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Shaklee Corporation v. Harpercollins Publishers LLC

February 4, 2011


The opinion of the court was delivered by: The Honorable Paul S. Grewal United States District Judge


confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation would be 5 warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does not confer 7 blanket protections on all disclosures or responses to discovery and that the protection it affords 8 extends only to the limited information or items that are entitled under the applicable legal 9 principles to treatment as confidential. The parties further acknowledge, as set forth in Section 10 below, that this Stipulated Protective Order creates no entitlement to file confidential 11 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed 12 and reflects the standards that will be applied when a party seeks permission from the court to 13 file material under seal. employees, consultants, retained experts, and outside counsel (and their support staff). medium or manner generated, stored, or maintained (including, among other things, testimony, 19 transcripts, or tangible things) that are produced or generated in disclosures or responses to 20 discovery in this matter. generated, stored or maintained) or tangible things that qualify for protection under standards 23 developed under F.R.Civ.P. 26(c).

2.4 "Highly Confidential -- Attorneys' Eyes Only" Information or Items: extremely sensitive "Confidential Information or Items" whose disclosure to another Party or 26 nonparty would create a substantial risk of serious injury that could not be avoided by less 27 restrictive means.


Disclosure and discovery activity in this action are likely to involve production of


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

2.2 Disclosure or Discovery Material: all items or information, regardless of the

2.3 "Confidential" Information or Items: information (regardless of how

2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 2

2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery Material in this action. 4

2.7 Designating Party: a Party or non-party that designates information or items that it produces in disclosures or in responses to discovery as "Confidential" or "Highly Confidential - Attorneys' Eyes Only." 7

2.8 Protected Material: any Disclosure or Discovery Material that is designated as "Confidential" or as "Highly Confidential -- Attorneys' Eyes Only." 9

2.9. Outside Counsel: attorneys who are not employees of a Party but who are retained to represent or advise a Party in this action. 11

2.10 House Counsel: attorneys who are employees of a Party.

2.11 Counsel (without qualifier): Outside Counsel and House Counsel (as well as their support staffs). 14

2.12 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert 16 witness or as a consultant in this action and who is not a past or a current employee of a Party or 17 of a competitor of a Party's and who, at the time of retention, is not anticipated to become an 18 employee of a Party or a competitor of a Party's. This definition includes a professional jury or 19 trial consultant retained in connection with this litigation. 20

2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 22 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 23 subcontractors.


The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, 27 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by 28 parties or counsel to or in court or in other settings that might reveal Protected Material.


Even after the termination of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 4 otherwise directs. 5


5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or non-party that designates information or items for protection under this Order must take 8 care to limit any such designation to specific material that qualifies under the appropriate 9 standards. A Designating Party must take care to designate for protection only those parts of 10 material, documents, items, or oral or written communications that qualify -- so that other portions 11 of the material, documents, items, or communications for which protection is not warranted are 12 not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized 13 designations are prohibited. Designations that are shown to be clearly unjustified, or that have 14 been made for an improper purpose (e.g., to unnecessarily encumber or retard the case 15 development process, or to impose unnecessary expenses and burdens on other parties), expose the Designating Party to sanctions. If it comes to a Party's or a non-party's attention that information 17 or items that it designated for protection do not qualify for protection at all, or do not qualify for 18 the level of protection initially asserted, that Party or non-party must promptly notify all other 19 parties that it is withdrawing the mistaken designation. 20

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, 22 material that qualifies for protection under this Order must be clearly so designated before the 23 material is disclosed or produced. Designation in conformity with this Order requires: depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 26

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" at the top 27 of each page that contains protected material. A Party or non-party that makes original documents 28 or materials available for inspection need not designate them for protection until after the (a) for information in documentary form (apart from transcripts of inspecting Party has indicated which material it would like copied and produced. During the 2 inspection and before the designation, all of the material made available for inspection shall be 3 deemed "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." After the inspecting Party 4 has identified the documents it wants copied and produced, the Producing Party must determine 5 which documents, or portions thereof, qualify for protection under this Order, then, before 6 producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY") at the top 8 of each page that contains Protected Material. If only a portion or portions of the material on a 9 page qualifies for protection, the Producing Party also must clearly identify the protected 10 portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each 11 portion, the level of protection being asserted (either "CONFIDENTIAL" or "HIGHLY (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Party or non-party offering or sponsoring the testimony identify on the record, before the 15 close of the deposition, hearing, or other proceeding, all protected testimony, and further specify 16 any portions of the testimony that qualify as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 17 -- ATTORNEYS' EYES ONLY." The Party or non-party that sponsors, offers, or gives the 18 testimony may also elect to have up to 20 days to identify the specific portions of the testimony as 19 to which protection is sought and to specify the level of protection being asserted

Only 21 those portions of the testimony that are appropriately designated for protection within the 20 days 22 shall be covered by the provisions of this Stipulated Protective Order. Transcript pages containing Protected Material must be separately bound by the court reporter, who must affix to the top of 24 each such page the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," as instructed by the Party or nonparty offering or sponsoring the witness or 26 presenting the testimony.any other tangible items, that the Producing Party affix in a prominent place on the exterior of the

(c) for information produced in some form other than documentary, and for container or containers in which the information or item is stored the legend "CONFIDENTIAL" 2 or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." If only portions of the 3 information or item warrant protection, the Producing Party, to the extent practicable, shall 4 identify the protected portions, specifying whether they qualify as "Confidential" or as "Highly

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items as "Confidential" or "Highly Confidential -- Attorneys' Confidential -- Attorneys' Eyes Only." 6

Eyes Only" does not, standing alone, waive the Designating Party's right to secure protection 9 under this Order for such material. If material is appropriately designated as "Confidential" or 10 Receiving Party, on timely notification of the designation, must make reasonable efforts to assure 12 that the material is treated in accordance with the provisions of this Order. confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 16 designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic 17 burdens, or a later significant disruption or delay of the litigation, a Party ...

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