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Nissim Corp v. Time Warner Inc.

April 9, 2012

NISSIM CORP., PLAINTIFF,
v.
TIME WARNER INC., ET AL., DEFENDANTS.



PROTECTIVE ORDER ENTERED PURSUANT TO THE PARTIES' STIPULATION

Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure and based on the parties' Stipulated Protective Order ("Stipulation") filed on March 20, 2012, the terms of the protective order to which the parties have agreed are adopted as a protective order of this Court (which generally shall govern the pretrial phase of this action) except to the extent, as set forth below, that those terms have been substantively modified by the Court's amendment of paragraphs 2(e)-(h), 3, 5(a), 6, and 12 of the Stipulation.

The parties are expressly cautioned that the designation of any information, document, or thing as CONFIDENTIAL, HIGHLY CONFIDENTIAL, or other designation(s) used by the parties, does not, in and of itself, create any entitlement to file such information, document, or thing, in whole or in part, under seal. Accordingly, reference to this Protective Order or to the parties' designation of any information, document, or thing as CONFIDENTIAL, HIGHLY CONFIDENTIAL, or other designation(s) used by the parties, is wholly insufficient to warrant a filing under seal.

There is a strong presumption that the public has a right of access to judicial proceedings and records in civil cases. In connection with non-dispositive motions, good cause must be shown to support a filing under seal. The parties' mere designation of any information, document, or thing as CONFIDENTIAL, HIGHLY CONFIDENTIAL, or other designation(s) used by parties,does not -- without the submission of competent evidence, in the form of a declaration or declarations, establishing that the material sought to be filed under seal qualifies as confidential, privileged, or otherwise protectable -- constitute good cause.

Further, if sealing is requested in connection with a dispositive motion or trial, then compelling reasons, as opposed to good cause, for the sealing must be shown, and the relief sought shall be narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific Creditors Ass'n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item or type of information, document, or thing sought to be filed or introduced under seal in connection with a dispositive motion or trial, the party seeking protection must articulate compelling reasons, supported by specific facts and legal justification, for the requested sealing order. Again, competent evidence supporting the application to file documents under seal must be provided by declaration.

Any document that is not confidential, privileged, or otherwise protectable in its entirety will not be filed under seal if the confidential portions can be redacted. If documents can be redacted, then a redacted version for public viewing, omitting only the confidential, privileged, or otherwise protectable portions of the document, shall be filed. Any application that seeks to file documents under seal in their entirety should include an explanation of why redaction is not feasible.

Notwithstanding any other provision of this Protective Order, in the event that this case proceeds to trial, all information, documents, and things discussed or introduced into evidence at trial will become public and available to all members of the public, including the press, unless sufficient cause is shown in advance of trial to proceed otherwise.

THE PARTIES ARE DIRECTED TO REVIEW CAREFULLY AND ACT IN COMPLIANCE WITH ALL ORDERS ISSUED BY THE HONORABLE GARY A. FEESS, UNITED STATES DISTRICT JUDGE, INCLUDING THOSE APPLICABLE TO PROTECTIVE ORDERS AND FILINGS UNDER SEAL.

TERMS OF PROTECTIVE ORDER

1. Designated Material. Any information or documents provided or produced, formally or informally, in response to or in connection with a discovery request or deposition in this action, and any material filed with the Court may be designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" by the person or entity producing or filing it (the "Designating Party"), so long as the information so designated complies with the definitions in this section (hereinafter "Designated Material").

"CONFIDENTIAL" material is defined as: 1) confidential and/or proprietary technical information, such as non-public documents and correspondence describing or relating to defendants' design, authoring, and distribution of DVDs and HD DVDs; 2) confidential and/or proprietary financial information, such as non-public invoices, contracts, rate cards, patent license agreements, patent settlements, replication agreements, pricing terms, correspondence, and other materials exchanged between defendants and third parties or vendors (such as authoring houses, QC vendors, and disc replicators), and non-public financial and accounting documents; 3) confidential and/or proprietary strategic information, such as non-public documents that relate to defendants' business operations, strategies, practices, or plans, and marketing efforts or strategies; 4) confidential third party information, such as non-public documents that implicate rights of third parties (e.g., agreements with confidentiality provisions and documents concerning meetings with third parties) and documents received by or provided to defendants with the expectation they would remain confidential; 5) legal advice (to the extent defendants waive privilege and elect to rely on opinions of counsel); and/or 6) any other type of information which would

(a) competitively damage the producing party if such information was made publicly available and that (b) qualifies as trade secret information within the meaning of California Civil Code § 3426.1. "CONFIDENTIAL" material also includes non-public personal or private information, including without limitation personnel records. "CONFIDENTIAL" information also includes all video and audio copies of any deposition designated as "CONFIDENTIAL."

"HIGHLY CONFIDENTIAL" material is defined as certain types of confidential information that are so highly sensitive to the Designating Party that its disclosure to an employee of the receiving party would reveal significant business or financial advantages of the Designating Party. "HIGHLY CONFIDENTIAL" material is limited to highly sensitive information within the following categories:

(1) current business/strategic plans; (2) current or projected financial information including revenues, costs, expenditures, compensation, and profits; (3) current or projected non-public marketing information including future marketing plans; and

(4) current or projected detailed sales and financial data. HIGHLY CONFIDENTIAL material also includes all video and audio copies of any deposition designated as HIGHLY CONFIDENTIAL.

2. Access. Designated Material shall not be used or disclosed for any purposes other than the litigation of this action and may be disclosed only as follows:

a. Material designated CONFIDENTIAL may be disclosed to:

(1) outside counsel of record for the parties to this action, their legal associates and office staffs, and independent contractors employed for the purposes of handling and reproducing documents, and taking or recording testimony; (2) the Court and any person employed by the Court whose duties require access to such material, including court reporters and their staff; and (3) those individuals to whom Designated Materials may be disclosed under the terms of paragraphs 2(c) and 2(e) below. Any CONFIDENTIAL material disclosed to such individuals may be used by such individuals solely for the purpose of this litigation.

b. Material designated HIGHLY CONFIDENTIAL may be disclosed only to: (1) outside counsel of record for the parties to this action, their legal associates and office staffs, and independent contractors employed for the purposes of handling and reproducing documents, and taking or recording testimony; (2) the Court and any person employed by the Court whose duties require access to such material, including court reporters and their staff; and (3) Independent Experts pursuant to paragraph 2(e) below.

c. Each party may designate up to three employees or in-house attorneys to whom disclosure of documents designated as CONFIDENTIAL may be made. The designated employees or in-house attorneys are required to maintain the confidentiality and integrity of any information disclosed by documents designated as CONFIDENTIAL, and material disclosed to such individuals under this provision may be used by such individuals solely for the purpose of this litigation. Prior to the time any employee or in-house attorney of a party receives or reviews any Designated Material, he or she must execute a copy of Attachment A hereto.

d. Independent Experts as defined below may have access to and make use of, for purposes of this litigation only, Designated Material coming under the terms of this Protective Order, subject to the provisions of this section. Prior to any Independent Expert, or assistant thereto, receiving or reviewing any Designated Material, he or she must execute a copy of Attachment A hereto.

Designated Material may be made available to Independent Experts, and their assistants, no sooner than five (5) business days after the following information is served upon the party whose Designated Material will be made available to the Independent Expert:

* the identity of that Independent Expert and each of his/her associates to whom Designated Material will be disclosed, including name, address, education, present employment (including on-going ...


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