The opinion of the court was delivered by: Hon. John E. McDermott U.S. Magistrate Judge
BRETT J. WILLIAMSON (S.B. #145235) firstname.lastname@example.org MICHAEL L. MYERS (S.B. #240652) email@example.com O'MELVENY & MYERS LLP 610 Newport Center Drive, 17th Floor Newport Beach, CA 92660 Telephone: (949) 760-9600 Facsimile: (949) 823-6994 WILLIAM C. NORVELL, JR. (pro hac vice) firstname.lastname@example.org SCOTT D. MARRS (pro hac vice) email@example.com BEIRNE, MAYNARD & PARSONS L.L.P. 1300 Post Oak Boulevard, Suite 2500 Houston, Texas 77056 Telephone: (713) 623-0887 Facsimile: (713) 960-1527 Attorneys for Plaintiff and Counterdefendant Richard A. Williamson, on behalf of and as Trustee for At Home Bondholders' Liquidating Trust See Signature Block For Names Of Attorneys For Defendants
NOTE CHANGES MADE BY COURT
[PROPOSED] STIPULATED PROTECTIVE
AND RELATED COUNTERCLAIMS.
STIPULATED PROTECTIVE ORDER
Plaintiff Richard A. Williamson, on behalf of and as Trustee for At Home Bondholders' Liquidating Trust ("Plaintiff") and Defendants Adobe Systems, Inc. ("Adobe"); Blackboard Inc., Wimba, Inc., and Elluminate USA, Inc.; WebEx Communications, Inc., Cisco WebEx LLC, and Cisco Systems, Inc.; Citrix Online, LLC and Citrix Systems, Inc.; DimDim, Inc. and Salesforce.com, Inc.; Fuzebox, Inc. ("Fuzebox"); International Business Machines Corporation ("IBM"); WYBS, Inc. d.b.a. MerchantCircle, Inc. ("MerchantCircle"); Microsoft Corporation ("Microsoft"); and TokBox, Inc. ("TokBox") (collectively referred to as the "Defendants") recognize that the parties and third parties may be required, pursuant to discovery, to disclose confidential, proprietary, trade secret, or private information in At Home v. Citrix Online, LLC, et al., No. CV11-02409 AHM (JEMx) and any adjunct subpoena proceedings incident hereto before any tribunal (collectively the "Litigation"). To protect against the improper use or disclosure of such information, the parties agree that good cause exists for the entry of this Protective Order pursuant to Rule 26(c), in the above-captioned action as evidenced by the signatures of respective counsel, and accordingly stipulate as follows: IT IS HEREBY ORDERED BY STIPULATION OF THE PARTIES THAT:
INFORMATION SUBJECT TO THIS ORDER
1. This Protective Order shall apply to all information, documents and things subject to discovery in this Litigation produced either by a party or a non-party in discovery including, without limitation, testimony adduced at any hearing or deposition upon oral examination or upon written questions, answers to interrogatories, documents and things produced, information obtained from inspection of premises or things, and answers to requests for admission, or information disclosed pursuant to subpoena under Fed. R. Civ. P. 45 ("Discovery Material").
2. For the purposes of this Order, "Confidential Information" shall mean proprietary information not generally known to the public that the designating party would not disclose to competitors or third parties within the ordinary course of business. Discovery Material containing Confidential Information is referred to as "Confidential Material."
3. Particular examples of Confidential Information include, without limitation, internal engineering, marketing, or financial documents, documents containing information regarded by third parties as confidential; information disclosing customer identity or customer actions, information containing engineering, marketing, or sales information not generally available to the public, information concerning competitive analysis, pending but unpublished patent applications, information concerning research, development and other activities related to unreleased products, license agreements, trade secrets (as defined in Cal. Civil Code § 3426.1), know-how, pricing data, financial data, customer-confidential information, agreements or relationships with non-parties, market projections or forecasts, strategic business plans, information about employees, and other highly confidential technical, research and development, and financial information.
4. The following is not Confidential Material: (i) material which, on its face, shows or which, through other evidence, the receiving party can show has been published to the general public; (ii) information that the receiving party can show was lawfully in the receiving party's possession prior to being designated as Confidential Material in this litigation and that the receiving party is not otherwise obligated to treat as confidential; (iii) information that the receiving party can show was obtained (without any benefit or use of Confidential Material) from a third party having the right to disclose such information to the receiving party without restriction or obligation of confidentiality; (iv) information which, after its disclosure to a receiving party, is published to the general public by a party having the right to publish such information; (v) information that the receiving party can show by written record was independently developed by it after the time of disclosure by personnel who did not have access to the producing party's Confidential Material; or (vi) information that was submitted to a governmental entity without request for confidential treatment.
DESIGNATING PROTECTED INFORMATION
5. In determining the scope of information that a party may designate as its Confidential Material, each party acknowledges the importance of client access to information necessary to client decision-making in the prosecution or defense of litigation, and therefore agrees that designations of information as Confidential Material and responses to requests to permit further disclosure of Confidential Material shall be made in good faith and not (1) to impose burden or delay on an opposing party or (2) for tactical or other advantage in litigation.
6. All designations of Confidential material shall be made in good faith. 7. The producing party shall label or mark each document and thing that it deems to be Confidential Materials with the following term:
"CONFIDENTIAL - OUTSIDE COUNSEL ONLY"
8. The parties acknowledge that a distinct level of protection is required for certain Confidential Materials as to which CONFIDENTIAL - OUTSIDE COUNSEL ONLY designation would not provide adequate protection to the interests of the designating party and whose wrongful dissemination could result in irreparable harm to the designating party. Such information may be designated as "Highly Restricted Confidential" by labeling or marking each such document or thing with one of the following terms:
"HIGHLY RESTRICTED CONFIDENTIAL"
Such designations shall be used only for source code, executable code, microcode, RTL, HDL, or other documents or electronic files used in network operations, comments for source code or network operation files, revision histories, or other material whose wrongful dissemination could result in irreparable harm to the designating party.
9. The labeling or marking of a document or tangible thing with the designation "CONFIDENTIAL - OUTSIDE COUNSEL ONLY" or "HIGHLY RESTRICTED CONFIDENTIAL" shall be made when a copy of the document or thing is provided to the receiving party by placing the legend "CONFIDENTIAL - OUTSIDE COUNSEL ONLY" or "HIGHLY RESTRICTED CONFIDENTIAL" on the face of each such document or thing.
10. Any such designation that is inadvertently omitted or mis-designated may be corrected by written notification to counsel for the receiving party, and the receiving party shall thereafter mark and treat the materials as "CONFIDENTIAL
- OUTSIDE COUNSEL ONLY" or "HIGHLY RESTRICTED CONFIDENTIAL" as appropriate, and such material shall be subject to this Protective Order as if it had been initially so designated. If, prior to receiving such notice, the receiving party has disseminated the Confidential Material to individuals not authorized to receive it hereunder, it shall make a reasonable effort to retrieve the Confidential Material or to otherwise assure that the recipient(s) properly mark the Confidential Material and maintain the confidentiality of the Confidential Material, but shall have no other responsibility or obligation with respect to the information disseminated.
11. In the case of deposition upon oral examination or written questions, such testimony shall be deemed "CONFIDENTIAL - OUTSIDE COUNSEL ONLY" until the expiration of thirty (30) days after the deposition unless otherwise designated at the time of the deposition or during the thirty (30) day period. Pages or entire transcripts of testimony given at a deposition or hearing may be designated as containing "CONFIDENTIAL - OUTSIDE COUNSEL ONLY" or "HIGHLY RESTRICTED CONFIDENTIAL" information by an appropriate statement either at the time of the giving of such testimony or by written notification within thirty
(30) days after the deposition. If the testimony is not otherwise designated at the time of the deposition or during the thirty (30) day period after the deposition, the testimony will not be deemed Confidential Material.
12. In the case of written discovery responses and the information contained therein, the responses may be designated as containing "CONFIDENTIAL - OUTSIDE COUNSEL ONLY" or "HIGHLY RESTRICTED CONFIDENTIAL" information by means of a statement at the conclusion of each response that contains such information specifying the level of designation of the Confidential Information and by placing a legend of the front page of such discovery responses stating: "CONTAINS CONFIDENTIAL INFORMATION/[the highest level of designation contained in the answers]." Any such designation that is inadvertently omitted or mis-designated may be corrected within thirty (30) days of service of such discovery responses by written notification to counsel for the receiving party, and the receiving party shall thereafter mark and treat the materials as "CONFIDENTIAL - OUTSIDE COUNSEL ONLY" or "HIGHLY RESTRICTED CONFIDENTIAL," as appropriate, and such material shall be subject to this Protective Order as if it had been initially so designated. If, prior to receiving such notice, the receiving party has disseminated the Confidential Material to individuals not authorized to receive it hereunder, it shall make a reasonable effort to retrieve the Confidential Material or to otherwise assure that the recipient(s) properly mark and maintain the confidentiality of the Confidential Material, but shall have no other responsibility or obligation with respect to the information disseminated.
13. In the case of Confidential Information not reduced to documentary or tangible form or which cannot be conveniently designated as set forth above, such information may be designated "CONFIDENTIAL - OUTSIDE COUNSEL ONLY" or "HIGHLY RESTRICTED CONFIDENTIAL" information by informing the receiving party of the designation in writing either at the time of ...