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November 30, 2010


The opinion of the court was delivered by: The Honorable Claudia Wilken United States District Judge

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Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5

Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 10 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential 11 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 12 the standards that will be applied when a party seeks permission from the court to file material 13 under seal. 14



2.1 Challenging Party: a Party or Non-Party that challenges the designation of 16 information or items under this Order. 17

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 18 generated, stored or maintained) or tangible things that qualify for protection under Federal 19 Rule of Civil Procedure 26(c). 20

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 21 well as their support staff). 22

2.4 Designating Party: a Party or Non-Party that designates information or items that it 23 produces in disclosures or in responses to discovery as "CONFIDENTIAL." 24

2.5 Disclosure or Discovery Material: all items or information, regardless of the 25 medium or manner in which it is generated, stored, or maintained (including, among other things, 26 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 27 responses to discovery in this matter. 28 2 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 3 consultant in this action. 4 5

2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to

2.7 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 6 7 entity not named as a Party to this action. 8 9 action but are retained to represent or advise a party to this action and have appeared in this action 10 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 11 12 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 13 14

2.8 Non-Party: any natural person, partnership, corporation, association, or other legal

2.9 Outside Counsel of Record: attorneys who are not employees of a party to this

2.10 Party: any party to this action, including all of its officers, directors, employees,

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 15 16

2.12 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 17 organizing, storing, or retrieving data in any form or medium) and their employees and 18 subcontractors. 19 20

2.13 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL." 21 22

2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 23 24 25


The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 26 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 27 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 28

However, the protections conferred by this Stipulation and Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a 2 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 3 a result of publication not involving a violation of this Order, including becoming part of the 4 public record through trial or otherwise; and (b) any information known to the Receiving Party 5 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 6 obtained the information lawfully and under no obligation of confidentiality to the Designating 7 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 8


10 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 11 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 12 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 13 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 14 including the time limits for filing any motions or applications for extension of time pursuant to 15 applicable law. 16 17 18 or Non-Party that designates information or items for protection under this Order must take care 19 to limit any such designation to specific material that qualifies under the appropriate standards. 20

The Designating Party must designate for protection only those parts of material, documents, 21 items, or oral or written communications that qualify -- so that other portions of the material, 22 documents, items, or communications for which protection is not warranted are not swept 23 unjustifiably within the ambit of this Order. 24

25 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 26 unnecessarily encumber or retard the case development process or to impose unnecessary 27 expenses and burdens on other parties) expose the Designating Party to sanctions. 28


DB2/21978141.2 CASE NO. C 10-01763 CW


Even after final disposition of this litigation, the confidentiality obligations imposed by


5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party Mass, indiscriminate, or routinized designations are prohibited. Designations that are 2 for protection do not qualify for protection, that Designating Party must promptly notify all other 3

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 6 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 7 designated before the material is disclosed or produced. 8 9 10 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 11 Party affix the legend "CONFIDENTIAL" to each page that contains protected material. If only 12 portion or portions of the material on a page qualifies for protection, the Producing Party also 13 must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 14 margins). 15

A Party or Non-Party that makes original documents or materials available for inspection 16 need not designate them for protection until after the inspecting Party has indicated which 17 material it would like copied and produced. During the inspection and before the designation, all 18 of the material made available for inspection shall be deemed "CONFIDENTIAL." After the 19 inspecting Party has identified the documents it wants copied and produced, the Producing Party 20 must determine which documents, or portions thereof, qualify for protection under this Order. 21

"CONFIDENTIAL" legend to each page that contains Protected Material. If only a portion or 23 portions of the material on a page qualifies for protection, the Producing Party also must clearly 24 identify the protected portion(s) (e.g., by making appropriate markings in the margins). 25 26

If it comes to a Designating Party's attention that information or items that it designated Parties that it is withdrawing the mistaken designation. 4 5

Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but Then, before producing the specified documents, the Producing Party must affix the 22

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other 27 proceeding, all protected testimony. 28 2 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 3 or containers in which the information or item is stored the legend "CONFIDENTIAL." If only a 4 portion or portions of the information or item warrant protection, the Producing Party, to the 5 extent practicable, shall identify the protected portion(s). 6

(c) for information produced in some form other than documentary and for any other

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 7 designate qualified information or items does not, standing alone, waive the Designating Party's 8 right to secure protection under this Order for such material. Upon timely correction of a 9 designation, the Receiving Party must make reasonable efforts to assure that the material is 10 treated in accordance with the provisions of this Order. 11 12 13 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 14 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 15 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 16 challenge a confidentiality designation by electing not to mount a challenge promptly after the 17 original designation is disclosed. 18

19 process by providing written notice of each designation it is challenging and describing the basis 20 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 21 notice must recite that the challenge to confidentiality is being made in accordance with this 22 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 23 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 24 forms of communication are not sufficient) within 14 days of the date of service of notice. In 25 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 26 designation was not proper and must give the Designating Party an opportunity to review the 27 designated material, to reconsider the circumstances, and, if no change in designation is offered, 28 to explain the basis for the chosen designation. A Challenging Party may proceed to the next


DB2/21978141.2 CASE NO. C 10-01763 CW


6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution stage of the challenge process only if it has engaged in this meet and confer process first or 2 establishes that the Designating Party is unwilling to participate in the meet and confer process in 3 a timely manner. 4 5 intervention, the Designating Party shall file and serve a motion to retain confidentiality under 6

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days 7 of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer 8 process will not resolve their dispute, whichever is earlier. Each such motion must be 9 accompanied by a competent declaration affirming that the movant has complied with the meet 10 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 11 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 12 shall automatically waive the confidentiality designation for each challenged designation. In 13 addition, the Challenging Party may file a motion challenging a confidentiality designation at any 14 time if there is good cause for doing so, including a challenge to the designation of a deposition 15 transcript or any ...

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