papers, 8 briefs, transcripts (deposition, trial, and otherwise) summaries, notes, abstracts, and other 9 instruments that comprise, embody, summarize, discuss, or quote from any documents 10 produced in the litigation or any other material designated as “CONFIDENTIAL” or 11 “CONFIDENTIAL ATTORNEY EYES ONLY”; except, however, this Protective Order has 12 no effect upon, and shall not apply to, a party’s use of its own Confidential Information for 13 any purpose. 14 4. Designation of Confidential Information. Consistent with Paragraphs 1-3, 15 above, a producing party may designate any document or tangible thing as Confidential 16 Information by labeling or marking it “CONFIDENTIAL” or “CONFIDENTIAL 17 ATTORNEY EYES ONLY.” Subject to Paragraphs 1-3, above, a producing party may 18 designate information not reduced to documentary, tangible, or physical form, as Confidential 19 Information by informing all parties in writing that such information is designated 20 “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY.” 21 22 (a) “CONFIDENTIAL.” A producing party may designate Confidential Information as “CONFIDENTIAL,” if such party in good faith believes that such information STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -4- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 contains non-public, confidential, proprietary, or commercially sensitive information that 2 requires protections from public disclosure. 3 (b) “CONFIDENTIAL ATTORNEY EYES ONLY.” A producing party may 4 designate nonpublic, proprietary information as “CONFIDENTIAL ATTORNEY EYES 5 ONLY,” if such party in good faith believes that such information constitutes a trade secret or 6 that the disclosure of such information would cause serious injury to the producing party’s 7 business or competitive interests. 8 include: product formulations; identifications of customers; pricing information; margins for 9 products; costs of materials; process, distribution, and marketing information; and information 10 relating to future products not yet commercially released, the disclosure of which is 11 demonstrably likely to cause harm to the competitive position of the producing party. 12 5. Examples of information that may be so designated Challenges to Confidential Designations. After a good-faith effort to resolve 13 the issue informally, any party may seek to have the Court order that the producing party re- 14 designate 15 “CONFIDENTIAL ATTORNEY EYES ONLY” designations are not justified. A receiving 16 party shall not be obligated to challenge the propriety of the producing party’s designations at 17 the time made. In the event that a party seeks to have the Court order re-designate the 18 producing party specified documents as provided herein, the producing party shall have 19 burden of proof that the designated specified documents are entitled to protection as 20 “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEYS EYES ONLY” information. 21 22 6. specified documents to the extent that Timing of Confidential Designations. its “CONFIDENTIAL” or The labeling or marking of a document with the designation “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -5- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 EYES ONLY” shall be made when a copy of the document or thing is provided to the 2 receiving party or as soon thereafter as reasonably practical. Where documents which are to 3 be designated as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” are 4 too voluminous to be marked, that designation shall be made by reference to the type of 5 document or box or file in which it is maintained, provided that if a party asks that the 6 documents be copied, such language will be placed on the copies before delivery to the 7 requesting party. Any such designation that is inadvertently omitted may be corrected by 8 written notification to counsel for the receiving party, and the receiving party shall thereafter 9 mark and treat the materials as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY 10 EYES ONLY,” as appropriate, and such material shall be subject to this Protective Order as if 11 it had been initially so designated. 12 7. Disclosures to Witnesses. Except as may be otherwise ordered by the Court, a 13 receiving party may show to a witness at depositions and trial, and that witness may testify 14 concerning, 15 ATTORNEY EYES ONLY” of which the witness has prior knowledge, provided that the 16 witness is otherwise permitted to view the material. Any person other than the witness, his or 17 her attorney(s), or any person qualified to receive information designated “CONFIDENTIAL” 18 or “CONFIDENTIAL ATTORNEY EYES ONLY” under this Order shall be excluded from 19 the portion of the examination concerning such information, unless the producing party 20 consents to persons other than qualified recipients being present at the examination. 21 22 8. all information designated “CONFIDENTIAL” or “CONFIDENTIAL Transcripts. All transcripts of depositions and all audio and video recordings of depositions shall be deemed “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -6- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 EYES ONLY” until the expiration of twenty (20) days after the deposition has been 2 transcribed. If a party reasonably believes that questions asked during the deposition may call 3 on the witness to disclose information that rightly should be designated “CONFIDENTIAL 4 ATTORNEY EYES ONLY” then that party shall note that on the record and the witness shall 5 not respond until the representatives of the parties have left the room. Party representatives 6 may return to the deposition room whenever questions involve information which should not 7 be designated “CONFIDENTIAL ATTORNEY EYES ONLY.” 8 Pages or entire transcripts of testimony given at a deposition may be designated as 9 containing “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” 10 information by an appropriate statement either at the time of the giving of such testimony or 11 within twenty (20) days after the transcription of the deposition. In such case, the reporter 12 shall mark the original and all copies of a transcript with the designation. No copy of any 13 transcript of any deposition that is designated, in part or in whole, as “CONFIDENTIAL” or 14 “CONFIDENTIAL ATTORNEY EYES ONLY” shall be furnished by the court reporter to 15 any person other than to counsel of record. The original of any transcript of any deposition 16 designated as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY,” if 17 required to be filed, shall be filed with the Court under seal, unless otherwise stipulated in 18 writing by the parties. 19 9. Disclosure of Designated Confidential Information. 20 (a) No person directly employed by a receiving party, including in-house counsel, 21 shall have, or be given access to Confidential Information that a producing party has 22 STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -7- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 designated as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” other 2 than as set forth below. 3 4 (b) Information designated as “CONFIDENTIAL ATTORNEY EYES ONLY” shall be disclosed only to: 5 (i) The United States District Court for the Western District of 6 Washington at Tacoma and any appellate tribunal hearing an appeal from an order of that 7 court; 8 (ii) Counsel of record (including local and trial counsel), partners, 9 associates and employees of counsel of record, including any member of the support staff 10 assisting such counsel, and independent shorthand reporters retained to record and transcribe 11 testimony in connection with this action; 12 (iii) Claims examiners, including any member of support staff assisting 13 such claims examiner for any insurance company that has accepted the tender of any claim 14 accepted in this case and who have direct responsibility for the claim. 15 (iv) Any independent experts or consultants engaged by counsel or the 16 parties to assist in this litigation, including their secretarial and clerical personnel, provided 17 that disclosure to such independent experts or consultants and their secretarial and clerical 18 personnel shall be made only on the conditions set forth in Paragraph 10 and of applicable 19 Paragraph 11, below; and 20 21 (v) Members of an independent data entry or data processing staff assisting in the development or use of data retrieval systems in connection with this action and retained 22 STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -8- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 by the parties or their attorneys, provided that disclosure to such data entry or data processing 2 staff shall be made only on the conditions set forth in Paragraphs 10 and 11 below. 3 (c) In addition to those persons noted in Paragraph 9(a), above, information 4 designated as “CONFIDENTIAL” may be disclosed to officers, in-house counsel, and 5 employees of parties as necessary to prepare or defend this action. 6 10. Disclosures to Advisors, Experts, and Consultants. Trial counsel desiring to 7 disclose Confidential Information to advisors, experts or consultants specified in 8 Paragraph 9(b)(iv), above, shall first obtain a signed CONFIDENTIALITY AGREEMENT in 9 the form of EXHIBIT A attached hereto from each such advisor, expert or consultant, and 10 such counsel shall maintain a file containing the original of each such signed undertaking, as 11 well as a list of the names and addresses of those persons signing the undertaking. 12 Confidential Information shall be disclosed to such persons only to the extent counsel deems 13 such disclosure to be necessary for the trial or preparation for trial of this action. 14 11. Required Notice. Confidential Information may be provided to an 15 independent consultant or expert who is known to be an employee or agent of or consultant to 16 any competitor of the party whose Confidential Information is to be disclosed only after five 17 (5) business days following written notice to the disclosing party of the proposed disclosure to 18 the consultant or expert. The notice shall include a current curriculum vitae of the consultant 19 or expert to whom disclosure is sought. With the written notice shall be included a fully 20 executed copy of the CONFIDENTIALITY AGREEMENT in the form of EXHIBIT A, 21 completed by the consultant or expert and shall include the name, address and current 22 employment of the consultant or expert. If the disclosing party makes a written objection to STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS -9- MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 the consultant or expert within the five (5) day period, no disclosure of the Confidential 2 Information may be made to the consultant or expert, until the issue is resolved. If the parties 3 cannot resolve the issue within three (3) business days after the written objection is served, 4 the party objecting to the proposed disclosure shall have three (3) business days to seek relief 5 from the Court. No “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” 6 information that is the subject of an objection shall be shown to the consultant or expert until 7 the time for seeking relief from the Court has expired without relief being sought, or by 8 resolution of the objection by agreement or by the Court. Even if an independent consultant 9 or expert is not known to be an employee or agent of or consultant to any competitor of the 10 party whose Confidential Information is to be disclosed, the Confidential Information may 11 only be provided to the independent consultant or expert upon signing and fully executing a 12 copy of the CONFIDENTIALITY AGREEMENT in the form of EXHIBIT A, which shall 13 include the name, address and current employment of the independent consultant or expert. 14 The fully executed CONFIDENTIALITY AGREEMENT for such independent consultant or 15 expert must be kept on file with counsel, but need not be served on the opposing party unless 16 and until such independent consultant or expert is identified as a witness. 17 12. Disclosures to Other Persons. In the event that a party desires to provide 18 access to or disseminate Confidential Information to any person not entitled to access under 19 this Protective Order, it may move the Court for an order that such person be given access 20 thereto if the parties cannot, after negotiating in good faith, agree to such additional access or 21 dissemination. 22 STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS - 10 - MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 13. Filing under Seal. Pursuant to the Local Rules for the Western District of 2 Washington, parties will comply with Civil Rule 5(g) when seeking to file documents under 3 seal. 4 14. Effect of Acceptance. The acceptance by the receiving party or parties of 5 documents designated as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES 6 ONLY” shall not constitute an agreement, admission or concession, or permit an inference, 7 that the materials are in fact confidential or trade secrets. 8 “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” shall be treated in 9 accordance with the provision of this Protective Order, except that any party may at any time 10 seek an Order from the Court determining that specified information or categories of 11 information are not entitled to protection under this Protective Order. 12 15. Privileged Information. Documents designated Nothing in this Protective Order shall require 13 disclosure of material that a party contends is protected from disclosure by the attorney-client 14 privilege, the attorney work-product doctrine, or any other applicable privilege. Likewise, 15 nothing in this Protective Order shall preclude any party from moving the Court for an Order 16 directing the disclosure of such material. 17 16. Inadvertent Production. Inadvertent production or disclosure of documents 18 or information subject to the attorney-client privilege, work product immunity or any other 19 applicable privilege shall not constitute a waiver of, nor a prejudice to, any claim that such or 20 related material is privileged or protected by the work product immunity or any other 21 applicable privilege, provided that the producing party notifies the receiving party in writing 22 promptly after discovery of such inadvertent production. STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS - 11 - Such inadvertently produced MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 documents or information, including all copies thereof, shall be returned to the producing 2 party immediately upon request. No use shall be made of such documents or information 3 during deposition or at trial, nor shall such documents or information be shown to anyone 4 who has not already been given access to them subsequent to the request that they be returned, 5 provided, however, that the receiving party may challenge the propriety of such designation as 6 privileged. 7 17. Unintentional Failure to Designate. Any item or information inadvertently 8 furnished or otherwise disclosed by the producing Party or third person during the course of 9 this litigation without a designation of “CONFIDENTIAL” or “CONFIDENTIAL 10 ATTORNEY 11 “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” under this Protective 12 Order, but only when counsel for the receiving party receives written notice from the 13 producing party or third person of the failure to designate and of the request to thereafter treat 14 such information as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY.” 15 The non-designating party and others shall not be responsible for failure to treat undesignated 16 materials as “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” where 17 such failure occurs before receipt of written notice from the designating party or where the 18 non-designating party has not had a reasonable opportunity to advise others to whom such 19 information had already been disclosed that such information should be so treated. Once the 20 receiving party has written notice of the intend to designate the information as 21 “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY,” the receiving party, 22 and all others having received such information and having been notified of the requested EYES ONLY” STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS may nevertheless - 12 - subsequently be designated as MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 designation, shall promptly stamp all such information with the appropriate legend and shall 2 thereafter treat such information as designated. 3 18. Petitions for Relief. This Protective Order shall not prevent any party or 4 parties from applying to the Court for relief from the Protective Order, or from applying to the 5 Court for further or additional relief by way of protective orders or otherwise, or from 6 agreeing in writing among themselves to protective arrangements not contained in this 7 Protective Order. 8 19. Post-Judgment and Post-Settlement Obligations. Within sixty (60) days 9 after the final conclusion of this action, including any appeals, all Confidential Information 10 produced by any party, and all copies of such information, shall be returned to the producing 11 party, or counsel of record shall certify in writing that such material has been destroyed. 12 Counsel of record may retain a copy of all correspondence, pleadings, motion papers, 13 discovery responses, deposition and trial transcripts, legal memoranda, and work product. 14 15 16 20. Survival. This Protective Order shall survive the final termination of this action with respect to any retained Confidential Information. 21. Use of Designated Confidential Information During Testimony. If counsel 17 for Firepower, Red Robin, or any third-party witness believes that any question that will be 18 put to a witness at a deposition upon oral examination will disclose Confidential Information, 19 or that answers to any question will require such disclosure, or if Confidential Information 20 will be used as exhibits during examination, such counsel shall so notify opposing counsel, 21 and the deposition of the witness, or confidential portions thereof, shall be taken only in the 22 STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS - 13 - MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 presence of persons entitled to access to Confidential Information under paragraph 11 hereof, 2 and the court reporter. 3 22. Copying. Information designated as “CONFIDENTIAL” or 4 “CONFIDENTIAL ATTORNEY EYES ONLY” may be copied and reproduced (in any 5 format) only by a qualified receiving party and solely for the purpose of transmission to other 6 qualified parties or the making of working copies, abstracts, digests, and analyses of 7 information designated “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES 8 ONLY” for use in connection with this litigation. Such working copies, abstracts, digests, 9 and 10 11 analyses shall be deemed information designated “CONFIDENTIAL” or “CONFIDENTIAL ATTORNEY EYES ONLY” under the terms of this Protective Order. 23. Amendments. This Protective Order shall not be amended by the parties 12 except on prior notice to counsel and upon approval by the Court. The Court may amend the 13 terms of this Protective Order on its own motion after notice to the parties and an opportunity 14 to be heard. 15 24. Should any information designated “CONFIDENTIAL” or “CONFIDENTIAL 16 ATTORNEY EYES ONLY” be disclosed, through inadvertence or otherwise, to any person 17 or party not duly authorized under this Protective Order, then the receiving party shall use its 18 best efforts to obtain the return of such information and to bind such persons to the terms of 19 this Protective Order within three (3) business days of the discovery of such disclosure, 20 inform such persons of all provisions of this Protective Order; within five (5) business days of 21 the discovery of such disclosure, identify such persons to the producing party; and request 22 such persons execute the CONFIDENTIALITY AGREEMENT attached hereto as EXHIBIT STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS - 14 - MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 A. 2 Counsel of record for the producing party within five (5) business days of its execution by the 3 party to whom CONFIDENTIAL or CONFIDENTIAL ATTORNEY EYES ONLY 4 information was disclosed. 5 The executed CONFIDENTIALITY AGREEMENT shall be served upon Outside 25. This Protective Order and any other orders permitting materials to be filed and 6 maintained under seal shall survive the termination of this litigation. Moreover, the Court’s 7 jurisdiction over this Protective Order and any other orders permitting materials to be filed 8 and maintained under seal shall survive the termination of this litigation. 9 DATED this 5th day of March, 2012. A 10 11 BENJAMIN H. SETTLE United States District Judge 12 13 14 Presented by: MERCHANT & GOULD P.C. 15 16 17 18 19 s/ Allison S. Wallin Allison S. Wallin, WSBA #24285 Paul H. Beattie, WSBA # 30277 701 Fifth Avenue, Suite 4100 Seattle, WA 98104 Tel: (206) 342-6200 Fax: (206) 342-6201 E-mail: pbeattie@merchantgould.com E-mail: awallin@merchantgould.com 20 21 22 Kathleen E. Ott, Esq., pro hac vice Kirstin Stoll-DeBell, pro hac vice 1050 Seventeenth Street, Suite 1900 STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS - 15 - MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Denver, CO 80265 Tel: (303) 357-1670 Fax: (303) 357-1671 E-mail: kstoll@merchantgould.com Scott W. Johnston, pro hac vice 80 S. 8th Street, Suite 3200 Minneapolis, MN 55402 Tel: (612) 332-5300 Fax: (612) 332-9081 E-mail: sjohnston@merchantgould.com Attorneys for Defendant, Red Robin International, Inc. WINTHROP & WEINSTINE __________________________________ Peter J. Gleekel Bradley J. Walz 225 South 6th Street Minneapolis, MN 55402 Tel: (612) 604-6836 E-mail: pgleekel@winthrop.com E-mail: bwalz@winthrop.com KARR TUTTLE CAMPBELL Robert A. Radcliffe 1201 Third Avenue, Suite 2900 Seattle, WA 98101-3028 Tel: (206) 682-7100 E-Mail: rradcliffe@karrtuttle.com 17 18 Attorneys for Plaintiff, Firepower Marketing, Inc. 19 20 21 22 STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS - 16 - MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200 1 2 EXHIBIT A 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 FIREPOWER MARKETING, INC. D/B/A ROYALTY REWARDS, 6 Plaintiff, vs. 7 RED ROBIN INTERNATIONAL, INC. 8 Defendant. 9 10 11 12 13 14 15 16 17 18 ) ) ) ) ) ) ) ) ) ) ) STIPULATION FOR PROTECTIVE ORDER WRITTEN ASSURANCE OF COMPLIANCE WITH PROTECTIVE ORDER I hereby certify that I have read the attached Protective Order Firepower Marketing, Inc. d/b/a Royalty Rewards v. Red Robin International, Inc., Court File No. 11-5338-BHS. I agree that I will not reveal “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information to, or discuss such with, any person who is not entitled to receive “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in accordance with the Order. I further agree that I will use “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information only for purposes of facilitating the prosecution or defense of the action and not for any business or other purpose. I will otherwise keep all “CONFIDENTIAL” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in accordance with the Protective Order. I agree that the United States District Court for the Western District of Washington at Tacoma (“the Court”) has jurisdiction to enforce the terms of the Order, and I consent to jurisdiction of the Court over my person for that purpose. I will otherwise be bound by the strictures of the Protective Order. 19 20 No.: 11-5338-BHS (Signature) Dated: (Print Name) 21 (Company) 22 STIPULATED PROTECTIVE ORDER Civil No. 3:11-cv-05338-BHS - 17 - MERCHANT & GOULD P.C. 701 FIFTH AVENUE , S UITE 4100 S EATTLE, WASHINGTON 98104 TELEPHONE: (206) 342-6200

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