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UMG Recordings, Inc. v. DivX

February 2, 2009


The opinion of the court was delivered by: Judge: Hon. Andrew J. Wistrich


Plaintiffs UMG Recordings, Inc., Universal Music Corp., Songs of Universal, Inc., Universal-Polygram International Publishing, Inc., Rondor Music International, Inc., Universal Music - MGB NA LLC, Universal Music - Z Tunes LLC, and Universal Music - MBG Music Publishing Ltd. (collectively, "UMG"), and Defendant DivX, Inc. ("DivX") (collectively with UMG, the "Parties," and each individually, a "Party") recognize that the Parties and third parties may be required, pursuant to discovery, to disclose confidential, proprietary, trade secret or private information in UMG Recordings v. DivX, Inc., CV07-06835 AHM (AJWx) ("the Action"). To protect against the improper use or disclosure of such information, the Parties agree that good cause exists for the entry of this Protective Order pursuant to Rule 26(c), in the above-captioned actions as evidenced by the signatures of their respective counsel, and accordingly stipulate as follows:


1. This Protective Order shall govern all Discovery Materials produced or disclosed in the Litigation by any Party, or by any non-party, or their respective counsel, retained experts, directors, officers, employees, or agents (referred to herein collectively as "Representatives") (the "Producing Party") to any other Party or its Representatives (the "Receiving Party"). The term "Discovery Materials" shall mean and include Documents (as defined below); answers to interrogatories; responses to requests for admissions; depositions; expert reports; briefs, memoranda, or writings filed with or otherwise supplied to the Court; and such other materials and information as may be produced or disclosed during the course of discovery in the Litigation. The term "Documents" shall mean every means of recording any form of communication or representation upon any tangible thing, including letters, words, pictures, sounds, or symbols, or combinations thereof, whether recorded by handwriting, printing, photostatic, or photographic means, magnetic impulse, tape, computer disk, CD-ROM or any other form of data storage, data compilation, or mechanical or electronic recording, and all other tangible things, including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained, which come within the meaning of "writing" contained in Rule 1001 of the Federal Rules of Evidence, or within the meaning of "document" or "tangible thing" contained in Rule 34 of the Federal Rules of Civil Procedure.

2. The term "CONFIDENTIAL INFORMATION" shall mean and include non-public confidential information of or in the possession of the Producing Party as to which the Producing Party considers in good faith to contain Trade Secrets (as that term is defined in California Civil Code § 3426.1)*fn1 or confidential business, financial, or technical information that may be protected from public disclosure under the Federal Rules of Civil Procedure or California law, including without limitation non-public financial information regarding the party's goods, services and businesses and potential businesses, including cost information, and profit and loss information; non-public financial projections and forecasts; internal P&L statements and other non-public financial and economic information including financial analyses, budgets, sales projections and forecasts; non-public information regarding business development, marketing and sales plans; non-public surveys; non-public technical information including non-public engineering, manufacturing and commercial information and know-how; non-public competitive analyses; customer and member information; confidential agreements with third parties; confidential communications with third parties; information received from third parties under conditions of confidentiality, for example, pursuant to non-disclosure agreements or confidentiality provisions; source code, proprietary databases and other proprietary electronically stored information.

3. The term "ATTORNEYS' EYES ONLY INFORMATION" shall mean the subset of CONFIDENTIAL INFORMATION that contains information of an extremely sensitive nature as to which the Producing Party has a good faith belief that disclosure to a Receiving Party, even pursuant to the restrictions of this Protective Order governing CONFIDENTIAL INFORMATION, could pose a significant risk of competitive harm. The Parties agree that ATTORNEYS' EYES ONLY information should be produced on more restrictive terms than other CONFIDENTIAL INFORMATION to reduce the risk of competitive harm.

4. Any Discovery Materials filed with the Court or produced or provided by any Party or non-party in the course of discovery or other proceedings in this action may be designated by such Party or non-party as CONFIDENTIAL INFORMATION or ATTORNEYS' EYES ONLY INFORMATION so long as a good faith and reasonable basis exists for such a designation.

5. The term "Counsel" shall mean outside counsel of record in the Litigation and up to four in-house counsel for each of UMG and DivX as identified below in sub-paragraphs 5(a) and 5(b) ("House Counsel"), and the supporting personnel employed by the outside counsel of record, such as paralegals, translators, secretaries, clerks, shorthand reporters and document copiers.

(a) UMG hereby designates the following four individuals as their sole "House Counsel":

(1) Harvey Gellar;

(2) Scott Bauman;

(3) Michael Ostroff; and

(4) Zach Horowitz.

(b) DivX hereby designates the following three individuals as its sole "House Counsel":

(1) Lee Milstein;

(2) Johnny Chen; and

(3) David Richter.

(c) Unless otherwise ordered by the Court or agreed in writing by the parties, a Party that seeks to designate House Counsel in substitution of House Counsel identified in sub-paragraphs 5(a) and 5(b) in the Lawsuit ("Designating Party"), must first serve a written request on the other Party (1) that sets forth the full name, current employer(s) and job title(s) of the proposed House Counsel, and (2) if four House Counsel have already been designated by the Designating Party, that identifies which of the previously-designated House Counsel will be relieved of authority to review confidential Discovery Materials.

(d) A Designating Party that serves a request in accordance with the preceding subparagraph may disclose confidential Discovery Materials to the proposed new House Counsel unless, within seven court days of serving the request, the other party serves the Designating Party with a written objection to the proposed new House Counsel. Any such objection must set forth with particularity the ground(s) on which it is based. The Parties must then promptly meet and confer to try to resolve their disagreement. If no agreement is reached, the Parties shall contact the Court to determine whether it is the Court's preference to resolve the dispute by

(1) teleconference, (2) letter briefs, or (3) joint stipulation in accordance with the Local Rule governing discovery disputes.

(e) In any such proceeding the Designating Party shall bear the burden of proving that its need to designate House Counsel and disclose confidential Discovery Materials outweighs the risk of harm that the disclosure would entail.

6. An "Independent Expert or Consultant" is any person or organization with whom counsel or a party may deem it necessary to consult concerning technical, financial or other aspects of this case for the preparation or trial thereof. For the purposes of this Order, an Independent Expert or Consultant shall be restricted to a person who is retained or employed as a bona fide consultant or expert for purposes of this litigation, whether full or part time, by or at the direction of counsel for a party, and is not a past or a current employee of a Party or a Party's affiliates, and who, at the time of retention, is not anticipated to become an employee of a Party or a Party's affiliates. No Independent Expert or Consultant may be shown any CONFIDENTIAL INFORMATION, including ATTORNEYS' EYES ONLY INFORMATION, until such person or organization reads this Protective Order and agrees to be bound by its terms by signing the Non-Disclosure Agreement attached hereto as Exhibit A. The Party who has retained such an Independent Expert or Consultant shall keep the original Non-Disclosure Agreement signed by the Independent Expert or Consultant and, if requested, make it available for inspection or copying by the Producing Party at the conclusion of the litigation and all appeals, unless the Independent Expert or Consultant has already been designated as a testifying expert, in which case it may be requested by the Producing Party after such designation.

7. Except as provided for below in Paragraphs 8 and 9, any Discovery Materials containing or including any CONFIDENTIAL INFORMATION shall be designated as such by the Producing Party by stamping or labeling it with, or otherwise affixing ...

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