even stipulated protective orders require good 17 cause showing
How later courts described this case
- even stipulated protective orders require good 17 cause showing
Written by the judges who cited it.
The opinion
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 1 of 23 Page ID #:1631
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UNITED STATES DISTRICT COURT
10 CENTRAL DISTRICT OF CALIFORNIA
11 WESTERN DIVISION – LOS ANGELES
12 MZ AUDIO SCIENCES, LLC, Case No.: 2:22-cv-00866 AB (PDx)
13 Plaintiff,
STIPULATED PROTECTIVE
14
v.
ORDER1
15 SONY GROUP CORPORATION
16 (JAPAN), SONY CORPORATION OF
AMERICA, SONY INTERACTIVE
17 ENTERTAINMENT LLC, SONY
PICTURES ENTERTAINMENT INC.,
18 SONY ELECTRONICS INC.,
19 Defendants.
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1 This Stipulated Protective Order is based on the model protective order provided
26
under Magistrate Judge Patricia Donahue’s Procedures. The Parties further
27 contemplate entering into a Source Code Addendum to handle the production and
review of highly confidential source code but for the sake of efficiency have decided
28
to handle the Source Code Addendum separately.
Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 2 of 23 Page ID #:1632
1 1. PURPOSES AND LIMITATIONS
2 Disclosure and discovery activity in this Action are likely to involve
3 production of confidential, proprietary, or private information for which special
4 protection from public disclosure and from use for any purpose other than
5 prosecuting this litigation may be warranted. Accordingly, the Parties hereby
6 stipulate to and petition the Court to enter the following Stipulated Protective Order.
7 The Parties acknowledge that this Order does not confer blanket protections on all
8 disclosures or responses to discovery and the protection it affords from public
9 disclosure and use extends only to the limited information or items that are entitled
10 to confidential treatment under the applicable legal principles.
11 A. GOOD CAUSE STATEMENT
12 This Action is likely to involve proprietary computer source code, sales and
13 financial information, technical documents, and other valuable research,
14 development, commercial, financial, technical and/or proprietary information for
15 which special protection from public disclosure and from use for any purpose other
16 than the prosecution of this Action is warranted. Such confidential and proprietary
17 materials and information consist of, among other things, confidential business or
18 financial information, information regarding confidential business practices, or other
19 confidential research, development, or commercial information (including
20 information proprietary and confidential to third parties), information otherwise
21 generally unavailable to the public, or which may be protected from disclosure under
22 state or federal statutes, court rules, case decisions, or common law. Accordingly, to
23 expedite the flow of information, to facilitate the prompt resolution of disputes over
24 the confidentiality of discovery materials, to adequately protect information the
25 Parties are entitled to keep confidential, to ensure that the Parties are permitted
26 reasonable necessary uses of such material in preparation for and in the conduct of
27 trial, to address their handling at the end of the litigation, and serve the ends of justice,
28 a protective order for such information is justified in this matter. It is the intent of the
1 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 3 of 23 Page ID #:1633
1 Parties that information will not be designated as confidential for tactical reasons
2 and that nothing be so designated without a good faith belief that it has been
3 maintained in a confidential, non-public manner, and there is good cause why it
4 should not be part of the public record of this case.
5 B. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER SEAL
6 The Parties further acknowledge, as set forth in Section 12.3, below, that this
7 Stipulated Protective Order does not entitle them to file confidential information
8 under seal by relying on this Protective Order alone. Local Civil Rule 79-5 sets forth
9 the procedures that must be followed and the standards that will be applied when a
10 Party seeks permission from the court to file material under seal.
11 There is a strong presumption that the public has a right of access to judicial
12 proceedings and records in civil cases. In connection with non-dispositive motions,
13 good cause must be shown to support a filing under seal. See Kamakana v. City and
14 County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen. Motors
15 Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,
16 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders require good
17 cause showing), and a specific showing of good cause or compelling reasons with
18 proper evidentiary support and legal justification, must be made with respect to
19 Protected Material that a Party seeks to file under seal. The Parties’ mere designation
20 of Disclosure or Discovery Material as confidential does not—without the submission
21 of competent evidence by declaration, establishing that the material sought to be filed
22 under seal qualifies as confidential, privileged, or otherwise protectable—constitute
23 good cause.
24 Further, if a Party requests sealing related to a dispositive motion or trial, then
25 compelling reasons, not only good cause, for the sealing must be shown, and the relief
26 sought shall be narrowly tailored to serve the specific interest to be protected. See
27 Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). For each item
28 or type of information, document, or thing sought to be filed or introduced under seal
2 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 4 of 23 Page ID #:1634
1 in connection with a dispositive motion or trial, the Party seeking protection must
2 articulate compelling reasons, supported by specific facts and legal justification, for
3 the requested sealing order. Again, competent evidence supporting the application to
4 file documents under seal must be provided by declaration.
5 Any document that is not confidential, privileged, or otherwise protectable in
6 its entirety will not be filed under seal if the confidential portions can be redacted. If
7 documents can be redacted, then a redacted version for public viewing, omitting only
8 the confidential, privileged, or otherwise protectable portions of the document, shall
9 be filed. Any application that seeks to file documents under seal in their entirety
10 should include an explanation of why redaction is not feasible.
11 2. DEFINITIONS
12 2.1 Action or litigation: This pending federal lawsuit captioned above.
13 2.2 Challenging Party: a Party or Non-Party that challenges the designation
14 of information or items under this Order.
15 2.3 “CONFIDENTIAL” Information or Items: Information (regardless of
16 how it is generated, stored or maintained) or tangible things that qualify for
17 protection under Federal Rule of Civil Procedure 26(c), and as specified above in
18 the Good Cause Statement.
19 2.4 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
20 Information or Items: extremely sensitive confidential information or items,
21 disclosure of which to another Party or Non-Party would create a substantial risk of
22 serious harm that could not be avoided by less restrictive means.
23 2.5 Counsel: Outside Counsel of Record and In-House Counsel (as well as
24 their support staff).
25 2.6 Designating Party: a Party or Non-Party that designates information or
26 items that it produces in disclosures or in responses to discovery as
27 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS' EYES
28 ONLY.”
3 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 5 of 23 Page ID #:1635
1 2.7 Disclosure or Discovery Material: all items or information, regardless
2 of the medium or manner in which they are generated, stored, or maintained
3 (including, among other things, testimony, transcripts, and tangible things), that are
4 produced or generated in disclosures or responses to discovery in this matter.
5 2.8 Expert: a person with specialized knowledge or experience in a matter
6 pertinent to the litigation who (1) has been retained by a Party or its counsel to serve
7 as an expert witness or as a consultant in this Action, (2) is not an employee of a
8 Party, and (3) at the time of retention, is not anticipated to become an employee of a
9 Party.
10 2.9 Non-Party: any natural person, partnership, corporation, association, or
11 other legal entity not named as a Party to this Action.
12 2.10 Outside Counsel of Record: attorneys who are not employees of a Party
13 but are retained to represent or advise a Party and have appeared in this Action on
14 behalf of that Party or are affiliated with a law firm which has appeared on behalf of
15 that Party, and includes support staff.
16 2.11 In-House Counsel: attorneys who are employees of a Party. In-House
17 Counsel does not include Outside Counsel of Record or any other Outside Counsel.
18 2.12 Party: any party to this Action, including all of its officers, directors,
19 employees, consultants, retained experts, and Outside Counsel of Record (and their
20 support staffs).
21 2.13 Producing Party: a Party or Non-Party that produces Disclosure or
22 Discovery Material in this Action.
23 2.14 Professional Vendors: persons or entities that provide litigation support
24 services (e.g., photocopying, videotaping, translating, preparing exhibits or
25 demonstrations, and organizing, storing, or retrieving data in any form or medium)
26 and their employees and subcontractors.
27
28
4 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 6 of 23 Page ID #:1636
1 2.15 Protected Material: any Disclosure or Discovery Material that is
2 designated as “CONFIDENITAL” or “HIGHLY CONFIDENTIAL –
3 ATTORNEYS’ EYES ONLY.”
4 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material
5 from a Producing Party.
6 3. SCOPE
7 The protections conferred by this Order cover not only Protected Material (as
8 defined above), but also (1) any information copied or extracted from Protected
9 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
10 and (3) any testimony, conversations, or presentations by Parties or their Counsel
11 that might reveal Protected Material. However, the protections conferred by this
12 Order do not cover the following information: (a) any information that is in the
13 public domain at the time of disclosure to a Receiving Party or becomes part of the
14 public domain after its disclosure to a Receiving Party as a result of publication not
15 involving a violation of this Order, including becoming part of the public record
16 through trial or otherwise; and (b) any information known to the Receiving Party
17 prior to the disclosure or obtained by the Receiving Party after the disclosure from a
18 source who obtained the information lawfully and under no obligation of
19 confidentiality to the Designating Party. Any use of Protected Material at trial shall
20 be governed by a separate agreement or order.
21 4. DURATION
22 Even after final disposition of this litigation, the confidentiality obligations
23 imposed by this Order shall remain in effect until a Designating Party agrees
24 otherwise in writing or a court order otherwise directs. Final disposition shall be
25 deemed to be the later of (1) dismissal of all claims and defenses in this Action, with
26 or without prejudice; and (2) final judgment herein after the completion and
27 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
28
5 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 7 of 23 Page ID #:1637
1 including the time limits for filing any motions or applications for extension of time
2 pursuant to applicable law.
3 5. DESIGNATING PROTECTED MATERIAL
4 5.1 Exercise of Restraint and Care in Designating Material for Protection.
5 Each Party or Non-Party that designates information or items for protection under
6 this Order must take care to limit any such designation to specific material that
7 qualifies under the appropriate standards. To the extent it is practical to do so, the
8 Designating Party must designate for protection only those parts of material,
9 documents, items, or oral or written communications that qualify – so that other
10 portions of the material, documents, items, or communications for which protection
11 is not warranted are not swept unjustifiably within the ambit of this Order.
12 Mass, indiscriminate, or routinized designations are prohibited, particularly
13 with respect to court filings. Reasonable allowances will be made for designations
14 of documents in document productions, specifically in the interests of efficiency
15 when differentiating between Confidential and Highly Confidential – Attorneys
16 Eyes Only documents or portions of documents is challenging on a compressed
17 schedule. Designations that are shown to be clearly unjustified or that have been
18 made for an improper purpose (e.g., to unnecessarily encumber or retard the case
19 development process or to impose unnecessary expenses and burdens on other
20 parties) expose the Designating Party to sanctions.
21 If it comes to a Designating Party’s attention that information or items that it
22 designated for protection do not qualify for protection at all or do not qualify for the
23 level of protection initially asserted, that Designating Party must notify all other
24 Parties that it is withdrawing the mistaken designation.
25 5.2 Manner and Timing of Designations. Except as otherwise provided in
26 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
27 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
28
6 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 8 of 23 Page ID #:1638
1 under this Order must be clearly so designated before the material is disclosed or
2 produced.
3 Designation in conformity with this Order requires:
4 (a) for information in documentary form (e.g., paper or electronic documents,
5 transcripts of depositions or other pretrial or trial proceedings), that the Producing
6 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
7 ATTORNEYS’ EYES ONLY” to each page that contains Protected Material. If only
8 a portion or portions of the material on a page qualifies for protection, the Producing
9 Party also must clearly identify the protected portion(s) (e.g., by making appropriate
10 markings in the margins) and must specify, for each portion, the level of protection
11 being asserted.
12 A Party or Non-Party that makes original documents or materials available for
13 inspection need not designate them for protection until after the inspecting Party has
14 indicated which material it would like copied and produced. During the inspection
15 and before the designation, all of the material made available for inspection shall be
16 deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the
17 inspecting Party has identified the documents it wants copied and produced, the
18 Producing Party must determine which documents, or portions thereof, qualify for
19 protection under this Order. Then, before producing the specified documents, the
20 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or
21 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that
22 contains Protected Material. If only a portion or portions of the material on a page
23 qualifies for protection, the Producing Party also must clearly identify the protected
24 portion(s) (e.g., by making appropriate markings in the margins) and must specify,
25 for each portion, the level of protection being asserted.
26 (b) for testimony given in deposition or in other pretrial or trial proceedings,
27 that the Designating Party identify on the record, before the close of the deposition,
28 hearing, or other proceeding, all protected testimony and specify the level of
7 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 9 of 23 Page ID #:1639
1 protection being asserted. When it is impractical to identify separately each portion
2 of testimony that is entitled to protection and it appears that substantial portions of
3 the testimony may qualify for protection, the Designating Party may invoke on the
4 record (before the deposition, hearing, or other proceeding is concluded) a right to
5 have up to 21 days to identify the specific portions of the testimony as to which
6 protection is sought and to specify the level of protection being asserted. Only those
7 portions of the testimony that are appropriately designated for protection within the
8 21 days shall be covered by the provisions of this Protective Order. Alternatively, a
9 Designating Party may specify, at the deposition or up to 21 days afterwards if that
10 period is properly invoked, that the entire transcript shall be treated as “HIGHLY
11 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
12 Parties shall use reasonable efforts to give notice to the Designating Party if
13 they reasonably expect a deposition, hearing or other proceeding to include
14 Protected Material so that the Designating Party can ensure that only authorized
15 individuals who have signed the “Acknowledgement and Agreement to be Bound”
16 (Exhibit A) are present in those proceedings.
17 Transcripts containing Protected Material shall have an obvious legend on the
18 title page that the transcript contains Protected Material, and the title page shall be
19 followed by a list of all pages (including line numbers as appropriate) that have been
20 designated as Protected Material and the level of protection being asserted by the
21 Designating Party. The Designating Party shall inform the court reporter of these
22 requirements. Any transcript that is prepared before the expiration of a 21-day
23 period for designation shall be treated during that period as if it had been designated
24 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
25 otherwise agreed. After the expiration of that period, the transcript shall be treated
26 only as actually designated.
27 (c) for information produced in some form other than documentary and for
28 any other tangible items, that the Producing Party affix in a prominent place on the
8 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 10 of 23 Page ID #:1640
1 exterior of the container or containers in which the information or item is stored the
2 legend “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a
3 portion or portions of the information or item warrant protection, the Producing
4 Party, to the extent practicable, shall identify the protected portion(s) and specify the
5 level of protection being asserted.
6 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
7 failure to designate qualified information or items does not, standing alone, waive
8 the Designating Party’s right to secure protection under this Order for such material.
9 Upon timely correction of a designation, the Receiving Party must make reasonable
10 efforts to assure that the material is treated in accordance with the provisions of this
11 Order.
12 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
13 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
14 designation of confidentiality at any time. The Designating Party and the
15 Challenging Party agree to act reasonably and cooperatively when any challenges to
16 a Designating Party’s confidentiality designations are raised and, to the extent
17 possible, will work diligently together to resolve challenges without court
18 intervention. Unless a prompt challenge to a Designating Party’s confidentiality
19 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary
20 economic burdens, or a significant disruption or delay of the litigation, a Party does
21 not waive its right to challenge a confidentiality designation by electing not to
22 mount a challenge promptly after the original designation is disclosed.
23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
24 resolution process by providing written notice of each designation it is challenging
25 and describing the basis for each challenge. To avoid ambiguity as to whether a
26 challenge has been made, the written notice must recite that the challenge to
27 confidentiality is being made in accordance with this specific paragraph of the
28 Protective Order. The Parties shall attempt to resolve each challenge in good faith
9 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 11 of 23 Page ID #:1641
1 and must begin the process by conferring directly (in voice-to-voice dialogue; other
2 forms of communication are not sufficient) within 14 days of the date of service of
3 notice. In conferring, the Challenging Party must explain the basis for its belief that
4 the confidentiality designation was not proper and must give the Designating Party
5 an opportunity to review the designated material, to reconsider the circumstances,
6 and, if no change in designation is offered, to explain the basis for the chosen
7 designation. A Challenging Party may proceed to the next stage of the challenge
8 process only if it has engaged in this meet and confer process first or establishes that
9 the Designating Party is unwilling to participate in the meet and confer process in a
10 timely manner.
11 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without
12 court intervention, the Challenging Party may file a motion challenging a
13 confidentiality designation within 14 days of the Parties agreeing that the meet and
14 confer process will not resolve their dispute, if there is good cause for doing so,
15 including a challenge to the designation of a deposition transcript or any portions
16 thereof. Any motion brought pursuant to this provision must be accompanied by a
17 competent declaration affirming that the movant has complied with the meet and
18 confer requirements imposed by the preceding paragraph.
19 The burden of persuasion in any such challenge proceeding shall be on the
20 Designating Party. Frivolous challenges and those made for an improper purpose
21 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may
22 expose the Challenging Party to sanctions. All Parties shall continue to afford the
23 material in question the level of protection to which it is entitled under the
24 Producing Party’s designation until the Court rules on the challenge.
25 7. ACCESS TO AND USE OF PROTECTED MATERIAL
26 7.1 Basic Principles. A Receiving Party may use Protected Material that is
27 disclosed or produced by another Party or by a Non-Party in connection with this
28 Action only for prosecuting, defending, or attempting to settle this litigation. Such
10 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 12 of 23 Page ID #:1642
1 Protected Material may be disclosed only to the categories of persons and under the
2 conditions described in this Order. When the Action has been terminated, a
3 Receiving Party must comply with the provisions of section 15 below (FINAL
4 DISPOSITION).
5 Protected Material must be stored and maintained by a Receiving Party at a
6 location and in a secure manner that ensures that access is limited to the persons
7 authorized under this Order.
8 7.2. Disclosure of “CONFIDENTIAL” Information. Unless otherwise
9 ordered by the Court or permitted in writing by the Designating Party, a Receiving
10 Party may disclose any information or item designated “CONFIDENTIAL” only to:
11 (a) the Receiving Party’s Outside Counsel of Record in this action as well as
12 employees of said Outside Counsel of Record to whom it is reasonably necessary to
13 disclose the information for this litigation;
14 (b) three designated In-House Counsel per side or other party representatives
15 of the Receiving party to whom disclosure is reasonably necessary for this litigation
16 (representatives who are not members of the bar in any jurisdiction in the United
17 States must first sign the “Acknowledgement and Agreement to Be Bound” (Exhibit
18 A));
19 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably
20 necessary for this litigation, (2) who have signed the “Acknowledgment and
21 Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in
22 paragraph 7.4(a), below, have been followed; as well as the Expert’s direct reports
23 and other support personnel to whom disclosure is reasonably necessary for this
24 litigation;
25 (d) the Court and its personnel, and mediator
26 (e) court reporters and their staff;
27 (f) professional jury or trial consultants and Professional Vendors to whom
28 disclosure is reasonably necessary for this litigation;
11 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 13 of 23 Page ID #:1643
1 (g) mock jurors who have signed the “Acknowledgement and Agreement to
2 be Bound” (Exhibit A);
3 (h) the author or recipient of a document containing the information or a
4 custodian or other person who otherwise possessed or knew the information.
5 (i) during their depositions, witnesses in the Action to whom disclosure is
6 reasonably necessary and who have signed the “Acknowledgement and Agreement
7 to Be Bound” (Exhibit A), and any witnesses designated by the Designating Party
8 under Fed. R. Civ. P. 30(b)(6) as providing testimony to bind the corporation. Pages
9 of transcribed deposition testimony or exhibits to depositions that reveal Protected
10 Material must be separately bound by the court reporter and may not be disclosed to
11 anyone except as permitted under this Protective Order.
12 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
13 ONLY”. Unless otherwise ordered by the Court or permitted in writing by the
14 Designating Party, a Receiving Party may disclose any information or item
15 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
16 (a) the Receiving Party’s Outside Counsel of Record in this action as well as
17 employees of said Outside Counsel of Record to whom it is reasonably necessary to
18 disclose the information for this litigation;
19 (b) three designated In-House Counsel per side to whom disclosure is
20 reasonably necessary for this litigation, and who have no involvement in
21 competitive decision-making, and who have been pre-approved by the Designating
22 Party;
23 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably
24 necessary for this litigation, (2) who have signed the “Acknowledgment and
25 Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in
26 paragraph 7.4(a), below, have been followed; as well as the Expert’s direct reports
27 and other support personnel to whom disclosure is reasonably necessary for this
28 litigation;
12 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 14 of 23 Page ID #:1644
1 (d) the Court and its personnel, and mediators;
2 (e) court reporters and their staff;
3 (f) professional jury or trial consultants and Professional Vendors to whom
4 disclosure is reasonably necessary for this litigation;
5 (g) mock jurors who have signed the “Acknowledgement and Agreement to
6 be Bound” (Exhibit A);
7 (h) the author or recipient of a document containing the information or a
8 custodian or other person who otherwise possessed or knew the information.
9 (i) during their depositions, witnesses in the Action to whom disclosure is
10 reasonably necessary and who have signed the “Acknowledgement and Agreement
11 to Be Bound” (Exhibit A), and any witnesses designated by the Designating Party
12 under Fed. R. Civ. P. 30(b)(6) as providing testimony to bind the corporation. Pages
13 of transcribed deposition testimony or exhibits to depositions that reveal Protected
14 Material must be separately bound by the court reporter and may not be disclosed to
15 anyone except as permitted under this Protective Order.
16 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
17 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to
18 Experts.
19 (a) Unless otherwise ordered by the Court or agreed to in writing by the
20 Designating Party, a Party that seeks to disclose to an Expert (as defined in this
21 Order) any information or item that has been designated “CONFIDENTIAL” or
22 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” must first must
23 make a written request to the Designating Party that (1) requests permission to
24 disclose to the Expert “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
25 ATTORNEYS’ EYES ONLY” information, (2) sets forth the full name of the
26 Expert and the city and state of his or her primary residence, (3) attaches a copy of
27 the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
28 identifies each person or entity from whom the Expert has received compensation or
13 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 15 of 23 Page ID #:1645
1 funding for work in his or her areas of expertise or to whom the Expert has provided
2 professional services, including in connection with a litigation, at any time during
3 the preceding five years,2 and (6) identifies (by name and number of the case, filing
4 date, and location of court) any litigation in connection with which the Expert has
5 offered expert testimony, including through a declaration, report, or testimony at a
6 deposition or trial, during the preceding five years.
7 (b) A Party that makes a request and provides the information specified in the
8 preceding respective paragraphs may disclose the subject Protected Material to the
9 identified Expert unless, within 7 calendar days of delivering the request, the Party
10 receives a written objection from the Designating Party. Any such objection must
11 set forth in detail the grounds on which it is based.
12 (c) A Party that receives a timely written objection must meet and confer with
13 the Designating Party (through direct voice-to-voice dialogue) to try to resolve the
14 matter by agreement within five days of the written objection. If no agreement is
15 reached, the Party seeking to make the disclosure to the Expert may file a motion
16 seeking permission from the Court to do so. Any such motion must describe the
17 circumstances with specificity, set forth in detail the reasons why disclosure to the
18 Expert is reasonably necessary, assess the risk of harm that the disclosure would
19 entail, and suggest any additional means that could be used to reduce that risk. In
20 addition, any such motion must be accompanied by a competent declaration
21 describing the Parties’ efforts to resolve the matter by agreement (i.e., the extent and
22 the content of the meet and confer discussions) and setting forth the reasons
23 advanced by the Designating Party for its refusal to approve the disclosure. In any
24 such proceeding, the Party opposing disclosure to the Expert shall bear the burden of
25
2 If the Expert believes any of this information is subject to a confidentiality
26
obligation to a third-party, then the Expert should provide whatever information the
27 Expert believes can be disclosed without violating any confidentiality agreements,
and the Party seeking to disclose to the Expert shall be available to meet and confer
28
with the Designating Party regarding any such engagement.
14 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 16 of 23 Page ID #:1646
1 proving that the risk of harm that the disclosure would entail (under the safeguards
2 proposed) outweighs the Receiving Party’s need to disclose the Protected Material
3 to its Expert.
4 8. PROSECUTION BAR
5 Absent written consent from the Producing Party, any individual who receives
6 access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
7 information shall not be involved in the prosecution of patents or patent applications
8 relating to the insertion or deletion of digital watermarks, including without
9 limitation U.S. Patent No. 7,289,961 (the “Patent-in-Suit”) or any patent or
10 application claiming priority to or otherwise related to the Patent-in-Suit, before any
11 foreign or domestic agency, including the United States Patent and Trademark
12 Office (“the Patent Office”). For purposes of this paragraph, “prosecution” includes
13 directly or indirectly drafting, amending, advising, or otherwise affecting the scope
14 or maintenance of patent claims (collectively, “Prohibited Patent Claim Related
15 Activities”). To avoid any doubt, “prosecution” as used in this paragraph does not
16 include representing a party challenging or defending a patent before a domestic or
17 foreign agency (including, but not limited to, a reissue protest, ex parte
18 reexamination, or inter partes review), so long as Prohibited Patent Claim Related
19 Activities are not performed. This Prosecution Bar shall begin when “HIGHLY
20 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information is first accessed by
21 the affected individual and shall end two (2) years after final termination of this
22 action.
23 9. SOURCE CODE
24 (a) [Intentionally left blank - the Parties anticipate entering into a separate
25 Source Code addendum to address the specifics relating to source code materials.
26 Accordingly, this provision is currently and intentionally left blank until such time
27 as a Source code Addendum is agreed to by the Parties and/or entered by this
28 Court].
15 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 17 of 23 Page ID #:1647
1 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
2 PRODUCED IN OTHER LITIGATION
3 If a Party is served with a subpoena or a court order issued in other litigation
4 that compels disclosure of any information or items designated in this action as
5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6 ONLY” that Party must:
7 (a) promptly notify in writing the Designating Party. Such notification shall
8 include a copy of the subpoena or court order;
9 (b) promptly notify in writing the Party who caused the subpoena or order to
10 issue in the other litigation that some or all of the material covered by the subpoena
11 or order is subject to this Protective Order. Such notification shall include a copy of
12 this Protective Order; and
13 (c) cooperate with respect to all reasonable procedures sought to be pursued
14 by the Designating Party whose designated material may be affected.3
15 If the Designating Party timely seeks a protective order, the Party served with
16 the subpoena or court order shall not produce any information designated in this
17 action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
18 EYES ONLY” before a determination by the Court from which the subpoena or
19 order issued, unless the Party has obtained the Designating Party’s permission. The
20 Designating Party shall bear the burden and expense of seeking protection in that
21 court of its confidential material – and nothing in these provisions should be
22 construed as authorizing or encouraging a Receiving Party in this action to disobey a
23 lawful directive from another court.
24
25
26
3 The purpose of imposing these duties is to alert the interested parties to the
27 existence of this Protective Order and to afford the Designating Party in this case an
opportunity to try to protect its confidentiality interests in the Court from which the
28
subpoena or order issued.
16 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 18 of 23 Page ID #:1648
1 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
2 PRODUCED IN THIS LITIGATION
3 (a) The terms of this Order are applicable to information produced by a Non-
4 Party in this action and designated as “CONFIDENTIAL” or “HIGHLY
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced by
6 Non-Parties in connection with this litigation is protected by the remedies and relief
7 provided by this Order. Nothing in these provisions should be construed as
8 prohibiting a Non-Party from seeking additional protections.
9 (b) In the event that a Party is required, by a valid discovery request, to
10 produce a Non-Party’s confidential information in its possession, and the Party is
11 subject to an agreement with the Non-Party not to produce the Non-Party’s
12 confidential information, then the Party shall:
13 1. promptly notify in writing the Requesting Party and the Non-Party that
14 some or all of the information requested is subject to a confidentiality agreement
15 with a Non-Party;
16 2. promptly provide the Non-Party with a copy of the Protective Order in
17 this litigation, the relevant discovery request(s), and a reasonably specific
18 description of the information requested; and
19 3. make the information requested available for inspection by the Non-
20 Party.
21 (c) If the Non-Party fails to object or seek a protective order from this court
22 within 14 days of receiving the notice and accompanying information, the Receiving
23 Party may produce the Non-Party’s confidential information responsive to the
24 discovery request. If the Non-Party timely seeks a protective order, the Receiving
25 Party shall not produce any information in its possession or control that is subject to
26 the confidentiality agreement with the Non-Party before a determination by the
27
28
17 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 19 of 23 Page ID #:1649
1 Court.4 Absent a court order to the contrary, the Non-Party shall bear the burden and
2 expense of seeking protection in this court of its Protected Material.
3 12. UNAUTHORIZED DISCLOSURE OF PROTECTED
4 MATERIAL
5 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
6 Protected Material to any person or in any circumstance not authorized under this
7 Protective Order, the Receiving Party must immediately (a) notify in writing the
8 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
9 all unauthorized copies of the Protected Material, (c) inform the person or persons to
10 whom unauthorized disclosures were made of all the terms of this Order, and (d)
11 request such person or persons to execute the “Acknowledgment and Agreement to
12 Be Bound” that is attached hereto as Exhibit A.
13 13. INADVERTENT PRODUCTION OF PRIVILEGED OR
14 OTHERWISE PROTECTED MATERIAL
15 When a Producing Party gives notice to Receiving Parties that certain
16 inadvertently produced material is subject to a claim of privilege or other protection,
17 the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
18 Procedure 26(b)(5)(B). Furthermore, the production of privileged or work-product
19 protected documents, electronically stored information (“ESI”) or information,
20 whether inadvertent or otherwise, is not a waiver of the privilege or protection from
21 discovery in this case or in any other federal or state proceeding. For example, the
22 mere production of privilege or work-product-protected documents in this case as
23 part of a mass production is not itself a waiver. This Protective Order shall be
24 interpreted to provide the maximum protection allowed by Federal Rule of Evidence
25 502(d).
26
27 4 The purpose of this provision is to alert the interested parties to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to
28
protect its confidentiality interests in this court.
18 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 20 of 23 Page ID #:1650
1 14. MISCELLANEOUS
2 14.1 Right to Further Relief. Nothing in this Order abridges the right of any
3 person to seek its modification by the Court in the future.
4 14.2 Right to Assert Other Objections. No Party waives any right it
5 otherwise would have to object to disclosing or producing any information or item
6 on any ground not addressed in this Protective Order. Similarly, no Party waives any
7 right to object on any ground to use in evidence of any of the material covered by
8 this Protective Order.
9 14.4 Filing Protected Material. A Party that seeks to file under seal any
10 Protected Material must comply with Civil Local Rule 79-5. Protected Material
11 may only be filed under seal pursuant to a court order authorizing the sealing of the
12 Protected Material at issue. If a Party’s request to file Protected Material under seal
13 is denied by the court, then the Receiving Party may file the information in the
14 public record unless otherwise instructed by the court.
15 15. FINAL DISPOSITION
16 Within 60 days after the final disposition of this action each Receiving Party
17 must return all Protected Material to the Producing Party or destroy such material.
18 As used in this subdivision, “all Protected Material” includes all copies, abstracts,
19 compilations, summaries, and any other format reproducing or capturing any of the
20 Protected Material. Whether the Protected Material is returned or destroyed, the
21 Receiving Party must submit a written certification to the Producing Party (and, if
22 not the same person or entity, to the Designating Party) by the 60 day deadline that
23 (1) identifies (by category, where appropriate) all the Protected Material that was
24 returned or destroyed and (2) affirms that the Receiving Party has not retained any
25 copies, abstracts, compilations, summaries or any other format reproducing or
26 capturing any of the Protected Material. Notwithstanding this provision, Counsel are
27 entitled to retain two (2) archival copies of pleadings, motion papers, trial,
28 deposition, and hearing transcripts, legal memoranda, correspondence, deposition
19 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 21 of 23 Page ID #:1651
1 and trial exhibits, expert reports, attorney work product, and consultant and expert
2 work product, even if such materials contain Protected Material. Any such archival
3 copies that contain or constitute Protected Material remain subject to this Protective
4 Order as set forth in Section 4.
5 IT IS SO STIPULATED, through Counsel of Record.
6 Dated: October 13, 2022 Dated: October 13, 2022
7 /s/ Mieke K. Malmberg /s/ Michael N. Rader
Mieke K. Malmberg (SBN 209992) Peter S. Veregge (SBN 155769)
8 mmalmberg@skiermontderby.com peter@cislo.com
SKIERMONT DERBY LLP CISLO & THOMAS LLP
9 800 Wilshire Blvd., Suite 1450 2829 Townsgate Road, Suite 330
Los Angeles, California 90017 Westlake Village, CA 91361
10 Telephone: (213) 788-4500 Phone: (805) 496-1164
Facsimile: (213) 788-4545 Fax: (805) 435-8446
11
Sarah E. Spires (SBN 252917) Michael N. Rader (pro hac vice)
12 sspires@skiermontderby.com mrader@wolfgreenfield.com
Paul J. Skiermont (pro hac vice) WOLF, GREENFIELD & SACKS, P.C.
13 pskiermont@skiermontderby.com 605 Third Avenue, 25th Floor
Steven W. Hartsell (pro hac vice) New York, NY 10158
14 shartsell@skiermontderby.com Phone: 212-697-7890
Ryan A. Hargrave (pro hac vice) Fax: 617-646-8646
15 rhargrave@skiermontderby.com Randy J. Pritzker (pro hac vice)
Michael D. Ricketts (pro hac vice) rpritzker@wolfgreenfield.com
16 mricketts@skiermontderby.com Charles T. Steenburg (pro hac vice)
SKIERMONT DERBY LLP csteenburg@wolfgreenfield.com
17 1601 Elm Street, Suite 4400 Alexandra K. Kim (pro hac vice)
Dallas, Texas 75201 akim@wolfgreenfield.com
18 Telephone: (214) 978-6600 Jie Xiang (pro hac vice)
Facsimile: (214) 978-6601 jxiang@wolfgreenfield.com
19 WOLF, GREENFIELD & SACKS, P.C.
Attorneys for Plaintiff 600 Atlantic Avenue
20 MZ AUDIO SCIENCES, LLC Boston, MA 02210
Phone: 617.646.8000
21 Fax: 617-646-8646
22 Attorneys for Defendants
SONY GROUP CORPORATION
23 (JAPAN), SONY CORPORATION OF
AMERICA, SONY INTERACTIVE
24 ENTERTAINMENT LLC, SONY
PICTURES ENTERTAINMENT INC.,
25 SONY ELECTRONICS INC.
26
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20 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2(22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 22 of 23 Page ID #:1652
1 || IT IS SO ORDERED that the foregoing Agreement is approved.
DATED: October 14, 2022
4 Patricia Donahue
5 Palaces Lrgahoe_
6 || United States Magistrate Judge
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21 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER
Case 2:22-cv-00866-AB-PD Document 80 Filed 10/14/22 Page 23 of 23 Page ID #:1653
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [print or type full name], of
4 _________________ [print or type full address], declare under penalty of perjury
5 that I have read in its entirety and understand the Protective Order that was issued
6 by the United States District Court for the Central District of California on _______
7 [date] in the case of MZ Audio Sciences, LLC v. Sony Group Corporation (Japan),
8 et al., 2:22-cv-00866 AB (PDx), I agree to comply with and to be bound by all the
9 terms of this Protective Order, and I understand and acknowledge that failure to so
10 comply could expose me to sanctions and punishment in the nature of contempt. I
11 solemnly promise that I will not disclose in any manner any information or item that
12 is subject to this Protective Order to any person or entity except in strict compliance
13 with the provisions of this Order.
14 I further agree to submit to the jurisdiction of the United States District Court
15 for the Central District of California for the purpose of enforcing the terms of this
16 Protective Order, even if such enforcement proceedings occur after termination of
17 this action.
18 I hereby appoint __________________________ [print or type full name] of
19 _______________________________________ [print or type full address and
20 telephone number] as my California agent for service of process in connection with
21 this action or any proceedings related to enforcement of this Protective Order.
22
23 Date: ________________ Signature: ________________________________
[signature]
24
25 Printed name: ______________________________
[printed name]
26
27 City and State where sworn and signed: _________________________________
28
22 Case No. 2:22-cv-00866 AB (PDx)
STIPULATED PROTECTIVE ORDER