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Stephan Jenkins, An Individual; Third v. Thomas Irving Mandelbaum

May 16, 2011

STEPHAN JENKINS, AN INDIVIDUAL; THIRD
EYE BLIND, INC., A CALIFORNIA CORPORATION; 3EB TOURING, INC., A CALIFORNIA
CORPORATION; AND STEPHAN JENKINS
PRODUCTIONS, INC., A CALIFORNIA
CORPORATION, (E-FILING) PLAINTIFFS,
v.
THOMAS IRVING MANDELBAUM, AN INDIVIDUAL; SELVERNE, MANDELBAUM & MINTZ, LLP, A NEW YORK LIMITED LIABILITY PARTNERSHIP; HISCOCK & BARCLAY, LLP, A NEW YORK LIMITED LIABILITY PARTNERSHIP; AND DOES 1 THROUGH 500, INCLUSIVE, DEFENDANTS. HISCOCK & BARCLAY, LLP, A NEW YORK LIMITED LIABILITY PARTNERSHIP, COUNTER-CLAIMANT,
v.
STEPHAN JENKINS, AN INDIVIDUAL; THIRD EYE BLIND, INC., A CALIFORNIA CORPORATION; 3EB TOURING, INC., A CALIFORNIA CORPORATION; AND STEPHAN JENKINS PRODUCTIONS, INC., A CALIFORNIA CORPORATION, COUNTER-DEFENDANTS.



The opinion of the court was delivered by: Hon. Judge Edward M. Chen, Presiding

SANJIT SHAH, ESQ. (admitted pro hac vice) DAVID A. NELSON, ESQ. (admitted pro hac vice)

STIPULATION RE: PROTECTIVE ORDER RE: CONFIDENTIALITY;[PROPOSED] ORDER

Subject to the approval of this Court, Plaintiffs and Counter-Defendants Stephan Jenkins; Third Eye Blind, Inc.; 3EB Touring, Inc.; and Stephan Jenkins Productions, Inc. (collectively, "Plaintiffs" or "Counter-Defendants"); Defendant Thomas

I. Mandelbaum

("Mandelbaum"); Defendant Selverne, Mandelbaum & Mintz, LLP (the "Selverne Firm"); and Defendant and Counter-Claimant Hiscock & Barclay, LLP (the "Hiscock Firm") (Mandelbaum, the Selverne Firm and the Hiscock Firm are collectively referred to as "Defendants"), by and through their undersigned counsel, hereby stipulate as follows:

1.PURPOSES AND LIMITATIONS.

Disclosures and discovery activity in this action may involve production of sensitive financial and proprietary information, personal or private information and trade secrets of a Party, which are not public, and which financial, personal private and proprietary information and trade secrets, if disclosed, would put a Party at a competitive disadvantage in the marketplace in which the Party operates its business or which would otherwise cause irreparable harm to a Party and for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted ("Confidential Information"). Accordingly, the Parties hereby stipulate to and petition this Court to enter the following "Stipulated Protective Order." The Parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection that this Order affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable standard set forth herein and applicable legal principles. The Parties further acknowledge, as set forth in Section 12.3 below, 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 party seeks permission from the court to file material under seal.

2.DEFINITIONS.

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 as defined in Paragraph 1.

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."
2.5 "Disclosure or Discovery Material": all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter, including all such items or information produced or generated by a Non-Party pursuant to a subpoena or other legal process, or that were produced pursuant to a similar protective order in another action.

2.6 "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 witness or as a consultant in this action.

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.
2.8 "Non-Party": any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.

2.9 "Insurer": any insurance company that has issued a policy of insurance that may provide coverage or a defense in this matter.

2.10 "Outside Counsel of Record": attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
2.11 "Outside Counsel For An Insurer": Attorneys who are not employees of a Party to this action but are retained to represent or advise an insurer to a Party to this action.
2.12 "Party": any party to this action, including his or its employee and as to any Party that is not a natural person -- all of its officers, directors, partners, members, shareholders and employees.
2.13 "Parties": all of the parties to this action, including his or its employees, and as to any Party that is not a natural person -- all of its officers, directors, partners, members, shareholders and employees.
2.14 "Producing Party": a Party or Non-Party that produces Disclosure or Discovery Material in this action.
2.15 "Professional Vendors": persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.
2.16 "Protected Material": any Disclosure or Discovery Material that is designated as "CONFIDENTIAL." "Protected Material" may also include litigation materials, discovery or evidence that was designated "CONFIDENTIAL" in another action pursuant to a similar protective order.
2.17 "Receiving Party": a Party that receives Disclosure or Discovery Material from a Producing Party.

3.SCOPE.

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 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 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 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, including becoming part of the public record through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party. This Stipulated Protective Order does not govern the use of Protected Material at trial, and any use of Protected Material at trial shall be governed by a separate agreement or order.

4.DURATION.

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 or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.

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 care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify, so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) may expose the Designating Party to sanctions. A Party 0 shall not designate items or information "CONFIDENTIAL" merely because he or it previously designated such items or information "CONFIDENTIAL" in other litigation. There must be an independent basis for designating items or information "CONFIDENTIAL", provided however that any depositions, documents and other discovery marked "CONFIDENTIAL" in ...

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