UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
March 16, 2010
ELAN MICROELECTRONICS CORPORATION, PLAINTIFF,
APPLE, INC., DEFENDANT.
The opinion of the court was delivered by: Hon. Patricia V. Trumbull United States Magistrate Judge
AND RELATED COUNTERCLAIMS.
STIPULATED PROTECTIVE ORDER CONCERNING MATERIALS PRODUCED BY 3M PURSUANT TO SUBPOENA
Apple, Inc. ("Apple") (collectively, the "Litigants") have each served a subpoena on Third-3 Systems, Inc. ("3M"), and in response thereto 3M is engaged in the collection and production of documents and other materials, including electronic data, as part of the above-captioned litigation; WHEREAS, the Litigants and 3M acknowledge the utility of this process in reducing the electronic files that may contain responsive and/or relevant information;
WHEREAS, following such inspection, 3M will re-review the specific materials of the materials to be reviewed, and the difficulty on 3M's part of ascertaining what portions of such materials are in fact responsive and/or relevant to the Litigants' requests, it would be significantly more cost-effective and efficient for the Litigants to inspect the materials to identify which documents or files each wishes to have 3M copy and produce to the Litigants in response to their respective subpoenas;
WHEREAS, 3M and the Litigants wish to insure that 3M will not be subject to any costs and increasing the likelihood that relevant materials will be identified, and further acknowledge that while 3M has made efforts to identify and withhold from the inspection any document or file 3M believes is protected from discovery by the attorney-client privilege or the attorney work product doctrine, in view of the accelerated timetable on which the Litigants wish access to the materials and the volume and nature of the materials to be reviewed, there is a possibility that privileged or otherwise protected materials will be produced inadvertently for inspection;
WHEREAS, Plaintiff Elan Microelectronics Corporation ("Elan") and Defendant selected for production by the Litigants and will identify and withhold from such production any materials that it believes are privileged or otherwise immune from discovery; and
WHEREAS, 3M has searched for and gathered a significant quantity of paper and claim that it has waived its privilege or other immunity from discovery by having produced such materials to the Litigants for inspection under these conditions,
WHEREAS, the Litigants and 3M have determined that in view of the quantity and age Party Subpoena recipients 3M Company, 3M Innovative Properties Company, and 3M Touch to issue an Order protecting such privileged information on the following terms:
1. In accordance with Federal Rule of Evidence 502 and through agreement, they wish to have copied and produced, 3M shall have the right to review such selected documents and electronic files and to withhold any such selected documents and electronic files that it reasonably deems to be privileged or otherwise protected from discovery by the attorney work product doctrine. 3M will produce a log of documents and files withheld from production on any of the grounds identified in this paragraph.
2. Once the Litigants have selected the specific documents or electronic files that production for inspection of materials that are privileged or otherwise protected from discovery will not constitute a waiver of privilege or work product protection for those materials or the subject matter of those materials in this proceeding or in other Federal or State proceedings involving the parties to this proceeding or third parties.
3. If after producing copies of selected documents and electronic files to the Litigants 3M discovers that it has inadvertently produced a privileged or work product protected document or electronic file (which privilege or protection 3M does not intend to waive), 3M shall be entitled to notify and retrieve the inadvertently produced documents or files as provided in Paragraph 16 of the Amended Stipulated Protective Order Governing the Use of Disclosure and Use of Discovery Materials, dated February 11, 2010 ("February Protective Order").
4. The terms and protections provided by this Order are in addition to the protections for confidential and privileged information provided by the February Protective Order, which shall be deemed to apply to materials produced by 3M. In the event of any apparent conflict between the terms of this Order and the February Protective Order, the terms most protective of 3M's rights in its confidential and privileged information shall be deemed to apply.
NOW THEREFORE, the Litigants and 3M stipulate and respectfully request the Court.
DATED: March 16, 2010
Hildy Bowbeer Assistant Chief Intellectual Property Counsel 3M COMPANY 3M INNOVATIVE PROPERTIES CO. 3M TOUCH SYSTEMS, INC.
Sonal N. Mehta WEIL, GOTSHAL & MANGES LLP Attorneys for Apple Inc.
Sean P. DeBruine ALSTON & BIRD LLP Attorneys for Elan Microelectronics Corporation
PURSUANT TO STIPULATION IT IS SO ORDERED.
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