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,
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,
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
("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.
2.1 "Challenging Party": a Party or Non-Party that challenges the
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
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
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
Material in this action.
2.15 "Professional Vendors": persons or entities that provide
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
2.16 "Protected Material": any Disclosure or Discovery Material that
as "CONFIDENTIAL." "Protected Material" may also
include litigation materials, discovery
or evidence that was designated "CONFIDENTIAL" in
another action pursuant to a similar
2.17 "Receiving Party": a Party that receives Disclosure or Discovery
a Producing Party.
The protections conferred by this Stipulation and Order cover not only
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.
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
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
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
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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