Free Motion for Protective Order - District Court of California - California

Case 5:07-cv-04507-JF

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1 ROBERT J. YORIO (SBN 93178) [email protected] 2 COLBY B. SPRINGER (SBN 214868) [email protected] 3 CHRISTINE S. WATSON (SBN 218006) [email protected] 4 CARR & FERRELL LLP 2200 Geng Road 5 Palo Alto, California 94303 Telephone: (650) 812-3400 6 Facsimile: (650) 812-3444 7 Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC 8 9 10 11 12 13 ACTICON TECHNOLOGIES LLC, 14 15 v. STIPULATED PROTECTIVE ORDER Plaintiff, CASE NO. C 07-4507 JF (HRL) UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

16 PRETEC ELECTRONICS CORPORATION, a dissolved California corporation; PTI 17 GLOBAL, INC., a California corporation; CHIU FENG CHEN, an individual; GORDON 18 YU, an individual; TOMMY HO, an individual; ROBERT WU, an individual; GRACE YU, an 19 individual; KUEI LU, an individual; and DOES 1 through 20, 20 Defendants. 21 22 23 1. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of

24 confidential, proprietary, or private information for which special protection from public disclosure 25 and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, 26 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 27 Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures 28 or responses to discovery and that the protection it affords extends only to the limited information or
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1 items that are entitled under the applicable legal principles to treatment as confidential. The parties 2 further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates 3 no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the 4 procedures that must be followed and reflects the standards that will be applied when a party seeks 5 permission from the court to file material under seal. 6 7 2. DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors,

8 employees, consultants, retained experts, and outside counsel (and their support staff). 9 2.2 Disclosure or Discovery Material: all items or information, regardless of the

10 medium or manner generated, stored, or maintained (including, among other things, testimony, 11 transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery 12 in this matter. 13 2.3 "Confidential" Information or Items: information (regardless of how

14 generated, stored or maintained) or tangible things that qualify for protection under standards 15 developed under F.R.Civ.P. 26(c). 16 2.4 "Highly Confidential ­ Attorneys' Eyes Only" Information or Items:

17 extremely sensitive "Confidential Information or Items" whose disclosure to another Party or 18 nonparty would create a substantial risk of serious injury that could not be avoided by less restrictive 19 means. 20 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from

21 a Producing Party. 22 2.6 Producing Party: a Party or non-party that produces Disclosure or Discovery

23 Material in this action. 24 2.7 Designating Party: a Party or non-party that designates information or items

25 that it produces in disclosures or in responses to discovery as "Confidential" or "Highly Confidential 26 -- Attorneys' Eyes Only." 27 2.8 Protected Material: any Disclosure or Discovery Material that is designated as

28 "Confidential" or as "Highly Confidential ­ Attorneys' Eyes Only."
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1

2.9

Outside Counsel: attorneys who are not employees of a Party but who are

2 retained to represent or advise a Party in this action. 3 4 2.10 2.11 House Counsel: attorneys who are employees of a Party. Counsel (without qualifier): Outside Counsel and House Counsel (as well as

5 their support staffs). 6 2.12 Expert: a person with specialized knowledge or experience in a matter

7 pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness 8 or as a consultant in this action and who is not a past or a current employee of a Party or of a 9 competitor of a Party's and who, at the time of retention, is not anticipated to become an employee of 10 a Party or a competitor of a Party's. This definition includes a professional jury or trial consultant 11 retained in connection with this litigation. 12 2.13 Professional Vendors: persons or entities that provide litigation support

13 services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; 14 organizing, storing, retrieving data in any form or medium; etc.) and their employees and 15 subcontractors. 16 17 3. SCOPE

The protections conferred by this Stipulation and Order cover not only Protected Material (as

18 defined above), but also any information copied or extracted therefrom, as well as all copies, 19 excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by 20 parties or counsel to or in court or in other settings that might reveal Protected Material. 21 22 4. DURATION

Even after the termination of this litigation, the confidentiality obligations imposed by this

23 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 24 otherwise directs. 25 26 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each

27 Party or non-party that designates information or items for protection under this Order must take care 28 to limit any such designation to specific material that qualifies under the appropriate standards. A
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1 Designating Party must take care to designate for protection only those parts of material, documents, 2 items, or oral or written communications that qualify ­ so that other portions of the material, 3 documents, items, or communications for which protection is not warranted are not swept 4 unjustifiably within the ambit of this Order. 5 Mass, indiscriminate, or routinized designations are prohibited. Designations that are

6 shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to 7 unnecessarily encumber or retard the case development process, or to impose unnecessary expenses 8 and burdens on other parties), expose the Designating Party to sanctions. 9 If it comes to a Party's or a non-party's attention that information or items that it

10 designated for protection do not qualify for protection at all, or do not qualify for the level of 11 protection initially asserted, that Party or non-party must promptly notify all other parties that it is 12 withdrawing the mistaken designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided in this

14 Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, 15 material that qualifies for protection under this Order must be clearly so designated before the 16 material is disclosed or produced. 17 18 Designation in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of

19 depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 20 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY" at the top of 21 each page that contains protected material. If only a portion or portions of the material on a page 22 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., 23 by making appropriate markings in the margins) and must specify, for each portion, the level of 24 protection being asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ­ 25 ATTORNEYS' EYES ONLY"). 26 A Party or non-party that makes original documents or materials available for inspection need

27 not designate them for protection until after the inspecting Party has indicated which material it 28 would like copied and produced. During the inspection and before the designation, all of the material
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1 made available for inspection shall be deemed "HIGHLY CONFIDENTIAL ­ ATTORNEYS' 2 EYES ONLY." After the inspecting Party has identified the documents it wants copied and 3 produced, the Producing Party must determine which documents, or portions thereof, qualify for 4 protection under this Order, then, before producing the specified documents, the Producing Party 5 must affix the appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ­ 6 ATTORNEYS' EYES ONLY") at the top of each page that contains Protected Material. If only a 7 portion or portions of the material on a page qualifies for protection, the Producing Party also must 8 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and 9 must specify, for each portion, the level of protection being asserted (either "CONFIDENTIAL" or 10 "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY"). 11 (b) for testimony given in deposition or in other pretrial or trial

12 proceedings, that the Party or non-party offering or sponsoring the testimony identify on the record, 13 before the close of the deposition, hearing, or other proceeding, all protected testimony, and further 14 specify any portions of the testimony that qualify as "HIGHLY CONFIDENTIAL ­ ATTORNEYS' 15 EYES ONLY." When it is impractical to identify separately each portion of testimony that is entitled 16 to protection, and when it appears that substantial portions of the testimony may qualify for 17 protection, the Party or non-party that sponsors, offers, or gives the testimony may invoke on the 18 record (before the deposition or proceeding is concluded) a right to have up to 20 days to identify the 19 specific portions of the testimony as to which protection is sought and to specify the level of 20 protection being asserted ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL ­ ATTORNEYS' 21 EYES ONLY"). Only those portions of the testimony that are appropriately designated for 22 protection within the 20 days shall be covered by the provisions of this Stipulated Protective Order. 23 Transcript pages containing Protected Material must be separately bound by the court

24 reporter, who must affix to the top of each such page the legend "CONFIDENTIAL" or "HIGHLY 25 CONFIDENTIAL ­ ATTORNEYS' EYES ONLY," as instructed by the Party or nonparty offering 26 or sponsoring the witness or presenting the testimony. 27 (c) for information produced in some form other than documentary, and

28 for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the
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1 container or containers in which the information or item is stored the legend "CONFIDENTIAL" or 2 "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY." If only portions of the information 3 or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected 4 portions, specifying whether they qualify as "Confidential" or as "Highly Confidential ­ Attorneys' 5 Eyes Only." 6 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

7 designate qualified information or items as "Confidential" or "Highly Confidential ­ Attorneys' Eyes 8 Only" does not, standing alone, waive the Designating Party's right to secure protection under this 9 Order for such material. If material is appropriately designated as "Confidential" or "Highly 10 Confidential ­ Attorneys' Eyes Only" after the material was initially produced, the Receiving Party, 11 on timely notification of the designation, must make reasonable efforts to assure that the material is 12 treated in accordance with the provisions of this Order. 13 14 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party's

15 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 16 economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive 17 its right to challenge a confidentiality designation by electing not to mount a challenge promptly after 18 the original designation is disclosed. 19 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating

20 Party's confidentiality designation must do so in good faith and must begin the process by conferring 21 directly (in voice to voice dialogue; other forms of communication are not sufficient) with counsel 22 for the Designating Party. In conferring, the challenging Party must explain the basis for its belief 23 that the confidentiality designation was not proper and must give the Designating Party an 24 opportunity to review the designated material, to reconsider the circumstances, and, if no change in 25 designation is offered, to explain the basis for the chosen designation. A challenging Party may 26 proceed to the next stage of the challenge process only if it has engaged in this meet and confer 27 process first. 28
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1 confidentiality designation after considering the justification offered by the Designating Party may 2 file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 3 applicable) that identifies the challenged material and sets forth in detail the basis for the challenge. 4 Each such motion must be accompanied by a competent declaration that affirms that the movant has 5 complied with the meet and confer requirements imposed in the preceding paragraph and that sets 6 forth with specificity the justification for the confidentiality designation that was given by the 7 Designating Party in the meet and confer dialogue. 8 The burden of persuasion in any such challenge proceeding shall be on the Designating Party.

9 Until the court rules on the challenge, all parties shall continue to afford the material in question the 10 level of protection to which it is entitled under the Producing Party's designation. 11 12 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is

13 disclosed or produced by another Party or by a non-party in connection with this case only for 14 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 15 disclosed only to the categories of persons and under the conditions described in this Order. When 16 the litigation has been terminated, a Receiving Party must comply with the provisions of section 11, 17 below (FINAL DISPOSITION). 18 Protected Material must be stored and maintained by a Receiving Party at a location

19 and in a secure manner that ensures that access is limited to the persons authorized under this Order. 20 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise

21 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose 22 any information or item designated CONFIDENTIAL only to: 23 (a) the Receiving Party's Outside Counsel of record in this action, as well

24 as employees of said Counsel to whom it is reasonably necessary to disclose the information for this 25 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 26 hereto as Exhibit A; 27 (b) the officers, directors, and employees (including House Counsel) of

28 the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
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1 signed the "Agreement to Be Bound by Protective Order" (Exhibit A); 2 (c) experts (as defined in this Order) of the Receiving Party to whom

3 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be 4 Bound by Protective Order" (Exhibit A); 5 6 (d) (e) the Court and its personnel; court reporters, their staffs, and professional vendors to whom

7 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be 8 Bound by Protective Order" (Exhibit A); 9 (f) during their depositions, witnesses in the action to whom disclosure is

10 reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" 11 (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected 12 Material must be separately bound by the court reporter and may not be disclosed to anyone except 13 as permitted under this Stipulated Protective Order. 14 15 7.3 (g) the author of the document or the original source of the information.

Disclosure of "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY"

16 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 17 Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY 18 CONFIDENTIAL ­ ATTORNEYS' EYES ONLY" only to: 19 (a) the Receiving Party's Outside Counsel of record in this action, as well

20 as employees of said Counsel to whom it is reasonably necessary to disclose the information for this 21 litigation and who have signed the "Agreement to Be Bound by Protective Order" that is attached 22 hereto as Exhibit A; 23 (b) Experts (as defined in this Order) (1) to whom disclosure is reasonably

24 necessary for this litigation, (2) who have signed the "Agreement to Be Bound by Protective Order" 25 (Exhibit A); 26 27 (c) (d) the Court and its personnel; court reporters, their staffs, and professional vendors to whom

28 disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be
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1 Bound by Protective Order" (Exhibit A); and 2 3 8. (e) the author of the document or the original source of the information.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

4 OTHER LITIGATION. 5 If a Receiving Party is served with a subpoena or an order issued in other litigation that would

6 compel disclosure of any information or items designated in this action as "CONFIDENTIAL" or 7 "HIGHLY CONFIDENTIAL ­ ATTORNEYS' EYES ONLY," the Receiving Party must so notify 8 the Designating Party, in writing (by fax, if possible) immediately and in no event more than three 9 court days after receiving the subpoena or order. Such notification must include a copy of the 10 subpoena or court order. 11 The Receiving Party also must immediately inform in writing the Party who caused the

12 subpoena or order to issue in the other litigation that some or all the material covered by the 13 subpoena or order is the subject of this Protective Order. In addition, the Receiving Party must 14 deliver a copy of this Stipulated Protective Order promptly to the Party in the other action that caused 15 the subpoena or order to issue. 16 The purpose of imposing these duties is to alert the interested parties to the existence of this

17 Protective Order and to afford the Designating Party in this case an opportunity to try to protect its 18 confidentiality interests in the court from which the subpoena or order issued. The Designating Party 19 shall bear the burdens and the expenses of seeking protection in that court of its confidential material 20 ­ and nothing in these provisions should be construed as authorizing or encouraging a Receiving 21 Party in this action to disobey a lawful directive from another court. 22 23 9. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

24 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 25 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 26 disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the 27 person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) 28 request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that
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1 is attached hereto as Exhibit A. 2 3 10. FILING PROTECTED MATERIAL

Without written permission from the Designating Party or a court order secured after

4 appropriate notice to all interested persons, a Party may not file in the public record in this action any 5 Protected Material. A Party that seeks to file under seal any Protected Material must comply with 6 Civil Local Rule 79-5. 7 8 11. FINAL DISPOSITION

Unless otherwise ordered or agreed in writing by the Producing Party, within sixty days after

9 the final termination of this action, each Receiving Party must return all Protected Material to the 10 Producing Party. As used in this subdivision, "all Protected Material" includes all copies, abstracts, 11 compilations, summaries or any other form of reproducing or capturing any of the Protected Material. 12 With permission in writing from the Designating Party, the Receiving Party may destroy some or all 13 of the Protected Material instead of returning it. Whether the Protected Material is returned or 14 destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not 15 the same person or entity, to the Designating Party) by the sixty day deadline that identifies (by 16 category, where appropriate) all the Protected Material that was returned or destroyed and that 17 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or 18 other forms of reproducing or capturing any of the Protected Material. Notwithstanding this 19 provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, 20 legal memoranda, correspondence or attorney work product, even if such materials contain Protected 21 Material. Any such archival copies that contain or constitute Protected Material remain subject to this 22 Protective Order as set forth in Section 4 (DURATION), above. 23 24 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person

25 to seek its modification by the Court in the future. 26 12.2 Right to Assert Other Objections. By stipulating to the entry of this

27 Protective Order no Party waives any right it otherwise would have to object to disclosing or 28 producing any information or item on any ground not addressed in this Stipulated Protective Order.
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1 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 2 material covered by this Protective Order. 3 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 4 5 5 Dated: May ____, 2008 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 PURSUANT TO STIPULATION, IT IS SO ORDERED. 25 26 27 Dated: May ____, 2008 28
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CARR & FERRELL LLP
/s/ Christine S. Watson ROBERT J. YORIO COLBY B. SPRINGER CHRISTINE S. WATSON Attorneys for Plaintiff ACTICON TECHNOLOGIES LLC

By:

7 Dated: May ____, 2008

LAW OFFICES OF RICHARD C. J. WAHNG

By:

/s/ Richard C. J. Wahng RICHARD C. J. WAHNG Attorneys for Defendants CHIU FENG CHEN, GORDON YU, TOMMY HO, ROBERT WU, GRACE YU and KUEI LU

7 Dated: May ____, 2008

LAW OFFICES OF E & SASSEEN

By:

/s/ David Sasseen DAVID SASSEEN Attorneys for Defendant PTI GLOBAL, INC.

HON. HOWARD R. LLOYD United States Magistrate Judge -11Stipulated Protective Order C 07-4507 JF (HRL)

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1 2 3

EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of _________________

4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on [date] in the case of ACTICON TECHNOLOGIES LLC v. 7 PRETEC ELECTRONICS CORPORATION, ET AL. (Case No. C 07-0457 JF). I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I understand 9 and acknowledge that failure to so comply could expose me to sanctions and punishment in the 10 nature of contempt. I solemnly promise that I will not disclose in any manner any information or 11 item that is subject to this Stipulated Protective Order to any person or entity except in strict 12 compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the

14 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 15 Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of

17 _______________________________________ [print or type full address and telephone number] 18 as my California agent for service of process in connection with this action or any proceedings 19 related to enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: ______________________________ [printed name] 24 25 26 27 28
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Signature: __________________________________ [signature]

-Exhibit AStipulated Protective Order C 07-4507 JF (HRL)