even stipulated protective orders 23 require good cause showing
How later courts described this case
- even stipulated protective orders 23 require good cause showing
Written by the judges who cited it.
The opinion
1 BURSOR & FISHER, P.A. COVINGTON & BURLING LLP
2 L. Timothy Fisher (SBN 191626) Emily Johnson Henn (SBN 269482)
Joel D. Smith (SBN 244902)
ehenn@cov.com
3 1990 North California Blvd., Suite 940
3000 El Camino Real
Walnut Creek, CA 94596
4 Telephone: (925) 300-4455 5 Palo Alto Square, 10th Floor
Facsimile: (925) 407-2700 Palo Alto, CA 94306-2112
5
E-mail: ltfisher@bursor.com Telephone: + 1 (650) 632-4700
6 jsmith@bursor.com Facsimile: + 1 (650) 632-4800
7 Attorneys for Plaintiff
COVINGTON & BURLING LLP
8 Simon J. Frankel (SBN 171552)
9 sfrankel@cov.com
Matthew Q. Verdin (SBN 306713)
10 mverdin@cov.com
Jenna L. Zhang (SBN 336105)
11 jzhang@cov.com
12 Salesforce Tower
415 Mission Street, Suite 5400
13
San Francisco, CA 94105-2533
14 Telephone: + 1 (415) 591-6000
Facsimile: + 1 (415) 591-6091
15
16 Attorneys for Defendants
Nike, Inc. and FullStory, Inc.
17
UNITED STATES DISTRICT COURT
18
CENTRAL DISTRICT OF CALIFORNIA
19
BURHAAN SALEH, individually and
20 on behalf of all others similarly Case No. 2:20-cv-09581-FLA-RAO
situated,
21
STIPULATED PROTECTIVE
22 Plaintiff, ORDER1
v.
23
NIKE, INC. and FULLSTORY, INC.,
24
Defendants.
25
26
27 1 This Stipulated Protective Order is substantially based on the model protective
order provided under Magistrate Judge Rozella A. Oliver’s Procedures with
1
1. A. PURPOSES AND LIMITATIONS
2
Discovery in this action is likely to involve production of confidential,
3
proprietary or private information for which special protection from public
4
disclosure and from use for any purpose other than prosecuting this litigation may
5
be warranted. Accordingly, the parties hereby stipulate to and petition the Court to
6
enter the following Stipulated Protective Order. The parties acknowledge that this
7
Order does not confer blanket protections on all disclosures or responses to
8
discovery and that the protection it affords from public disclosure and use extends
9
only to the limited information or items that are entitled to confidential treatment
10
under the applicable legal principles.
11
12
B. GOOD CAUSE STATEMENT
13
This action is likely to involve trade secrets, customer lists and other valuable
14
research, development, commercial, financial, technical and/or proprietary
15
information for which special protection from public disclosure and from use for
16
any purpose other than prosecution of this action is warranted. Such confidential
17
and proprietary materials and information may consist of, among other things,
18
Defendant’s Nike’s confidential customer records, Defendant FullStory’s propriety
19
and confidential source code and business practices, confidential business or
20
financial information for both Defendants, other confidential commercial
21
information (including information implicating privacy rights of putative Class
22
members and third parties), information otherwise generally unavailable to the
23
public, or which may be privileged or otherwise protected from disclosure under
24
state or federal statutes, court rules, case decisions, or common law. Accordingly, to
25
expedite the flow of information, to facilitate the prompt resolution of disputes over
26
27
1 confidentiality of discovery materials, to adequately protect information the parties
2 are entitled to keep confidential, to ensure that the parties are permitted reasonable
3 necessary uses of such material in preparation for and in the conduct of trial, to
4 address their handling at the end of the litigation, and serve the ends of justice, a
5 protective order for such information is justified in this matter. It is the intent of the
6 parties that information will not be designated as confidential for tactical reasons
7 and that nothing be so designated without a good faith belief that it has been
8 maintained in a confidential, non-public manner, and there is good cause why it
9 should not be part of the public record of this case.
10
11 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
12 The parties further acknowledge, as set forth in Section 13.3, below, that this
13 Stipulated Protective Order does not entitle them to file confidential information
14 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
15 and the standards that will be applied when a party seeks permission from the Court
16 to file material under seal.
17 There is a strong presumption that the public has a right of access to judicial
18 proceedings and records in civil cases. In connection with non-dispositive motions,
19 good cause must be shown to support a filing under seal. See Kamakana v. City and
20 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006); Phillips v. Gen. Motors
21 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002); Makar-Welbon v. Sony Electrics,
22 Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders
23 require good cause showing), and a specific showing of good cause or compelling
24 reasons with proper evidentiary support and legal justification, must be made with
25 respect to Protected Material that a party seeks to file under seal. The parties’ mere
26 designation of Disclosure or Discovery Material as CONFIDENTIAL does not—
27 without the submission of competent evidence by declaration, establishing that the
1 material sought to be filed under seal qualifies as confidential, privileged, or
2 otherwise protectable—constitute good cause.
3 Further, if a party requests sealing related to a dispositive motion or trial, then
4 compelling reasons, not only good cause, for the sealing must be shown, and the
5 relief sought shall be narrowly tailored to serve the specific interest to be protected.
6 See Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For
7 each item or type of information, document, or thing sought to be filed or introduced
8 under seal in connection with a dispositive motion or trial, the party seeking
9 protection must articulate compelling reasons, supported by specific facts and legal
10 justification, for the requested sealing order. Again, competent evidence supporting
11 the application to file documents under seal must be provided by declaration.
12 Any document that is not confidential, privileged, or otherwise protectable in
13 its entirety will not be filed under seal if the confidential portions can be redacted.
14 If documents can be redacted, then a redacted version for public viewing, omitting
15 only the confidential, privileged, or otherwise protectable portions of the document
16 shall be filed. Any application that seeks to file documents under seal in their
17 entirety should include an explanation of why redaction is not feasible.
18
19 2. DEFINITIONS
20 2.1 Action: Saleh v. Nike, Inc. and FullStory, Inc., Case No. 2:20-cv-
21 09581-FLA-RAO.
22 2.2 Challenging Party: a Party or Non-Party that challenges the
23 designation of information or items under this Order.
24 2.3 “CONFIDENTIAL” Information or Items: information (regardless of
25 how it is generated, stored or maintained) or tangible things that qualify for
26 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
27 the Good Cause Statement.
1 Information or Items: extremely sensitive “Confidential Information or Items,” the
2 disclosure of which to another Party or Non-Party would create a substantial risk of
3 serious harm that could not be avoided by less restrictive means. Information
4 qualifying for “Highly Confidential – Attorneys’ Eyes Only” includes but is not
5 limited to: (a) marketing, financial, sales, web traffic, research and development, or
6 technical, data or information; (b) commercially sensitive competitive information;
7 (c) information or data relating to future products or product features not yet
8 commercially released and/or strategic plans; and (d) commercial agreements, the
9 disclosure of which is likely to cause harm to the competitive position of the
10 producing party.
11 2.5 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
12 Items: extremely sensitive “Confidential Information or Items” representing
13 computer code and associated comments and revision histories, formulas,
14 engineering specifications, or schematics that define or otherwise describe in detail
15 the algorithms or structure of software or hardware designs, the disclosure of which
16 to another Party or Non-Party would create a substantial risk of serious harm that
17 could not be avoided by less restrictive means.
18 2.6 Counsel: Outside Counsel of Record and House Counsel (as well as
19 their support staff).
20 2.7 Designating Party: a Party or Non-Party that designates information or
21 items that it produces in disclosures or in responses to discovery as
22 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
23 ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
24 2.8 Disclosure or Discovery Material: all items or information, regardless
25 of the medium or manner in which it is generated, stored, or maintained (including,
26 among other things, testimony, transcripts, and tangible things) that are produced or
27 generated in disclosures or responses to discovery in this matter.
1 pertinent to the litigation who has been retained by a Party or its counsel to serve as
2 an expert witness or as a consultant in this Action.
3 2.10 House Counsel: attorneys who are employees of Defendants to this
4 Action. House Counsel does not include Outside Counsel of Record or any other
5 outside counsel.
6 2.11 Non-Party: any natural person, partnership, corporation, association or
7 other legal entity not named as a Party to this action.
8 2.12 Outside Counsel of Record: attorneys who are not employees of a
9 party to this Action but are retained to represent or advise a party to this Action and
10 have appeared in this Action on behalf of that party or are affiliated with a law firm
11 that has appeared on behalf of that party, and includes support staff.
12 2.13 Party: any party to this Action, including all of its officers, directors,
13 employees, consultants, retained experts, and Outside Counsel of Record (and their
14 support staffs).
15 2.14 Producing Party: a Party or Non-Party that produces Disclosure or
16 Discovery Material in this Action.
17 2.15 Professional Vendors: persons or entities that provide litigation
18 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
19 demonstrations, and organizing, storing, or retrieving data in any form or medium)
20 and their employees and subcontractors.
21 2.16 Protected Material: any Disclosure or Discovery Material that is
22 designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
23 EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
24 2.17 Receiving Party: a Party that receives Disclosure or Discovery
25 Material from a Producing Party.
26
27
1 3. SCOPE
2 The protections conferred by this Stipulation and Order cover not only
3 Protected Material (as defined above), but also (1) any information copied or
4 extracted from Protected Material; (2) all copies, excerpts, summaries, or
5 compilations of Protected Material; and (3) any testimony, conversations, or
6 presentations by Parties or their Counsel that might reveal Protected Material.
7 Any use of Protected Material at trial shall be governed by the orders of the
8 trial judge. This Order does not govern the use of Protected Material at trial.
9
10 4. DURATION
11 Even after final disposition of this litigation, the confidentiality obligations
12 imposed by this Order shall remain in effect until a Designating Party agrees
13 otherwise in writing or a court order otherwise directs. Final disposition shall be
14 deemed to be the later of (1) dismissal of all claims and defenses in this action, with
15 or without prejudice; and (2) final judgment herein after the completion and
16 exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
17 including the time limits for filing any motions or applications for extension of time
18 pursuant to applicable law.
19
20 5. DESIGNATING PROTECTED MATERIAL
21 5.1 Exercise of Restraint and Care in Designating Material for Protection.
22 Each Party or Non-Party that designates information or items for protection under
23 this Order must take care to limit any such designation to specific material that
24 qualifies under the appropriate standards. To the extent it is practical to do so, the
25 Designating Party must designate for protection only those parts of material,
26 documents, items or oral or written communications that qualify so that other
27 portions of the material, documents, items or communications for which protection
1 Mass, indiscriminate or routinized designations are prohibited. Designations
2 that are shown to be clearly unjustified or that have been made for an improper
3 purpose (e.g., to unnecessarily encumber the case development process or to impose
4 unnecessary expenses and burdens on other parties) may expose the Designating
5 Party to sanctions.
6 If it comes to a Designating Party’s attention that information or items that it
7 designated for protection do not qualify for protection, that Designating Party must
8 promptly notify all other Parties that it is withdrawing the inapplicable designation.
9 5.2 Manner and Timing of Designations. Except as otherwise provided in
10 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
11 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
12 under this Order must be clearly so designated before the material is disclosed or
13 produced.
14 Designation in conformity with this Order requires:
15 (a) for information in documentary form (e.g., paper or electronic
16 documents, but excluding transcripts of depositions or other pretrial or trial
17 proceedings), that the Producing Party affix at a minimum, the legend
18 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
19 ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE”, to each page that
20 contains protected material. If only a portion of the material on a page qualifies for
21 protection, the Producing Party also must clearly identify the protected portion(s)
22 (e.g., by making appropriate markings in the margins).
23 A Party or Non-Party that makes original documents available for inspection
24 need not designate them for protection until after the inspecting Party has indicated
25 which documents it would like copied and produced. During the inspection and
26 before the designation, all of the material made available for inspection shall be
27 deemed “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
1 inspecting Party has identified the documents it wants copied and produced, the
2 Producing Party must determine which documents, or portions thereof, qualify for
3 protection under this Order. Then, before producing the specified documents, the
4 Producing Party must affix the appropriate legend (“CONFIDENTIAL,” “HIGHLY
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY
6 CONFIDENTIAL – SOURCE CODE”) to each page that contains Protected
7 Material. If only a portion of the material on a page qualifies for protection, the
8 Producing Party also must clearly identify the protected portion(s) (e.g., by making
9 appropriate markings in the margins).
10 (b) for testimony given in depositions that the Designating Party identifies
11 the Disclosure or Discovery Material on the record, before the close of the
12 deposition, hearing, or other proceeding, all protected testimony. When it is
13 impractical to identify separately each portion of testimony that is entitled to
14 protection and it appears that substantial portions of the testimony may qualify for
15 protection, the Designating Party may invoke on the record (before the deposition,
16 hearing, or other proceeding is concluded) a right to have up to 21 days to identify
17 the specific portions of the testimony as to which protection is sought and to specify
18 the level of protection being asserted. Only those portions of the testimony that are
19 appropriately designated for protection within 21 days shall be covered by the
20 provisions of this Stipulated Protective Order. Alternatively, a Designating Party
21 may specify, at the deposition, hearing, or other proceeding or up to 21 days
22 afterwards if that period is properly invoked, that the entire transcript shall be
23 treated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
24 EYES ONLY.”
25 Parties shall give the other parties notice if they reasonably expect a
26 deposition, hearing, or other proceeding to include Protected Material so that the
27 other parties can ensure that only authorized individuals who have signed the
1 proceedings. The use of a document as an exhibit at a deposition shall not in any
2 way affect its designation as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL
3 – ATTORNEYS’ EYES ONLY.”
4 Transcripts containing Protected Material shall have an obvious legend on the
5 title page that the transcript contains Protected Material, and the title page shall be
6 followed by a list of all pages (including line numbers as appropriate) that have been
7 designated as Protected Material and the level of protection being asserted by the
8 Designating Party. The Designating Party shall inform the court reporter of these
9 requirements. Any transcript that is prepared before the expiration of a 21-day
10 period for designation shall be treated during that period as if it had been designated
11 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
12 otherwise agreed. After the expiration of that period, the transcript shall be treated
13 only as actually designated.
14 (c) for information produced in some form other than documentary and
15 for any other tangible items, that the Producing Party affix in a prominent place on
16 the exterior of the container or containers in which the information is stored the
17 legend “CONFIDENTIAL,” HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18 ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a portion or
19 portions of the information warrants protection, the Producing Party, to the extent
20 practicable, shall identify the protected portion(s).
21 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
22 failure to designate qualified information or items does not, standing alone, waive
23 the Designating Party’s right to secure protection under this Order for such material.
24 Upon timely correction of a designation, the Receiving Party must make reasonable
25 efforts to assure that the material is treated in accordance with the provisions of this
26 Order.
27
1 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
2 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
3 designation of confidentiality at any time that is consistent with the Court’s
4 Scheduling Order.
5 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
6 resolution process under Local Rule 37.1 et seq.
7 6.3 The burden of persuasion in any such challenge proceeding shall be on
8 the Designating Party. Frivolous challenges, and those made for an improper
9 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
10 parties) may expose the Challenging Party to sanctions. Unless the Designating
11 Party has waived or withdrawn the confidentiality designation, all parties shall
12 continue to afford the material in question the level of protection to which it is
13 entitled under the Producing Party’s designation until the Court rules on the
14 challenge.
15
16 7. ACCESS TO AND USE OF PROTECTED MATERIAL
17 7.1 Basic Principles. A Receiving Party may use Protected Material that is
18 disclosed or produced by another Party or by a Non-Party in connection with this
19 Action only for prosecuting, defending or attempting to settle this Action. Such
20 Protected Material may be disclosed only to the categories of persons and under the
21 conditions described in this Order. When the Action has been terminated, a
22 Receiving Party must comply with the provisions of section 14 below (FINAL
23 DISPOSITION).
24 Protected Material must be stored and maintained by a Receiving Party at a
25 location and in a secure manner that ensures that access is limited to the persons
26 authorized under this Order.
27 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless
1 Receiving Party may disclose any information or item designated
2 “CONFIDENTIAL” only to:
3 (a) the Receiving Party’s Outside Counsel of Record in this Action, as
4 well as employees of said Outside Counsel of Record to whom it is reasonably
5 necessary to disclose the information for this Action;
6 (b) the officers, directors, and employees (including House Counsel) of
7 the Receiving Party to whom disclosure is reasonably necessary for this Action;
8 (c) Experts (as defined in this Order) of the Receiving Party to whom
9 disclosure is reasonably necessary for this Action and who have signed the
10 “Acknowledgment and Agreement to Be Bound” (Exhibit A);
11 (d) the Court and its personnel;
12 (e) court reporters and their staff;
13 (f) professional jury or trial consultants, mock jurors, and Professional
14 Vendors to whom disclosure is reasonably necessary for this Action and who have
15 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
16 (g) the author or recipient of a document containing the information or a
17 custodian or other person who otherwise possessed or knew the information;
18 (h) during their depositions, witnesses, and attorneys for witnesses, in the
19 Action to whom disclosure is reasonably necessary provided: (1) the deposing party
20 requests that the witness sign the form attached as Exhibit A hereto; and (2) they
21 will not be permitted to keep any confidential information unless they sign the
22 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise
23 agreed by the Designating Party or ordered by the Court. Pages of transcribed
24 deposition testimony or exhibits to depositions that reveal Protected Material may
25 be separately bound by the court reporter and may not be disclosed to anyone except
26 as permitted under this Stipulated Protective Order; and
27 (i) any mediator or settlement officer, and their supporting personnel,
1 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
2 ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
3 Items. Unless otherwise ordered by the Court or permitted in writing by the
4 Designating Party, a Receiving Party may disclose any information or item
5 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
6 “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
7 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
8 employees of said Outside Counsel of Record to whom it is reasonably necessary to
9 disclose the information for this litigation and who have signed the
10 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
11 A;
12 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably
13 necessary for this litigation, (2) who have signed the “Acknowledgment and
14 Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in
15 paragraph 7.4(a), below, have been followed;
16 (c) the Court and its personnel;
17 (d) court reporters and their staff, professional jury or trial consultants, and
18 Professional Vendors to whom disclosure is reasonably necessary for this litigation
19 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
20 A); and
21 (e) the author or recipient of a document containing the information or a
22 custodian or other person who otherwise possessed or knew the information.
23 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
25 CONFIDENTIAL – SOURCE CODE” Information or Items to Experts.
26 (a) Unless otherwise ordered by the Court or agreed to in writing by the
27 Designating Party, a Party that seeks to disclose to an Expert (as defined in this
1 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
2 CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(b) first must make
3 a written request to the Designating Party that (1) identifies the general categories of
4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
5 CONFIDENTIAL – SOURCE CODE” information that the Receiving Party seeks
6 permission to disclose to the Expert, (2) sets forth the full name of the Expert and
7 the city and state of his or her primary residence, (3) attaches a copy of the Expert’s
8 current resume, (4) identifies the Expert’s current employer(s), (5) identifies each
9 person or entity from whom the Expert has received compensation or funding for
10 work in his or her areas of expertise or to whom the expert has provided
11 professional services, including in connection with a litigation, at any time during
12 the preceding five years,2 and (6) identifies (by name and number of the case, filing
13 date, and location of court) any litigation in connection with which the Expert has
14 offered expert testimony, including through a declaration, report, or testimony at a
15 deposition or trial, during the preceding five years.
16 (b) A Party that makes a request and provides the information specified in the
17 preceding respective paragraphs may disclose the subject Protected Material to the
18 identified Expert unless, within 14 days of delivering the request, the Party receives
19 a written objection from the Designating Party. Any such objection must set forth in
20 detail the grounds on which it is based.
21 (c) A Party that receives a timely written objection must meet and confer
22 with the Designating Party (through direct voice to voice dialogue) to try to resolve
23 the matter by agreement within seven days of the written objection. If no agreement
24 is reached, the Party seeking to make the disclosure to the Expert may file a motion
25
26 2 If the Expert believes any of this information is subject to a confidentiality
obligation to a third-party, then the Expert should provide whatever information the
27 Expert believes can be disclosed without violating any confidentiality agreements,
1 seeking permission from the Court to do so. Any such motion must describe the
2 circumstances with specificity, set forth in detail the reasons why the disclosure to
3 the Expert is reasonably necessary, assess the risk of harm that the disclosure would
4 entail, and suggest any additional means that could be used to reduce that risk. In
5 addition, any such motion must be accompanied by a competent declaration
6 describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and
7 the content of the meet and confer discussions) and setting forth the reasons
8 advanced by the Designating Party for its refusal to approve the disclosure.
9 In any such proceeding, the Party opposing disclosure to the Expert shall bear
10 the burden of proving that the risk of harm that the disclosure would entail (under
11 the safeguards proposed) outweighs the Receiving Party’s need to disclose the
12 Protected Material to its Expert.
13
14 8 SOURCE CODE
15 (a) To the extent production of source code becomes necessary in this case, a
16 Producing Party may designate source code as “HIGHLY CONFIDENTIAL -
17 SOURCE CODE” if it comprises or includes confidential, proprietary or trade secret
18 source code.
19 (b) Protected Material designated as “HIGHLY CONFIDENTIAL –
20 SOURCE CODE” may be disclosed only to the individuals set forth in Paragraph
21 7.3.
22 (c) Any source code a Producing Party agrees to provide in discovery shall
23 ONLY be made available for inspection, and not produced except as provided
24 below, in a format allowing it to be reasonably reviewed and searched, during
25 normal business hours or at other mutually agreeable times, at an office of the
26 Producing Party’s counsel or another mutually agreed upon location. The source
27 code shall be made available for inspection on a secured computer in a secured room
1 Party shall not copy, remove, or otherwise transfer any portion of the source code
2 onto any recordable media or recordable device or into any notes. A list of names of
3 persons who will view the source code will be provided to the Producing Party in
4 conjunction with any written notice requesting inspection. The Receiving Party
5 shall maintain a daily log of the names of persons who enter the secured room to
6 view the source code and when they enter and depart. The Producing Party shall be
7 entitled to a copy of the log upon request and may visually monitor the activities of
8 the Receiving Party’s representatives during any source code review, but only to
9 ensure that there is no unauthorized recording, copying, or transmission of the
10 source code.
11 (d) The Receiving Party may request paper copies of limited portions of
12 source code that are reasonably necessary for the preparation of court filings,
13 pleadings, expert reports, or other papers, or for deposition or trial, but shall not
14 request paper copies for the purposes of reviewing the source code other than
15 electronically as set forth in paragraph (c) in the first instance. The Producing Party
16 shall provide all such source code in paper form including bates numbers and the
17 label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing Party may
18 challenge the amount of source code requested in hard copy form pursuant to the
19 dispute resolution procedure and timeframes set forth in Paragraph 6 whereby the
20 Producing Party is the “Challenging Party” and the Receiving Party is the
21 “Designating Party” for purposes of dispute resolution.
22 (e) The Receiving Party shall maintain a record of any individual who has
23 inspected any portion of the source code in electronic or paper form. The Receiving
24 Party shall maintain all paper copies of any printed portions of the source code in a
25 secured, locked area. The Receiving Party shall not create any electronic or other
26 images of the paper copies and shall not convert any of the information contained in
27 the paper copies into any electronic format. The Receiving Party shall only make
1 filings, pleadings, or other papers (including a testifying expert’s expert report), (2)
2 necessary for deposition, or (3) otherwise necessary for the preparation of its case.
3 Any paper copies used during a deposition shall be retrieved by the Producing Party
4 at the end of each day and must not be given to or left with a court reporter or any
5 other unauthorized individual.
6
7 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
8 IN OTHER LITIGATION
9 If a Party is served with a subpoena or a court order issued in other litigation
10 that compels disclosure of any information or items designated in this Action as
11 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
12 ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must:
13 (a) promptly notify in writing the Designating Party. Such notification
14 shall include a copy of the subpoena or court order;
15 (b) promptly notify in writing the party who caused the subpoena or order
16 to issue in the other litigation that some or all of the material covered by the
17 subpoena or order is subject to this Protective Order. Such notification shall include
18 a copy of this Stipulated Protective Order; and
19 (c) cooperate with respect to all reasonable procedures sought to be
20 pursued by the Designating Party whose Protected Material may be affected.
21 If the Designating Party timely seeks a protective order, the Party served with
22 the subpoena or court order shall not produce any information designated in this
23 action as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
24 EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” before a
25 determination by the court from which the subpoena or order issued, unless the
26 Party has obtained the Designating Party’s permission. The Designating Party shall
27 bear the burden and expense of seeking protection in that court of its confidential
1 encouraging a Receiving Party in this Action to disobey a lawful directive from
2 another court.
3
4 10. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
5 PRODUCED IN THIS LITIGATION
6 (a) The terms of this Order are applicable to information produced by a
7 Non-Party in this Action and designated as “CONFIDENTIAL,” “HIGHLY
8 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY
9 CONFIDENTIAL – SOURCE CODE.” Such information produced by Non-Parties
10 in connection with this litigation is protected by the remedies and relief provided by
11 this Order. Nothing in these provisions should be construed as prohibiting a Non-
12 Party from seeking additional protections.
13 (b) In the event that a Party is required, by a valid discovery request, to
14 produce a Non-Party’s confidential information in its possession, and the Party is
15 subject to an agreement with the Non-Party not to produce the Non-Party’s
16 confidential information, then the Party shall:
17 (1) promptly notify in writing the Requesting Party and the Non-Party
18 that some or all of the information requested is subject to a confidentiality
19 agreement with a Non-Party;
20 (2) promptly provide the Non-Party with a copy of the Stipulated
21 Protective Order in this Action, the relevant discovery request(s), and a reasonably
22 specific description of the information requested; and
23 (3) make the information requested available for inspection by the
24 Non-Party, if requested.
25 (c) If the Non-Party fails to seek a protective order from this Court within
26 14 days of receiving the notice and accompanying information, the Receiving Party
27 may produce the Non-Party’s confidential information responsive to the discovery
1 not produce any information in its possession or control that is subject to the
2 confidentiality agreement with the Non-Party before a determination by the Court.
3 Absent a court order to the contrary, the Non-Party shall bear the burden and
4 expense of seeking protection in this Court of its Protected Material.
5
6 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
7 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
8 Protected Material to any person or in any circumstance not authorized under this
9 Stipulated Protective Order, the Receiving Party must immediately (a) notify in
10 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts
11 to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
12 persons to whom unauthorized disclosures were made of all the terms of this Order,
13 and (d) request such person or persons to execute the “Acknowledgment and
14 Agreement to Be Bound” that is attached hereto as Exhibit A.
15
16 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
17 PROTECTED MATERIAL
18 When a Producing Party gives notice to Receiving Parties that certain
19 inadvertently produced material is subject to a claim of privilege or other protection,
20 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
21 Procedure 26(b)(5)(B). This provision is not intended to modify whatever
22 procedure may be established in an e-discovery order that provides for production
23 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and
24 (e), insofar as the parties reach an agreement on the effect of disclosure of a
25 communication or information covered by the attorney-client privilege or work
26 product protection, the parties may incorporate their agreement in the stipulated
27 protective order submitted to the court.
1
2 13. MISCELLANEOUS
3 13.1 Right to Further Relief. Nothing in this Order abridges the right of any
4 person to seek its modification by the Court in the future.
5 13.2 Right to Assert Other Objections. By stipulating to the entry of this
6 Protective Order, no Party waives any right it otherwise would have to object to
7 disclosing or producing any information or item on any ground not addressed in this
8 Stipulated Protective Order. Similarly, no Party waives any right to object on any
9 ground to use in evidence of any of the material covered by this Protective Order.
10 13.3 Filing Protected Material. A Party that seeks to file under seal any
11 Protected Material must comply with Local Civil Rule 79-5. Protected Material
12 may only be filed under seal pursuant to a court order authorizing the sealing of the
13 specific Protected Material at issue. If a Party’s request to file Protected Material
14 under seal is denied by the court, then the Receiving Party may file the information
15 in the public record unless otherwise instructed by the court.
16
17 14. FINAL DISPOSITION
18 After the final disposition of this Action, as defined in paragraph 4, within 60
19 days of a written request by the Designating Party, each Receiving Party must return
20 all Protected Material to the Producing Party or destroy such material. As used in
21 this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
22 summaries, and any other format reproducing or capturing any of the Protected
23 Material. Whether the Protected Material is returned or destroyed, the Receiving
24 Party must submit a written certification to the Producing Party (and, if not the same
25 person or entity, to the Designating Party) by the 60 day deadline that (1) identifies
26 (by category, where appropriate) all the Protected Material that was returned or
27 destroyed and (2) affirms that the Receiving Party has not retained any copies,
1 || of the Protected Material. Notwithstanding this provision, Counsel are entitled to
2 || retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing
3 || transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
4 || reports, attorney work product, and consultant and expert work product, even if such
5 || materials contain Protected Material. Any such archival copies that contain or
6 || constitute Protected Material remain subject to this Protective Order as set forth in
7 || Section 4 (DURATION).
8
9 |} 15. VIOLATION
10 |} Any violation of this Order may be punished by appropriate measures including,
11 |} without limitation, contempt proceedings and/or monetary sanctions.
12
13 || ITIS SO STIPULATED, THROUGH COUNSEL OF RECORD.
14 || DATED: June 23, 2021
15
16 /s/ Joel D. Smith
7 Attorneys for Plaintiff
18
19 DATED: June 23, 2021
20
/s/ Emily Henn
21 Attorneys for Defendants
22
23 || FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
24 || DATED: June 23, 2021
25
26 Rayebhs Qa.
97 || HON. ROZELLA A. OLIVER
3 United States Magistrate Judge
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
4 I, _____________________________ [print or type full name], of
5 _________________ [print or type full address], declare under penalty of perjury
6 that I have read in its entirety and understand the Stipulated Protective Order that
7 was issued by the United States District Court for the Central District of California
8 on [date] in the case of Saleh v. Nike, Inc. and FullStory, Inc., Case No. 2:20-cv-
9 09581-FLA-RAO. I agree to comply with and to be bound by all the terms of this
10 Stipulated Protective Order and I understand and acknowledge that failure to so
11 comply could expose me to sanctions and punishment in the nature of contempt. I
12 solemnly promise that I will not disclose in any manner any information or item that
13 is subject to this Stipulated Protective Order to any person or entity except in strict
14 compliance with the provisions of this Order.
15 I further agree to submit to the jurisdiction of the United States District Court
16 for the Central District of California for enforcing the terms of this Stipulated
17 Protective Order, even if such enforcement proceedings occur after termination of
18 this action. I hereby appoint __________________________ [print or type full
19 name] of _______________________________________ [print or type full address
20 and telephone number] as my California agent for service of process in connection
21 with this action or any proceedings related to enforcement of this Stipulated
22 Protective Order.
23 Date: ______________________________________
24 City and State where sworn and signed: _________________________________
25
26 Printed name: _______________________________
27