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Magnadyne Corp. v. Best Buy Co.

October 6, 2009

MAGNADYNE CORPORATION, A CALIFORNIA CORPORATION, PLAINTIFF / COUNTER-DEFENDANT
v.
BEST BUY CO., INC., A MINNESOTA CORPORATION, DEFENDANT / COUNTER-PLAINTIFF.
EVER WIN INTERNATIONAL CORPORATION, A CALIFORNIA CORPORATION, PLAINTIFF / COUNTER-DEFENDANT,
v.
MAGNADYNE CORORATION, A CALIFORNIA CORPORATION, AND DOES 1 THROUGH 10, INCLUSIVE DEFENDANTS / COUNTERCLAIMANTS.



NOTE: CHANGES HAVE BEEN MADE TO THIS DOCUMENT

PROTECTIVE ORDER

To expedite the flow of discovery material, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that only materials the parties are entitled to keep confidential are subject to such treatment, and to ensure that the parties are permitted reasonably necessary uses of such materials in preparation for and in the conduct of trial, pursuant to Fed. R. Civ. P. 26(c), and pursuant to the stipulation of the parties, it is hereby ORDERED THAT:

Information Subject To This Order

1. For purposes of this Order, "CONFIDENTIAL INFORMATION" shall mean all information or material that is produced or disclosed by a producing party to a receiving party; which the producing party, including any party to this action and any non-party producing information or material voluntarily or pursuant to a subpoena or a court order, reasonably considers to constitute or to contain trade secrets as defined in California Civil Code § 3426.1 or other proprietary, business or commercial information within the meaning of Fed. R. Civ. P. 26(c), whether embodied in physical objects, documents, or the factual knowledge of persons; and which has been so designated by the producing party. Only the following information or documents may be designated as "CONFIDENTIAL INFORMATION" under this Order: manufacturing bills of materials; detailed product specifications; quality control documents; supplier agreements, pricing and volumes; business plans that include competitive intelligence; sales documentation; pricing information and underlying strategies and tactics; and unit and dollar volume for each particular product and profit margins.

2. For purposes of this Order, "CONFIDENTIAL -- COUNSEL ONLY" shall mean information or material that is produced or disclosed by a producing party to a receiving party; which constitutes proprietary financial or technical information or commercially sensitive competitive information that the producing party maintains as highly confidential within its business. Only the following categories of documents may be designed "CONFIDENTIAL -- COUNSEL ONLY" under this Order: business plans that include competitive intelligence; pricing information and underlying strategies and tactics; and detailed financial and profit information.

3. Any document or tangible thing containing or including any CONFIDENTIAL INFORMATION may be designated as such by the producing party by marking it "CONFIDENTIAL" prior to or at the time copies are furnished to the receiving party. Any document or tangible thing containing or including any CONFIDENTIAL -- COUNSEL ONLY may be designated as such by the producing party by marking it "HIGHLY CONFIDENTIAL" prior to or at the time copies are furnished to the receiving party. CONFIDENTIAL INFORMATION and/or CONFIDENTIAL -- COUNSEL ONLY may sometimes be referred to herein as "Protected Material."

4. Inadvertent or unintentional production of documents or information containing CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY that are not designated as such shall not be deemed a waiver in whole or in part of a claim for confidential treatment. If a producing party inadvertently discloses or produces any information that it deems to be CONFIDENTIAL INFORMATION or CONFIDENTIAL --COUNSEL ONLY without so designating the information, the producing party shall promptly upon discovery of such inadvertent disclosure inform the receiving party in writing. The receiving party shall thereafter treat the CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY as if it had always been so designated under this Protective Order. To the extent that, prior to having been informed by the producing party, such information may already have been disclosed to persons not authorized to see the CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY, the receiving party shall make every reasonable effort to retrieve the information promptly from such persons and to limit any further disclosure to unauthorized persons. The receiving party shall bear no liability to the producing party, however, for the actions of third parties to whom such confidential information was disclosed prior to designation of such information as such by the producing party.

5. Testimony or information disclosed at a deposition that contains CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY may be designated as such by indicating on the record at the deposition the portions of the testimony containing such information. There shall be no wholesale designation of transcripts as CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY merely because portions of the transcript contain CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY. Alternatively, the producing party may designate testimony or information disclosed at a deposition, including exhibits, that contain CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY by notifying all parties in writing, within twenty (20) days after the producing party's receipt of the transcript, of the specific pages and lines of the transcript that contain such information. Whether or not designation is made at the time of a deposition, accessibility to each transcript (and the information contained therein) of any deposition in its entirety shall be limited to outside counsel of record only and persons in attendance at the deposition, from the taking of the deposition until twenty (20) days after the actual receipt of the transcript by the producing party, or until receipt of the notice referred to in this paragraph, whichever occurs sooner. At the expiration of the said twenty (20) day period, unless notice hereunder to the contrary is given at the time of the deposition or prior to the expiration of said period, the entire transcript shall be deemed non-confidential.

6. Any court reporter or videographer who reports, transcribes or videotapes testimony in this action shall not disclose any CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY, except pursuant to the terms of this Order. To the extent that CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY is used in depositions or at hearings, in the absence of an order entered by the Court to the contrary, such information shall remain subject to the provisions of this Order, along with the transcript pages of the deposition testimony and/or trial testimony referring to such information contained therein. The parties in conjunction with the Court will discuss whether certain protection of this Order for CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY should be embodied in a Protective Order that covers the trial in this matter.

7. In the event that any CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY is used in any court proceeding in this action, such information shall not lose its protection hereunder through such use. The confidentiality of such materials shall be protected or not protected as determined and directed by the Court.

8. All CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY not reduced to documentary, tangible, or physical form or which cannot be conveniently designated as set forth in Paragraph 4, shall be designated by the producing party by informing the receiving party of the designation in writing.

9. Any documents (including physical objects) made available for initial inspection by outside counsel of record for the receiving party prior to producing copies of selected items shall be considered, as a whole, to constitute CONFIDENTIAL -- COUNSEL ONLY and shall be subjected to this Order. Thereafter, the producing party shall have a reasonable time which shall not exceed 10 days to review and designate the appropriate documents as CONFIDENTIAL INFORMATION, or CONFIDENTIAL -- COUNSEL ONLY prior to furnishing copies to the receiving party.

10. The following information is not CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY:

(a) any information which at the time of disclosure to a receiving party is in the public domain;

(b) any information which after disclosure to a receiving party becomes part of the public domain as a result of publication not involving a violation of this Order or any violation of law;

(c) any information which a receiving party can show was received by it, whether before or after the disclosure, from a source who obtained the information lawfully and under no obligation of confidentiality to the producing party; and

(d) any information which a receiving party can show was independently developed by it after the time of disclosure by personnel who have not had access to the producing party's CONFIDENTIAL INFORMATION or CONFIDENTIAL -- COUNSEL ONLY, and

(e) any information that the Court concludes does not qualify for protection under Fed. R. Civ. P. 26(c).

No Waiver Of Privilege

11. Inspection or production of documents (including physical objects) shall not constitute a waiver of the attorney-client privilege or work-product immunity or any other applicable privilege or immunity from discovery if, as soon as reasonably possible after the producing party becomes aware of any inadvertent or unintentional disclosure, the producing party designates any such documents as within the attorney-client privilege or work-product immunity or any other applicable privilege or immunity and requests return of such documents to the producing party. Upon request by the producing party, the producing party shall add the inadvertently produced document(s) to a log in accordance with Fed.R.Civ.P. 26(b)(5), the receiving party shall immediately return all copies (except as explained below) of such inadvertently produced document(s) and shall immediately destroy the content of any such inadvertently produced document(s) in any receiving party work product. The receiving party shall not use such information for any purpose until further Order of the Court. Nothing herein shall prevent the receiving party from challenging the propriety of the attorney-client privilege or work product immunity or other applicable privilege or immunity designation by submitting a written challenge to the Court. To do so, the receiving party may retain a copy of the inadvertently produced document(s) for submission to the Court. The challenge shall not assert as a ground for production the fact or circumstances of the inadvertent production or any information about the contents of the materials that was gained due to the inadvertent production. The protections against waiver of applicable privileges set out in this paragraph are in addition to the protections provided under Fed. R. Evid. 502(b).

Discovery Rules Remain Unchanged

12. Nothing herein shall alter or change in any way the discovery provisions of the Federal Rules of Civil Procedure. Identification of any individual pursuant to this Protective Order does not make that individual available for deposition or any other form of discovery outside of the restrictions and procedures of the Federal Rules of Civil Procedure, the Local Rules, or any other applicable order of this Court.

Persons Authorized To Receive Confidential Information And Highly ...


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