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PSI Systems, Inc. v. Stamps.Com Inc.

May 20, 2010

PSI SYSTEMS, INC., A CORPORATION PLAINTIFF.
v.
STAMPS.COM INC., A CORPORATION DEFENDANT.



The opinion of the court was delivered by: Honorable Otis D. Wright II

Courtroom 11

[PROPOSED] STIPULATED PROTECTIVE ORDER AND RELATED COUNTERCLAIMS STIPULATED PROTECTIVE ORDER

The Court, having reviewed the Joint Stipulation Regarding the Protective Order, hereby ORDERS that pursuant to Federal Rule of Civil Procedure Rule 26(c), any person subject to this Order -- including without limitation the parties to PSI Systems, Inc. v. Stamps.com Inc., Case No. CV 08-05233 ODW(CTx) ("PSI v. Stamps.com" or "this action"), their representatives, agents, experts and consultants and all persons acting in concert or participation with them, and all other persons with actual or constructive notice of this Order -- shall adhere to the following terms, upon penalty of contempt:

1. Any person subject to this Order who receives from any other person any "Discovery Material" (i.e., information of any kind provided in the course of discovery) that is designated as "Confidential", "Highly Confidential," "Highly Confidential Source Code," or "Highly Confidential Third Party" pursuant to the terms of this Order shall not disclose such Confidential, Highly Confidential, Highly Confidential Source Code, or Highly Confidential Third Party Discovery Material to anyone else except as expressly permitted hereunder.

2. The entity producing any given Discovery Material ("Designating Entity") may designate as Confidential only such portion of such material as consists of non-public information that the Designating Entity, in the ordinary course of business, would not disclose to the public or to its competitors, including but not limited to:

a. non-public financial information (including without limitation revenues, profitability reports or estimates, percentage fees, design fees, royalty rates, minimum guarantee payments, sales reports and sale margins);

b. non-public material relating to ownership or control of any nonpublic company;

c. non-public business plans, product development information, or marketing plans;

d. any information of a personal or intimate nature regarding any individual;

e. non-public research and development information (including without limitation system flow charts and computer programs in source and object code form);

f. unpublished United States or foreign patent applications;

g. trade secrets; or

h. any other category of information hereinafter given confidential status by the Court.

3. The Designating Entity may designate as Highly Confidential only such portion of such Confidential Discovery Material as consists of information whose disclosure to competitors or to the public would cause a risk of serious harm to the Designating Entity, including but not limited to trade secrets, non-public financial information, non-public research and development information, unpublished United States or foreign patent applications, business plans relating to future or proposed operations, product development information, and marketing plans. The parties are hereby ordered to endeavor in good faith to limit their designations of discovery material as "Highly Confidential," "Highly Confidential Source Code," or "Highly Confidential Third Party."

4. The Designating Entity may designate as "Highly Confidential Source Code" only source code, or similarly sensitive software code (collectively, "Source Code") that the Designating Party believes in good faith is not generally known to others and has significant competitive value such that unrestricted disclosure to others would create a substantial risk of serious injury, and which the Designating Party (i) would not normally reveal to third parties except in confidence or has undertaken with others to maintain in confidence, and (ii) believes in good faith is significantly sensitive and protected by a right to privacy under federal or state law or any other applicable privilege or right related to confidentiality or privacy.

5. The parties acknowledge that certain materials in their possession may be subject to confidentiality obligations owed to third parties, or to protective orders entered in prior or concurrently pending lawsuits ("Disclosure Restriction"). In the event that any discovery request seeks disclosure of any documents or information subject to a Disclosure Restriction, the party from whom discovery is requested shall notify the requesting party of the Disclosure Restriction within thirty (30) days (i) of receipt of such discovery request, or (ii) following entry of this Protective Order, and shall within the same period request of the third party to whom it owes the confidentiality obligation authorization to produce the requested materials or information. In the event that such authorization is not provided, the party from whom discovery is sought shall, within the later of (i) forty-five (45) days following service of the discovery request, or (ii) thirty (30) days following entry of this Protective Order, move for a protective order regarding the materials or information at issue, and in such event shall be under no obligation to produce the materials or information at issue until the Court has ruled on the motion for a protective order. In the event that the party from whom discovery is sought fails to file and serve its motion for a protective order within such period, then such party shall produce the materials or information at issue. If a designated entity is required to produce third party information subject to protective orders entered in prior or concurrently pending lawsuits ("Protected Third Party Information"), such Protected Third Party Information shall be designated as "Highly Confidential Third Party."

6. All "Confidential," "Highly Confidential," "Highly Confidential Source Code" and "Highly Confidential Third Party" Discovery Material produced in the course of the action in PSI v. Stamps.com and the action in Stamps.com Inc. v. Endicia, Inc., et al., Case No. CV 06-7499 ODW (CTx) ("Stamps.com v. Endicia") (collectively "these actions") (excluding information the public disclosure of which is made or authorized by the Designating Party, or that is or becomes publicly available through no action of any party to this litigation or other person subject to this Order) shall be used by the party or parties to whom the information is produced solely for the purposes of these actions and any appeal from an order or judgment entered in these actions. Any Discovery Material produced in Stamps.com v. Endicia may be used in PSI v. Stamps.com and any Discovery Material produced in PSI v. Stamps.com may be used in Stamps.com v. Endicia.

7. With respect to the confidential portion of any Discovery Material other than deposition transcripts and exhibits, the producing person or that person's counsel may designate such portion as "Confidential," "Highly Confidential," "Highly Confidential Source Code," or "Highly Confidential Third Party" by stamping or otherwise clearly marking as "Confidential," "Highly Confidential," "Highly Confidential Source Code," or "Highly Confidential Third Party" the protected portion in a manner that will not interfere with legibility or audibility. With respect to Discovery Material that is contained in a medium that preserves data in an electronic format such as a hard drive, CD or DVD, the producing person or that person's counsel may designate such portion as "Confidential," "Highly Confidential" "Highly Confidential Source Code," or "Highly Confidential Third Party" by clearly marking as "Confidential," "Highly Confidential" "Highly Confidential Source Code," or "Highly Confidential Third Party" each page of the Discovery Material to which the producing person wishes such designation to apply. With respect to deposition transcripts and exhibits, a producing person or that person's counsel may indicate on the record that a question calls for Confidential, Highly Confidential Highly Confidential Source Code, or Highly Confidential Third Party, in which case the transcript of the designated testimony shall be marked by the reporter as "Confidential Information Governed by Protective Order," "Highly Confidential Governed by Protective Order," "Highly Confidential Source Code Governed by Protective Order" or "Highly Confidential Third Party Governed by Protective Order" as appropriate. In addition, a party or non-party may designate in writing, within twenty (20) days after receipt of a deposition transcript for which the designation is proposed, that specific pages of the transcript be treated as Confidential, Highly Confidential, Highly Confidential -- Source Code, or Highly Confidential Third Party. During the period prior to such designation or the expiration of such twenty (20) day period, each deposition transcript and all exhibits to each such transcript shall be deemed to be Highly Confidential. Any other party may object to such proposal, in writing or on the record. Upon such objection, the procedures described in paragraph 12 below shall be followed. After any designation made according to the procedures set forth in this paragraph, the designated documents or information shall be treated ...


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