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Shaklee Corporation v. Harpercollins Publishers LLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


February 4, 2011

SHAKLEE CORPORATION,
PLAINTIFF,
v.
HARPERCOLLINS PUBLISHERS LLC, A
DELAWARE CORPORATION, AND CYNTHIA SASS, AN INDIVIDUAL, DEFENDANTS.

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

STIPULATED PROTECTIVE ORDER

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.

1. PURPOSES AND LIMITATIONS

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

2. DEFINITIONS

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.

3. SCOPE

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.

4. DURATION

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. DESIGNATING PROTECTED MATERIAL

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 does not waive its right 18 to challenge a confidentiality designation by electing not to mount a challenge promptly after the 19 original designation is disclosed.

"Highly Confidential -- Attorneys' Eyes Only" after the material was initially produced, the

CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges. Any Party may challenge a designation of

6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating

Party's confidentiality designation must do so in good faith and must begin the process by 22 conferring directly (in voice to voice dialogue, if possible) with counsel for the Designating Party.

In conferring, the challenging Party must explain the basis for its belief that the confidentiality 24 designation was not proper and must give the Designating Party an opportunity to review the 25 designated material, to reconsider the circumstances, and, if no change in designation is offered, to 26 explain the basis for the chosen designation. A challenging Party may proceed to the next stage of 27 the challenge process only if it has engaged in this meet and confer process first.

6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality designation after considering the justification offered by the Designating Party may 2 file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 3 applicable) that identifies the challenged material and sets forth in detail the basis for the 4 challenge. Each such motion must be accompanied by a competent declaration that affirms that the 5 movant has complied with the meet and confer requirements imposed in the preceding paragraph 6 and that sets forth with specificity the justification for the confidentiality designation that was 7 given by the Designating Party in the meet and confer dialogue. The burden of persuasion in any 8 such challenge proceeding shall be on the Designating Party. Until the court rules on the 9 challenge, all parties shall continue to afford the material in question the level of protection to 10 which it is entitled under the Producing Party's designation. disclosed or produced by another Party or by a non-party in connection with this case only for 14 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 15 disclosed only to the categories of persons and under the conditions described in this Order. When 16 the litigation has been terminated, a Receiving Party must comply with the provisions of section Receiving Party at a location and in a secure manner that ensures that access is limited to the 19 persons authorized under this Order.

7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 22 disclose any information or item designated CONFIDENTIAL only to: 23

(a) the Receiving Party's Outside Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this 25 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 26 hereto as Exhibit A; 27

7. ACCESS TO AND USE OF PROTECTED MATERIAL

7.1 Basic Principles. A Receiving Party may use Protected Material that is 11, below (FINAL DISPOSITION). Protected Material must be stored and maintained by a 18 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); disclosure is reasonably necessary for this litigation, (2) who have signed the "Agreement to Be

7.4, below, have been followed; 6 is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by 9

(f) during their depositions, witnesses in the action (1) to whom disclosure is reasonably necessary for this litigation, (2) who have signed the "Agreement to Be Bound by 12

Protective Order" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4, 13 below, have been followed; Pages of transcribed deposition testimony or exhibits to depositions 14 that reveal Protected Material must be separately bound by the court reporter and may not be 15 disclosed to anyone except as permitted under this Stipulated Protective Order. 16 information or a custodian or other person who otherwise possessed or knew the information. 18

Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY 21

(a) the Receiving Party's Outside Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this 24 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 25 hereto as Exhibit A; necessary for this litigation, (2) who have signed the "Agreement to Be Bound by Protective 28

(c) Experts (as defined in this Order) of the Receiving Party (1) to whom Bound by Protective Order" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 5

(d) the Court and its personnel;

(e) court reporters, their staffs, and professional vendors to whom disclosure Protective Order" (Exhibit A); 10

(g) the author or a recipient of the document or the original source of the

7.3 Disclosure of "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES

ONLY" Information or Items. Unless otherwise ordered by the court or permitted in writing by the 20

(b) Experts (as defined in this Order) (1) to whom disclosure is reasonably Order" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4, below, have been followed; 2 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be 5

(e) the author or a recipient of the document or the original source of the information or a custodian or other person who otherwise possessed or knew the information. 8

(c) the Court and its personnel;

(d) court reporters, their staffs, and professional vendors to whom Bound by Protective Order" (Exhibit A); and 6

7.4 Procedures for Approving Disclosure of "CONFIDENTIAL" and

(a) Unless otherwise ordered by the court or agreed in writing by the Designating Party, a Party that seeks to disclose to an "Expert" (as defined in this Order) any 12 information or item that has been designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 13

(1) sets forth the full name of the Expert and the city and state of his or her primary place of 15 business, (2) attaches a copy of the Expert's current resume, (3) identifies the Expert's current 16 employer(s), (4) identifies each person or entity from whom the Expert has received compensation 17 for work in his or her areas of expertise or to whom the expert has provided professional services 18 at any time during the preceding five years, and (5) identifies (by name and number of the case 19 and location of court) any litigation in connection with which the Expert has provided any 20 professional services during the preceding five years. 21

-- ATTORNEYS' EYES ONLY" first must make a written request to the Designating Party that 14

(b) Unless otherwise ordered by the court or agreed in writing by the Designating Party, a Party that seeks to disclose to a non-party witness during deposition any 23 information or item that has been designated "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 24

-- ATTORNEYS' EYES ONLY" and as to such witness disclosure of such information or item 25 would otherwise not be permitted under paragraphs 7.2 or 7.3, above, first must make a written 26 request to the Designating Party that (1) identifies generally the information sought to be 27 disclosed, (2) sets forth the full name of the witness and the city and state of his or her primary 28 place of business, (3) identifies the witness' current employer(s). the preceding paragraphs (a) and (b) may disclose the subject Protected Material to the identified 3

Expert or witness unless, within seven court days of delivering the request, the Party receives a 4 written objection from the Designating Party. Any such objection must set forth in detail the 5 grounds on which it is based.with the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 8 agreement. If no agreement is reached, the Party seeking to make the disclosure to the Expert may 9 file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 10 applicable) seeking permission from the court to do so. Any such motion must describe the 11 circumstances with specificity, set forth in detail the reasons for which the disclosure to the Expert 12 or witness is reasonably necessary, assess the risk of harm that the disclosure would entail and 13 suggest any additional means that might be used to reduce that risk. In addition, any such motion 14 must be accompanied by a competent declaration in which the movant describes the parties' 15 efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer 16 discussions) and sets forth the reasons advanced by the Designating Party for its refusal to approve 17 the disclosure. In any such proceeding the Party opposing disclosure to the Expert or witness shall 18 bear the burden of proving that the risk of harm that the disclosure would entail (under the 19 safeguards proposed) outweighs the Receiving Party's need to disclose the Protected Material to 20 the Expert or witness. 21

(c) A Party that makes a request and provides the information specified in

(d) A Party that receives a timely written objection must meet and confer 24 would compel disclosure of any information or items designated in this action as 25

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. 23

Receiving Party must so notify the Designating Party, in writing (by fax, if possible) immediately 27 and in no event more than three court days after receiving the subpoena or order. Such notification 28 must include a copy of the subpoena or court order. The Receiving Party also must immediately

If a Receiving Party is served with a subpoena or an order issued in other litigation that inform in writing the Party who caused the subpoena or order to issue in the other litigation that 2 some or all the material covered by the subpoena or order is the subject of this Protective Order. In 3 addition, the Receiving Party must deliver a copy of this Stipulated Protective Order promptly to 4 the Party in the other action that caused the subpoena or order to issue. The purpose of imposing 5 these duties is to alert the interested parties to the existence of this Protective Order and to afford 6 the Designating Party in this case an opportunity to try to protect its confidentiality interests in the 7 court from which the subpoena or order issued. The Designating Party shall bear the burdens and 8 the expenses of seeking protection in that court of its confidential material -- and nothing in these 9 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 10 disobey a lawful directive from another court.

9. UNAUTHORIZED OR INADVERTENT DISCLOSURE OF PROTECTED MATERIAL 13

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 16 unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, 17

(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 18 this Order, and (d) request such person or persons to execute the "Acknowledgment and 19

Acceptance by a party or its attorney of information disclosed under designation as protected shall not constitute an admission that the information is, in fact, entitled to protection. 22

Inadvertent disclosure of information which the disclosing party intended to designate as 23 protected shall not constitute waiver of any right to claim the information as protected upon 24 discovery of the error. The inadvertent production of any privileged material shall not be 25 deemed a waiver or impairment of any claim of privilege with respect to that material, including, 26 but not limited to, the attorney-client privilege and/or work-product doctrine. Any party or its 27 counsel recognizing that he/she/it has obtained material containing in whole or in part 28 information protected by the attorney-client privilege and/or work-product doctrine that appears

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Stipulated Protective 15

Agreement to Be Bound" that is attached hereto as Exhibit A. to have been inadvertently disclosed shall not read or review the privileged material but shall 2 immediately return the material to the producing party. Within ten (10) business days of 3 receiving written notice from a person or party who represents that he/she/it has inadvertently 4 produced any privileged material, the recipient(s) of such request shall return the original and all 5 copies of such inadvertently produced privileged material within his/her/its possession, custody, 6 or control. 7

9 appropriate notice to all interested persons, a Party may not file in the public record in this action 10 any Protected Material. A Party that seeks to file under seal any Protected Material must comply 11 with Civil Local Rule 79-5. 12 after the final termination of this action, each Receiving Party must return all Protected Material 15 to the Producing Party or destroy such material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries or any other form of 17 reproducing or capturing any of the Protected Material. Whether the Protected Material is 18 returned or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the sixty day deadline 20 that identifies (by category, where appropriate) all the Protected Material that was returned or 21 destroyed and that affirms that the Receiving Party has not retained any copies, abstracts, 22 compilations, summaries or other forms of reproducing or capturing any of the Protected 23 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 24 pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work 25 product, even if such materials contain Protected Material. Any such archival copies that contain 26 or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION), above. 28

MISCELLANEOUS FILING PROTECTED MATERIAL.

Without written permission from the Designating Party or a court order secured after

11. FINAL DISPOSITION.

Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days

12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future.

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or 5 producing any information or item on any ground not addressed in this Stipulated Protective 6 Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of 7 the material covered by this Protective Order. 8

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 9 10

WILSON SONSINI GOODRICH & ROSATI Professional Corporation

By: Colleen Bal

Attorneys for Plaintiff

SHAKLEE CORPORATION

Dated: February 4, 2011 O'MELVENY & MYERS LLP 16 17

By: Ryan J. Padden

Attorneys for Defendants

HARPERCOLLINS PUBLISHERS LLC and CYNTHIA SASS PURSUANT TO STIPULATION, IT IS SO ORDERED. 22

DATED: February 7, 2011

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, [print or type full name], of [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated 6 Protective Order that was issued by the United States District Court for the Northern District of California on in the case of Shaklee Corp. v. HarperCollins Publishers 8LLC, et al., Case No. 11-00144-PSG. I agree to comply with and to be bound by all the terms of 9 this Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will 11 not disclose in any manner any information or item that is subject to this Stipulated Protective 12

Order to any person or entity except in strict compliance with the provisions of this Order. 13

I further agree to submit to the jurisdiction of the United States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. 16

I hereby appoint [print or type full name] of [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings 19 related to enforcement of this Stipulated Protective Order. 20 21

Date:City and State where sworn and signed: 23 24 Printed name: 25

Signature: DECLARATION OF CONSENT

Pursuant to General Order 45, the undersigned certifies that concurrence in the filing of the document was obtained from each of the other signatories. 4 Dated: February 4, 2011 By: /s/ Anthony Weibell Anthony Weibell Declaration of Consent

20110204

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