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Oracle America, Inc v. Innovative Technology

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


December 27, 2011

ORACLE AMERICA, INC.,
PLAINTIFF,
v.
INNOVATIVE TECHNOLOGY DISTRIBUTORS, LLC,
DEFENDANT.

The opinion of the court was delivered by: Hon. Lucy H. Koh, U.S.D.J.

STIPULATED PROTECTIVE ORDER

2 parties may be subject to discovery requests and/or proceedings that seek the disclosure of 3 information that the party or non-party to whom the request is directed considers to be 4 confidential and/or proprietary. 5 6 information through the use of a Discovery Confidentiality Order. 7

8 between counsel for Innovative Technology Distributors, LLC ("ITD"), Oracle Corporation 9 and Oracle America, Inc. (jointly, "Oracle"), subject to the approval of the Court, that the 10 following Order shall govern the handling of documents, depositions, deposition exhibits, 11 interrogatory responses, admissions and any other information or material produced, given 12 or exchanged by and among the parties and any non-parties to this litigation (including, 13 without limitation, any non-party that seeks to intervene or to object to any of the 14 proceedings in the litigation) in connection with discovery in this litigation. 17 or any other materials exchanged in connection with this action as "Confidential" or 18

"Attorneys' Eyes Only" under the terms of this Order and Fed. R. Civ. P. 26(c). 19 20 information contained therein, and other information designated as confidential, if such 21 documents or testimony contain trade secrets, proprietary business information, 22 competitively sensitive information, or any other non-public business information, the 23 disclosure of which would, in the good faith judgment of the party designating the 24 material as confidential, be detrimental to the conduct of that party's business or the 25 business of any of that party's customers or clients if the material becomes public. 26

27 and all information contained therein, and other information designated as "Attorneys' 28 WHEREAS during the course of this action, the parties and certain non-WHEREAS the parties wish to preserve the confidentiality of such

IT IS THEREFORE HEREBY STIPULATED AND AGREED, by and

A. Designated Material

1. The parties may designate documents produced, testimony given, 2. "Confidential" shall mean all documents and testimony, and all 3. "Attorneys' Eyes Only" shall mean all documents and testimony,

Eyes Only," if such documents or testimony contain highly sensitive non-public business 2 or financial information, the disclosure of which would, in the good faith judgment of the 3 party designating the material as "Attorneys' Eyes Only," cause serious and irreparable 4 harm to that party's business or the business of any of that party's customers or clients if 5 the material is disclosed to persons allowed to see Confidential material beyond the 6 persons specified in Section B.2 below. The parties currently believe that there is little, if 7 any, material that falls into this category, and therefore anticipate that this designation 8 will be used very sparingly. Information that is already publicly available may not be 9 designated as "Confidential" or "Attorneys' Eyes Only." 10

4. "Producing Party" shall mean the parties to this action and any 11 non-parties producing "Confidential" or "Attorneys' Eyes Only" information in 12 connection with depositions, document production or otherwise, or the party asserting the 13 confidentiality privilege, as the case may be. 14

5. "Receiving Party" shall mean the parties to this action and any 15 non-parties receiving "Confidential" or "Attorneys' Eyes Only" information in 16 connection with depositions, document production, or otherwise. 17

6. The Receiving Party may, at any time, notify the Producing Party 18 that the Receiving Party does not concur in the designation of a document or other 19 material as "Confidential" or "Attorneys' Eyes Only." If the Receiving Party contends 20 that any document or other material designated as "Confidential" or "Attorneys' Eyes 21

Only" is not entitled to confidential treatment, the Receiving Party shall give written 22 notice to the party who designated the material, specifically identifying the challenged 23 material. The designating party, by its counsel, shall respond in writing within 5 days of 24 receipt of the written request, or within such other period of time as may be designated by 25 order of the Court or agreement of the parties. If the designating party refuses to remove 26 the "Confidential" or "Attorneys' Eyes Only" designation, its written response shall state 27 the reasons for this refusal. If the challenge to the confidential designation is not resolved 28 after a good faith meet and confer, the party challenging the designation may move before the Court for an order declassifying those documents or materials. If no such motion is 2 filed, such documents or materials shall continue to be treated as designated by the 3

Producing Party. If such a motion is filed, the documents or other materials shall be 4 deemed as designated by the Producing Party unless and until the Court rules otherwise.

B. Access to Confidential Information

1. Except with the prior written consent of the Producing Party or by Order of the Court, "Confidential" information shall not be furnished, shown or disclosed 8 to any person or entity except to:

a. Personnel of ITD or Oracle involved in the litigation of this matter and who have been advised of their obligations hereunder;

b. Counsel of record for the parties to this action and their associated attorneys, paralegals and other professional personnel (including support staff) who are directly assisting such counsel in the preparation of this action for trial or other proceedings herein, are under the supervision or control of such counsel, and who have been advised by such counsel of their obligations hereunder, and Jeff Ross, Oracle's Managing Counsel, Debbie Miller, Oracle's Director of Litigation, and Dorian Daley, Oracle's General Counsel;

c. Expert witnesses or consultants retained by the parties or their counsel to furnish technical or expert services in connection with this action or to give testimony with respect to the subject matter of this action at the trial of this action or other proceeding herein; provided, however, that such Confidential information is furnished, shown or disclosed in accordance with Paragraph (B)(5) below; below), item (d), item (e), item (g), and item (h), unless the Producing Party consents to 28 additional disclosure or the Court orders otherwise.

d. The Court and court personnel;

e. An officer before whom a deposition is taken, including stenographic and video reporters and any necessary secretarial, clerical or other personnel of such officer;

f. Trial and deposition witnesses;

g. Any person indicated on the face of a document to be the author, addressee, or a copy recipient of the document;

h. Vendors with whom counsel of record for the parties to this litigation have contracted for purely clerical functions, such as the copying of documents;

i. Mock jurors and jury consultants who have been engaged by any party and/or a party's consultant in preparation for trial. For any jury research, an appropriate screening process must be used to assure that the jury consultant(s) and mock jurors chosen for any mock jury presentation are not current or former officers, directors, employees or consultants of any party or any direct competitors of any party. Each jury consultant and/or mock jurors must agree in writing to be bound by this Order by signing and undertaking the form of Exhibit A to this Order; and

j. Any other person agreed to by the parties.

2. Except with the prior written consent of the Producing Party or by Order of the Court, "Attorneys' Eyes Only" information shall not be furnished, shown or disclosed to any person or entity except to those persons listed above in Paragraph (B)(1) under item (b) (with the exception of Dorian Daley), item (c) (subject to Paragraph (B)(5) 2 by the Receiving Party and/or its counsel, as applicable, only for purposes of this litigation 3 and for no other purposes. 4

3. Confidential and Attorneys' Eyes Only information shall be utilized 4. With respect to any information produced by ITD on an "Attorneys' Eyes Only" basis, Jeff Ross and Debbie Miller will take all necessary steps to ensure that 6 any such Attorneys' Eyes Only documents are not available for inspection by other 7 employees within Oracle, and such Attorneys' Eyes Only documents shall not be stored on 8 an Oracle server or computer system that could be accessed by other Oracle employees. 9

10 information is made to an expert witness or consultant pursuant to Paragraph (B)(1)(c) 11 above, counsel for the Receiving Party shall obtain from the expert, the expert's written 12 agreement, in the form of Exhibit A attached hereto, to comply with and be bound by its 13 terms. Confidential or Attorneys' Eyes Only information may be provided to an expert 14 witness or consultant to the extent necessary for such expert or consultant to prepare a 15 written opinion, to prepare to testify, or to assist counsel in the prosecution or defense of 16 this litigation, provided that such expert or consultant (i) is not currently an employee of, or 17 advising or discussing employment with, or consultant to, any party to or any competitor or 18 potential transaction counterparty of any party to this litigation, as far as the expert or 19 consultant can reasonably determine, and (ii) is using said Confidential or Attorneys' Eyes 20 21

5. Before any disclosure of Confidential or Attorneys' Eyes Only Only information solely in connection with this litigation.

C. Designation Of Materials

The designation of materials as "Confidential" or "Attorneys' Eyes Only" for purposes of this Order shall be made in the following manner by any Producing Party:

1. In the case of documents or other materials (apart from depositions or other pretrial testimony), by affixing the legend "Confidential" or "Attorneys' Eyes Only" to each page containing any Confidential or Attorneys' Eyes Only information, except that in the case of multi-page documents bound together by a staple or other permanent binding, the word(s) "Confidential" or "Attorneys' Eyes Only" need only be 2 stamped on the first page of the document in order for the entire document to be treated as 3 "Confidential" or "Attorneys' Eyes Only" does not constitute a waiver of such claim, and a 5

Producing Party may so designate a document after such document has been produced, 6 with the effect that such document is thereafter subject to the protections of this Order. 7 8 statement on the record, by counsel, at the time of such disclosure; or (b) by written notice, 9 sent to all parties within 5 days after receiving a copy of the transcript thereof, and in both 10 of the foregoing instances, by directing the court reporter that the appropriate 11 confidentiality legend be affixed to the first page and all portions of the original and all 12 copies of the transcript containing any Confidential or Attorneys' Eyes Only material. 13

Unless otherwise stated on the record, all depositions and other pretrial testimony shall be 14 deemed to be "Confidential" until the expiration of the fifth day after counsel receives a 15 copy of the transcript thereof, after which time such deposition or pretrial testimony shall 16 be treated in accordance with its designation, if any. The parties may modify this 17 procedure for any particular deposition, through agreement on the record at such 18 deposition, without further order of the Court.

the right of such party to challenge the assertion of any such privilege or immunity in 28 accordance with the other procedures described in this paragraph. Confidential or Attorneys' Eyes Only; provided that the failure to designate a document as 4 2. In the case of depositions or other pretrial testimony, (a) by a

D. Inadvertent Production Of Privileged Materials

1. If information subject to a claim of attorney-client privilege, attorney work product or any other ground on which production of such information should not be made to any party is nevertheless inadvertently produced to a party or parties, Federal Rule of Evidence 502(b) and Federal Rule of Civil Procedure 26(b)(5)(B) shall apply.

2. The failure of a party at a deposition to challenge the assertion of any privilege, work-product protection or immunity over any document shall not prejudice 3 designated as Confidential or Attorneys' Eyes Only, the filing party must comply with 4

Local Rule 79-5. Prior to any dispositive motion hearings and/or trial in this matter, 5 counsel for the parties shall meet and confer to negotiate a proposal regarding the treatment 6 of Confidential or Attorneys' Eyes Only information proposed to be used at such hearing or 7 trial. Ultimately, the determination of treatment of Confidential or Attorneys' Eyes Only 8 information at such hearing or trial will be determined by the Court. 9

10 during any deposition in this action any documents or information which have been 11 designated as "Confidential" or "Attorneys' Eyes Only" under the terms hereof. Any court 12 reporter and deposition witness who is given access to Confidential or Attorneys' Eyes 13

Only information shall, prior thereto, be provided with a copy of this Order and shall 14 execute the certificate annexed hereto. Counsel for the party obtaining the certificate shall 15 supply a copy to counsel for the other party. 16

17 material by any non-party shall be subject to and governed by the terms of this Order. 18 19 agree that the Court shall retain jurisdiction over them for the purpose of enforcing this 20 21 5. Upon termination of this litigation, any appeal or the expiration of the right to appeal, all originals and copies of any Confidential or Attorneys' Eyes Only information shall either be destroyed or returned to the Producing Party.

6. Nothing in this Order shall prevent any party or other person from seeking modification of this Order or from objecting to discovery that it believes to be otherwise improper. 28

E. Other Items

1. If any party intends to file with the Court materials that have been 2. This Order shall not preclude counsel for the parties from using 3. The parties to this action agree that the production of any discovery 4. The parties and any other persons subject to the terms of this Order Order.

Dated: December 20, 2011 GCA LAW PARTNERS LLP By: /s/ Valerie M. Wagner Valerie M. Wagner Attorneys for Defendant Innovative Technology Distributors, LLC Dated: December 20, 2011 HOLMES ROBERTS & OWEN LLP By: /s/ Meryl Macklin Meryl Macklin Attorneys for Oracle America, Inc. and Oracle Corporation

ATTESTATION

I, Valerie M. Wagner, am counsel for Defendant Innovative Technology Distributors, LLC. I am the registered ECF user whose username and password are being 4 used to file this STIPULATED [PROPOSED] DISCOVERY CONFIDENTIALITY 5

ORDER. In compliance with General Order 45, Section X(B), I hereby attest that the 6 above-identified counsel concurred in this filing. 7

Dated: December 20, 2011 GCA LAW PARTNERS LLP By: /s/ Valerie M. Wagner Valerie M. Wagner Attorneys for Defendant Innovative Technology Distributors, LLC

ORDER

PURSUANT TO STIPULATION, IT IS SO ORDERED.

4 the consolidated actions titled Oracle America, Inc. v. Innovative Technology 5

Distributors, Inc., Civil Action Nos. 11-CV-01043 and 11-CV-02135 (LHK), pending in 6 the United States District Court for the Northern District of California.. I have read and 7 understand the terms of the Order. I understand that unauthorized disclosure of 8

Order and that the parties reserve the right to seek appropriate redress, including 10 sanctions, from the Court for willful violations thereof. With full knowledge of the terms 11 and requirements of the Order, I agree to be bound by its terms. I agree that I shall not 12 disclose to others, except in accordance with the Order, such information or documents, 13 and that such information or documents shall be used only for the purpose of the legal 14 proceeding in which the documents were produced. I further agree and attest to my 15 understanding that my obligation to honor the confidentiality of such information or 16 documents will continue even after the termination of this legal proceeding.

EXHIBIT A

I have been given a copy of the Discovery Confidentiality Order entered in "Confidential" or "Attorneys' Eyes Only" information will constitute a violation of the 9 I agree to subject myself to the jurisdiction of the United States District Court for the Northern District of California for the purposes of enforcement of this Order.

Dated: _______________

By: __________________________

20111227

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