UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, SAN JOSE DIVISION
March 10, 2011
REFLEX PACKAGING, INC.,
STEPHEN GOULD CORPORATION, DEFENDANT.
PROTECTIVE ORDER AND RELATED COUNTERCLAIMS 26 27
[Complaint Filed: July 1, 2010]
1. PURPOSES AND LIMITATIONS
Disclosure and discovery in this action are likely to involve
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 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 that this Stipulated
Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that will be applied when a 12 party seeks permission from the Court to file material under seal.
2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.
2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).
2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).
2.4 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".
2.5 Disclosure or Discovery Material: all items or information,
the medium or manner in which it is generated, stored, or
maintained (including, among other 26 things, testimony, transcripts,
and tangible things), that are produced or generated in disclosures or
responses to discovery in this matter.
Stipulated Protective Order For Litigation
2.6 Expert: a person with specialized knowledge or experience in a
pertinent to the litigation who (1) has been retained by a Party or
its counsel to serve as an expert 3 witness or as a consultant in this
action, (2) not a past or current employee of a Party or of a
Party's competitor and (3) at the time of retention, is not
anticipated to become an employee of a
Party or of a Party's competitor.
2.7 "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another Party or Non-Party or to House Counsel for a Party would create substantial risk of serious harm 9 that could not be avoided by less restrictive means. 10
2.8 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.
2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not officers,
employees of a party to this action but are retained to represent
or advise a party to this action and 16 have appeared in this action
on behalf of that party or are affiliated with a law firm which has 17
appeared on behalf of that party.
2.11 Party: any party to this action, including all of its officers,
employees, consultants, retained experts, and Outside Counsel of
Record (and their support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action.
2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 24 organizing, storing, or retrieving data in any form or medium) and their employees and 25 subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL" or as "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."
2.15 Receiving Party: a Party that receives Disclosure or Discovery
from a Producing Party.
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) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 7 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. The protections conferred by this Stipulation and Order, however, do not cover the 9 following information: (a) any information that is in the public domain at the time of disclosure to 10 a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 11 a result of publication not involving a violation of this Order, including becoming part of the 12 public record through trial or otherwise; and (b) any information known to the Receiving Party 13 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 14 obtained the information lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing 19 or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal 20 of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein 21 after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 22 action, including the time limits for filing any motions or applications for extension of time 23 pursuant to applicable law. For a period of six months after the final disposition of this action, this 24 court will retain jurisdiction to enforce the terms of this order.
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 reasonable care to limit any such designation to specific material that qualifies under the 2 appropriate standards. To the extent it is practical to do so, the Designating Party must designate 3 for protection only those parts of material, documents. items, or oral or written communications 4 that qualify - so that other portions of the material, documents, items, or communications for 5 which protection is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited.
are shown to be clearly unjustified or that have been made for an
improper purpose (e.g., to 8 unnecessarily encumber or retard the case
development process or to impose unnecessary 9 expenses and burdens on
other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party's attention that information or
items that it
designated for protection do not qualify for protection at all or
do not qualify for the level of 12 protection initially asserted, that
Designating Party must promptly notify all other parties that it is 13
withdrawing the mistaken designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for 16 protection under this Order must be clearly so designated before the material is disclosed or 17 produced. Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" to each page that contains protected material. If only a portion or 22 portions of the material on a page qualifies for protection, the Producing Party also must clearly 23 identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must 24 specify, for each portion, the level of protection being asserted.
A Party or Non-Party that makes original documents or materials
inspection need not designate them for protection until after the
inspecting Party has indicated 27 which material it would like copied
and produced. During the inspection and before the designation, all of the material made available for inspection shall
be deemed "HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY." After the inspecting Party has
identified the 3 documents it wants copied and produced, the Producing
Party must determine which documents, 4 or portions thereof, qualify
for protection under this Order. Then, before producing the specified
5 documents, the Producing Party must affix the appropriate legend to
each page that contains 6
Protected Material. If only a portion or portions of the material on a page qualifies for protection, 7 the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 8 markings in the margins) and must specify, for each portion, the level of protection being asserted. (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, 11 hearing, or other proceeding, all protected testimony and specify the level of protection being 12 asserted. Alternatively, when it is impractical to identify separately each portion of testimony that 13 is entitled to protection and it appears that substantial portions of the testimony may qualify for 14 protection, the Designating Party may, before, during or immediately after the completion of the 15 deposition, hearing, or other proceeding, designate that all the testimony given and the entire 16 transcript thereof shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL --ATTORNEYS' EYES ONLY" until 21 days after the transcript prepared and delivered to counsel. Thereafter, only those portions of the testimony and transcript that are appropriately designated for 19 protection within the 21 days following delivery of the transcript shall be covered by the 20 provisions of this Stipulated Protective Order.
Parties shall give the other parties notice if they reasonably expect
hearing or other proceeding to include Protected Material so that
the other parties can ensure that 23 only authorized individuals who
have signed the "Acknowledgment and Agreement to Be Bound" 24
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 25 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."
Transcripts containing Protected Material shall have an obvious legend
on the title
page that the transcript contains Protected Material, and the title
page shall be followed by a list of 3 all pages (including line
numbers as appropriate) that have been designated as Protected
Material 4 and the level of protection being asserted by the
Designating Party. The Designating Party shall 5 inform the court
reporter of these requirements. Any transcript that is prepared before
the 6 expiration of a 21-day period for designation shall be treated
during that period as if it had been 7 designated "HIGHLY CONFIDENTIAL
- ATTORNEYS' EYES ONLY" in its entirety unless 8 otherwise agreed.
After the expiration of that period, the transcript shall be treated
only as 9 actually designated.
(c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of 12 the container or containers in which the information or item is stored the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY". If only a 14 portion or portions of the information or item warrant protection, the Producing Party, to the extent 15 practicable, shall identify the protected portion(s) and specify the level of protection being asserted. 16
5.3 Inadvertent Failures to Designate. If timely corrected, an
to designate qualified information or items does not, standing
alone, waive the Designating Party's 18 right to secure protection
under this Order for such material. Upon timely correction of a 19
designation, the Receiving Party must make reasonable efforts to
assure that the material is treated 20 in accordance with the
provisions of this Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 22
6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at an time. Unless a prompt challenge to a Designating Party's 24 confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 25 economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its 26 right to challenge a confidentiality designation by electing not to mount a challenge promptly after 27 the original designation is disclosed. 28
6.2 Meet and Confer. The Challenging Party shall initiate the
resolution process by providing written notice of each designation
it is challenging and describing 3 the basis for each challenge. To
avoid ambiguity as to whether a challenge has been made, the 4 written
notice must recite that the challenge to confidentiality is being made
in accordance with 5 this specific paragraph of the Protective Order.
The parties shall attempt to resolve each challenge 6 in good faith
and must begin the process by conferring directly within 14 days of
the date of 7 service of notice. In conferring, the Challenging Party
must explain the basis for its belief that the 8 confidentiality
designation was not proper and must give the Designating Party an
opportunity to 9 review the designated material, to reconsider the
circumstances, and, if no change in designation is 10 offered, to
explain the basis for the chosen designation. A Challenging Party may
proceed to the 11 next stage of the challenge process only if it has
engaged in this meet and confer process first or 12 establishes that
the Designating Party is unwilling to participate in the meet and
confer process in 13 a timely manner.
6.3 Judicial Intervention. If the Parties cannot resolve a challenge without Court intervention, the Designating Party shall file and serve a motion to retain confidentiality 16 under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 17 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 18 confer process will not resolve their dispute, whichever is earlier. Each such motion must be 19 accompanied by a competent declaration affirming that the movant has complied with the meet 20 and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 21 make such a motion including the required declaration within 21 days (or 14 days, if applicable) 22 shall automatically waive the confidentiality designation for each challenged designation. In 23 addition, the Challenging Party may file a motion challenging a confidential designation at any 24 time if there is good cause for doing so, including a challenge to the designation of a deposition 25 transcript or any portions thereof. Any motion brought pursuant to this provision must be 26 accompanied by a competent declaration affirming that the movant has complied with the meet 27 and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass 3 or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party 4 to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 5 file a motion to retain confidentiality as described above, all parties shall continue to afford the 6 material in question the level of protection to which it is entitled under the Producing Party's 7 designation until the Court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL 9
7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non-Party in connection with this case only for 11 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 12 disclosed only to the categories of persons and under the conditions described in this Order. When 13 the litigation has been terminated, a Receiving Party must comply with the provisions of section below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under 17 this Order.
7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless
ordered by the Court or permitted in writing by the Designating
Party, a Receiving Party may 20 disclose any information or item
designated "CONFIDENTIAL" only to:
(a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to 23 disclose the information for this litigation and who have signed the "Acknowledgment and 24
Agreement to Be Bound" that is attached hereto as Exhibit A; 25
(b) the officers, directors, and employees (including House Counsel)
the Receiving Party to whom disclosure is reasonably necessary for
this litigation and who have 27 signed the "Acknowledgment and
Agreement to Be Bound" (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to
disclosure is reasonably necessary for this litigation and who have
signed the "Acknowledgment 3 and Agreement to Be Bound" (Exhibit A); 4
(d) the Court and its personnel;
(e) court reporters and their staff, professional jury or trial
and Professional Vendors to whom disclosure is reasonably necessary
for this litigation and who 7 have signed the "Acknowledgment and
Agreement to Be Bound" (Exhibit A); 8
(f) during their depositions, witnesses in the action to whom
is reasonably necessary and who have signed the "Acknowledgment and
Agreement to Be Bound"
(Exhibit A), unless otherwise agreed by the Designating Party or
ordered by the Court. Pages of 11 transcribed deposition testimony or
exhibits to depositions that reveal Protected Material must be 12
separately bound by the court reporter and may not be disclosed to
anyone except as permitted 13 under this Stipulated Protective Order.
(g) the author or recipient of a document containing the information
custodian or other person who otherwise possessed or knew the
7.3 Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or Items. Unless otherwise ordered by the Court or permitted in writing by 18 the Designating Party, a Receiving Party may disclose any information or item designated 19
"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" only to: 20
(a) the Receiving Party's Outside Counsel of Record in this action. as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to 22 disclose the information for this litigation and who have signed the "Acknowledgment and 23
Agreement to Be Bound" that is attached hereto as Exhibit A; 24
(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this litigation, (2) who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, 27 have been followed;
(c) the Court and its personnel;
(d) court reporters and their staff, professional jury or trial
and Professional Vendors to whom disclosure is reasonably necessary
for this litigation and who 4 have signed the "Acknowledgment and
Agreement to Be Bound" (Exhibit A);
(e) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; and
(f) the individual at the Receiving Party who has full authority
negotiate a settlement of this action and who has signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A) Information regarding the number of units of
each product accused of 10 infringement in this Action ("Accused
Instrumentalities") that have been manufactured, 11 purchased, sold,
imported, exported, or used by or for the Disclosing Party. By
Information regarding the number of units of Accused Instrumentalities
manufactured, purchased, 13 sold, imported, exported, or used by or
for the Disclosing Party, the Receiving Party shall be 14 deemed to
have agreed to use such Information solely for purposes of this action
and for no other 15 purpose.
7.4 Procedures for Approving or Objecting to Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or Items to Experts.
(a) Unless otherwise ordered by the Court or agreed to in writing by the Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any 20 information or item that has been designated "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" pursuant to paragraph 7.3(c) first must make a written request to the Designating Party that (1) identifies the general categories of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information that the Receiving Party seeks permission to disclose to the Expert, (2) 24 sets forth the full name of the Expert and the city and state of his or her primary residence, (3) 25 attaches a copy of the Expert's current resume, (4) identifies the Expert's current employer(s), (5) 26 identifies each person or entity from whom the Expert has received compensation or funding for 27 work in his or her areas of expertise or to whom the expert has provided professional services, including in connection with a litigation, at any time during the preceding five years and (6) 2 identities (by name and number of the case, filing date, and location of court) any litigation in 3 connection with which the Expert has offered expert testimony, including through a declaration, 4 report, or testimony at a deposition or trial, during the preceding five years.
(b) A Party that makes a request and provides the information
in the preceding respective paragraphs may disclose the subject
Protected Material to the 7 identified Expert unless, within 14 days
of delivering the request, the Party receives a written 8 objection
from the Designating Party. Any such objection must set forth in
detail the grounds on 9 which it is based.
(c) A Party that receives a timely written objection must meet
confer with the Designating Party (through direct voice to voice
dialogue) to try to resolve the 12 matter by agreement within seven
days of the written objection. If no agreement is reached, the
Party seeking to make the disclosure to the Expert may file a motion
as provided in Civil Local
Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable)
seeking permission from the
Court to do so. Any such motion must describe the circumstances with
specificity, set forth in 16 detail the reasons why the disclosure to
the Expert is reasonably necessary, assess the risk of harm 17 that
the disclosure would entail, and suggest any additional means that
could be used to reduce 18 that risk. In addition, any such motion
must be accompanied by a competent declaration 19 describing the
parties' efforts to resolve the matter by agreement (i.e., the extent
and the content of 20 the meet and confer discussions) and setting
forth the reasons advanced by the Designating Party 21 for its refusal
to approve the disclosure.
In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under the 24 safeguards proposed) outweighs the Receiving Party's need to disclose the Protected Material to its Expert.
7.5 "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY"
information may be disclosed to a specifically designated House
Counsel of a Party only if such
disclosure is first agreed to in writing by the Designating Party or
upon further order of the Court.
Nothing in this Order will preclude such agreement or further order. Any House Counsel allowed 3 to see such information after an agreement or order must sign the "Acknowledgment and Agreement to Be Bound" (Exhibit A) and will be bound by this Order.
8. PROSECUTION BAR
Absent written consent from the Producing Party, any individual who
access to "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" information
shall not be 8 involved in the prosecution of patents or patent
applications relating to thermoformed cushion 9 products, including
without limitation the patent asserted in this action and any patent
or 10 application claiming priority to or otherwise related to the
patent asserted in this action, before any 11 foreign or domestic
agency, including the United States Patent and Trademark Office ("the
Patent Office"). For purposes of this paragraph, "prosecution" includes
directly or indirectly drafting, 13 amending, advising, or otherwise
affecting the scope or maintenance of patent claims. To avoid 14 any
doubt, "prosecution" as used in this paragraph does not include
representing a party 15 challenging a patent before a domestic or
foreign agency (including, but not limited to, a reissue 16 protest,
ex parte reexamination or inter partes reexamination). This
Prosecution Bar shall begin 17 when access to "HIGHLY CONFIDENTIAL --
ATTORNEYS' EYES ONLY" information is first 18 received by the affected
individual and shall end two (2) years after final termination of this
9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" that Party must:
(a) promptly notify in writing the Designating Party, and shall
copy of the subpoena or court order.
(b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or 3 order is subject to this Protective Order. and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party
served with the
subpoena or court order shall not produce any information designated
in this action as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" before
a 9 determination by the Court from which the subpoena or order
issued, unless the Party has obtained 10 the Designating Party's
permission. The Designating Party shall bear the burden and expense of
11 seeking protection in that court of its confidential material and
nothing in these provisions should 12 be construed as authorizing or
encouraging a Receiving Party in this action to disobey a lawful 13
directive from another Court.
10. NON-PARTY PROTECTED MATERIALS
(a) The terms of this Order are applicable to information produced by a Non-Party in this action and designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY". Such information produced by Non-Parties in connection with 18 this litigation is protected by the remedies and relief provided by this Order. Nothing in these 19 provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party's confidential information in its possession and the Party is subject to an 22 agreement with the Non-Party not to produce the Non-Party's confidential information, then the Party shall:
1. promptly notify in writing the Requesting Party and the Non- Party that some or all of the information requested is subject to a confidentiality agreement with a Non- Party;
2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably 3 specific description of the information requested; and
3. make the information requested available for inspection by the Non-Party.
(c) If the Non-Party fails to object or seek a protective order from this Court within 14 days of receiving the notice and accompanying information, the Receiving Party 8 may produce the Non-Party's confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information 10 in its possession or control that is subject to the confidentiality agreement with the Non-Party 11 before a determination by the Court. Absent a court order to the contrary, the Non-Party shall bear 12 the burden and expense of seeking protection in this court of its Protected Material.
11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
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 Order, the Receiving Party must immediately (a) notify in writing the Designating Party 17 of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made 19 of all the terms of this Order, and (d) cause such person or persons to execute the 20
"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.
12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
If information is produced in discovery that is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that 25 received the information of the claim and the basis for it. After being notified, a party must 26 promptly return or destroy the specified information and any copies it has and may not sequester, 27 use or disclose the information until the claim is resolved. This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production 2 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 3 parties reach an agreement on the effect of disclosure of a communication or information covered 4 by the attorney-client privilege or work product protection, the parties may incorporate their 5 agreement in the stipulated protective order submitted to the Court.
13. MISCELLANEOUS 7
13.1 Right to Further Relief. Nothing in this Order abridges the
right of any
person to seek its modification by the Court in the future. 9
13.2 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 11 producing any information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of 13 the material covered by this Protective Order.
13.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file 16 in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 18 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 19 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request 20 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or 21 otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the Court, then the Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the Court.
14. FINAL DISPOSITION
Within 60 days after the Final Disposition of this action, as defined
in paragraph 4,
each Receiving Party must return all Protected Material to the
Producing Party or destroy such
Information And/Or Trade Secrets
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 5 read in its entirety and understand the Stipulated Protective Order that was issued by the Unite States District Court for the Northern District of California on _______________ in the case of Reflex Packaging, Inc., v. Stephen Gould Corporation, Case No. 5:10-cv-2909 (LHK). I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and punishment in the 10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 11 item that is subject to this Stipulated Protective Order to any person or entity except in strict 12 compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court forthe 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.
I hereby appoint _____________________ [print or type full name] of______________________ [print or type full address and telephone number] as my California 18 agent for service of process in connection with this action or any proceedings related to 19 enforcement of this Stipulated Protective Order.
City and State where sworn and signed: _______________________________________
Printed name: ___________________________
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