CHAO TAI ELECTRONICS CO., LTD, a Taiwanese corporation, Plaintiff,
LEDUP ENTERPRISE, INC., a California corporation; LOWE'S HIW, INC., a Washington Corporation; THE HOME DEPOT U.S.A., INC., a Delaware corporation; MARTHA STEWART LIVING OMNIMEDIA, INC., a Delaware corporation; and DOES 1 through 10, inclusive, Defendant. LEDUP ENTERPRISE, INC., a California corporation, Counterclaimant,
CHAO TAI ELECTRONICS CO., LTD, a Taiwanese corporation, Counterdefendant.
Sean A. O'Brien, Bar No. 133154 PAYNE & FEARS LLP.
J. Mark Smith (Admitted Pro Hac Vice) PENDLETON WILSON HENNESSEY & CROW P.C., Attorneys for Defendant LEDUP ENTERPRISE, INC.
Phillip J. Eskenazi, Esq., Jason Kim, Esq., Hunton & Williams, LLP, Attorneys for Defendant Lowe's HIW, Inc.
Gray F. Wang, Esq., Franklin Eugene Gibbs, Esq., Law Offices of Gray F. Wang, Attorneys for Plaintiff Chao Tai Electronics Co., LTD.
STIPULATION AND ORDER REGARDING THE EXCHANGE OF CONFIDENTIAL MATERIALS JURY TRIAL DEMANDED
MANUEL L. REAL, District Judge.
WHEREAS, the Parties to the above-captioned action ("this Action") or third parties may, in the course of the litigation of this Action be asked or required to have possession of each other's trade secrets and other confidential or sensitive commercial, research, technical, manufacturing, marketing, or business information or other confidential information within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure; and
WHEREAS, good cause exists for the issuance of this Order Regarding the Exchange of Confidential Material ("Protective Order") and such issuance would be in the furtherance of justice because, among other things: (i) the issuance of this Protective Order will allow for efficiency in the discovery process; (ii) discovery obtained in the Action may involve disclosure of nonpublic, confidential, proprietary, commercially sensitive and/or trade secret or otherwise privileged information, including but not limited to the structure, design and operation of Parties' products, Parties' relations with their authorized dealers, Parties' business plans, models, marketing analyses, sales and financial statements; (iii) disclosure of this information to persons who are not entitled to such information carries the danger of compromising the competitive business interests of the Parties, who in turn, compete directly with one another in the same line(s) of business; and (iv) discovery obtained in the Action also may involve disclosure of documents containing private information, including financial information and social security numbers, of individual persons, including both parties and non-parties, the disclosure of which may invade their legitimate personal privacy interests; and
WHEREAS, the parties have, through counsel, stipulated to entry of this Protective Order pursuant to Federal Rule of Civil Procedure 26(c) to prevent unnecessary disclosure or dissemination of such confidential information; and
WHEREAS, the Court having considered this matter upon a noticed Motion for Protective Order pursuant Rule 26(c) of the Federal Rules of Civil Procedure, and having considered the papers submitted by the parties in support thereof and having given interested parties a reasonable opportunity to object;
NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and among the parties, by and through their respective attorneys of record in this Action, that the terms and conditions of this Protective Order shall govern (a) initial and supplemental disclosures, (b) the production, inspection, and handling of documents, materials, and things, (c) answers to interrogatories, (d) responses to requests for admission, (e) depositions, (f) pleadings, declarations or affidavits, and exhibits, and (g) other information exchanged by the parties, or received from third parties in this Action.
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED as follows:
1. PURPOSES AND LIMITATIONS
(a) This Order shall govern the production, use, and disclosure of confidential documents and information produced, used, or disclosed in connection with this Action, and designated in accordance with this Protective Order.
(b) Disclosure of Protected Material (as defined below) is prohibited, except as expressly provided in this Protective Order.
(c) The Parties (as defined below) acknowledge that designations under this Protective Order shall be made with care and with the good faith belief that the designated material satisfies the criteria set forth below. If a Producing Party discovers that designated material does not qualify for the level of protection initially asserted, it must promptly notify any Receiving Party (defined below) that it is withdrawing or changing the designation.
(d) A Party may designate information or documents produced, used or disclosed as "CONFIDENTIAL" and subject to the protections and requirements of this Protective Order, if so designated in writing to the other Parties, or orally, if recorded as part of a deposition or court proceeding, pursuant to the terms of this Protective Order.
(e) The Parties acknowledge that this Protective Order does not confer blanket protection on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principals.
(f) The Parties further acknowledge, as set forth in Section 11 below, that this Protective Order does not entitle them to file confidential information under seal, and the standards set forth in the Local Rules will be applied when a party seeks permission from the court to file material under seal.
(a) Challenging Party means a Party that challenges the designation of information or items under this Order.
(b) Designating Party means a Party, Non-Party, or Third Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL."
(c) Discovery Material means all items or information, including from a third party, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in connection with discovery or Federal Rule of Civil Procedure 26(a) in this Action.
(d) In-House Counsel means an attorney who is licensed in any state of the United States and who is an employee of a Party.
(e) Non-Party or Third Party means any natural person, partnership, corporation, association, or other legal entity not named as a Party to this Action. A third party producing information or material voluntarily or pursuant to a subpoena or a court order may designate such material or information in the same manner and shall receive the same level or protection under this Protective Order as any Party to this Action. A third party's use of this Protective Order to protect its Protected Material does not entitle that third party to gain access to Protected Material produced by any Party or other third party in this Action.
(f) Outside Counsel means attorneys licensed in any state of the United States 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, as an attorney licensed in any state of the United States, with a law firm which has appeared on behalf of that party.
(g) Party means any party to this Action, including its officers, directors, employees, consultants, retained experts, and Outside Counsel and their support staff.
(h) "Patent-in-Suit" means any patent asserted in this Action, including U.S. Patent No. 7, 301, 287, and any U.S. patents, reissues, reexaminations, post-grant reviews, or patent applications (including provisionals, continuations, continuations-in-part, divisionals, or international counterparts) providing priority for or claiming priority (in whole or in part) to or through U.S. Patent No. 7, 301, 287 or any other patent asserted in this Action.
(i) Producing Party means any Party that discloses or produces Discovery Material in this Action.
(j) Protected Material means any Discovery Material that is designated as "CONFIDENTIAL" as provided in this Protective Order. Protected Material shall not include: (1) materials that have been published to the general public or are otherwise in the public domain; (2) information that after disclosure to a Receiving Party becomes part of the public domain as a result of publication not involving a violation of this Protective Order or any violation of law; (3) information that a Receiving Party can show was received by it, whether before or after the disclosure, from a source that obtained the information lawfully and under no obligation of confidentiality; (4) information that a Receiving Party can show was independently developed by it after the time of disclosure by personnel who have not had access to the information designated by a Producing Party under this Protective Order; or (5) documents or testimony for which confidentiality was waived by the Producing Party's purposeful use in open court or any non-confidential filing in connection with the appeal of the judgment rendered in this Action.
(k) Receiving Party means any Party that receives Discovery Material from a Producing Party.
(a) The protection conferred by this Protective Order covers not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, notes, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel in court or other settings that might reveal Protected Material. However, the scope of this Protective Order is specifically limited to any of the above-described information that is produced or adduced (e.g., deposition testimony) during discovery in this litigation.
(b) Nothing in this Protective Order restricts a Producing Party's disclosure or use of its own Protected Material for any purpose, and nothing in this Protective Order precludes any Party from disclosing Protected Material to the individual who prepared or previously received the Protected Material. Nothing in this Protective Order shall be construed to prejudice any Party's right to use any Protected Material in court and in any court filing with the consent of the Producing Party or by order of the Court, and in accordance with the terms herein.
(c) This Protective Order is without prejudice to the right of any Party to seek additional protection for any Discovery Material or to modify this Protective Order in any way, including, without limitation, seeking ...