1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOFTKETEERS, INC., a California ) Case No. 8:19-cv-00519 JVS (JDEx) ) 11 corporation, ) ) STIPULATION AND PROTECTIVE 12 Plaintiff, ) ) ORDER 13 ) ) 14 v. ) ) 15 REGAL WEST CORPORATION d/b/a ) ) 16 REGAL LOGISTICS, a Washington ) Corporation; VU HO INC., THAI ) 17 ) TRAN INC., and DON MAI INC., ) 18 California corporations; and RANDY ) NEEVES, VU HO, THAI QUOC ) 19 ) TRAN, DON MAI, TRUNG NGOC ) 20 DOAN, and DONG BAO PHAM, ) ) 21 individuals, ) Defendants. ) 22 )

23 1. PURPOSES AND LIMITATIONS 24 Discovery in this action is likely to involve production of confidential, 25 proprietary or private information for which special protection from public 26 disclosure and from use for any purpose other than pursuing this litigation may be 27 warranted. Accordingly, the parties hereby stipulate to and petition the Court to 28 1 enter the following Stipulated Protective Order. The parties acknowledge that this 2 Order does not confer blanket protections on all disclosures or responses to 3 discovery and that the protection it affords from public disclosure and use extends 4 only to the limited information or items that are entitled to confidential treatment 5 under the applicable legal principles. 6 2. GOOD CAUSE STATEMENT 7 This action is likely to involve trade secrets, customer and pricing lists and 8 other valuable research, development, commercial, financial, technical and/or 9 proprietary information for which special protection from public disclosure and 10 from use for any purpose other than prosecution of this action is warranted. Such 11 confidential and proprietary materials and information consist of, among other 12 things, confidential business or financial information, information regarding 13 confidential business practices, or other confidential research, development, or 14 commercial information (including information implicating privacy rights of third 15 parties), information otherwise generally unavailable to the public, or which may 16 be privileged or otherwise protected from disclosure under state or federal statutes, 17 court rules, case decisions, or common law. 18 Accordingly, to expedite the flow of information, to facilitate the prompt 19 resolution of disputes over confidentiality of discovery materials, to adequately 20 protect information the parties are entitled to keep confidential, to ensure that the 21 parties are permitted reasonable necessary uses of such material in preparation for 22 23 and in the conduct of trial, to address their handling at the end of the litigation, and 24 serve the ends of justice, a protective order for such information is justified in this 25 matter. It is the intent of the parties that information will not be designated as 26 confidential for tactical reasons and that nothing be so designated without a good 27 faith belief that it has been maintained in a confidential, non-public manner, and 28 there is good cause why it should not be part of the public record of this case. 1 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE 2 The parties further acknowledge, as set forth in subparagraph 15.3, below, 3 that this Stipulated Protective Order does not entitle them to file confidential 4 information under seal; Local Civil Rule 79-5 sets forth the procedures that must 5 be followed and the standards that will be applied when a party seeks permission 6 from the court to file material under seal. There is a strong presumption that the 7 public has a right of access to judicial proceedings and records in civil cases. In 8 connection with non-dispositive motions, good cause must be shown to support a 9 filing under seal. See Kamakana v. City and County of Honolulu,

, 10 1176 (9th Cir. 2006), Phillips v. Gen. Motors Corp.,

, 1210-11 (9th 11 Cir. 2002), Makar-Welbon v. Sony Electrics, Inc.,

(E.D. Wis. 12 1999) (even stipulated protective orders require good cause showing), and a 13 specific showing of good cause or compelling reasons with proper evidentiary 14 support and legal justification, must be made with respect to Protected Material 15 that a party seeks to file under seal. The parties’ mere designation of Disclosure or 16 Discovery Material as CONFIDENTIAL does not— without the submission of 17 competent evidence by declaration, establishing that the material sought to be filed 18 under seal qualifies as confidential, privileged, or otherwise protectable— 19 constitute good cause. 20 Further, if a party requests sealing related to a dispositive motion or trial, 21 then compelling reasons, not only good cause, for the sealing must be shown, and 22 23 the relief sought shall be narrowly tailored to serve the specific interest to be 24 protected. See Pintos v. Pacific Creditors Ass’n.,

(9th Cir. 25 2010). For each item or type of information, document, or thing sought to be filed 26 or introduced under seal, the party seeking protection must articulate compelling 27 reasons, supported by specific facts and legal justification, for the requested sealing 28 1 order. Again, competent evidence supporting the application to file documents 2 under seal must be provided by declaration. 3 Any document that is not confidential, privileged, or otherwise protectable 4 in its entirety will not be filed under seal if the confidential portions can be 5 redacted. If documents can be redacted, then a redacted version for public viewing, 6 omitting only the confidential, privileged, or otherwise protectable portions of the 7 document, shall be filed. Any application that seeks to file documents under seal in 8 their entirety should include an explanation of why redaction is not feasible. 9 4. DEFINITIONS 10 4.1 Action: this pending federal lawsuit. 11 4.2 Challenging Party: a Party or Non-Party that challenges the 12 designation of information or items under this Order. 13 4.3 “CONFIDENTIAL” Information or Items: information 14 (regardless of how it is generated, stored or maintained) or tangible things 15 that qualify for protection under Federal Rule of Civil Procedure 26(c), and 16 as specified above in the Good Cause Statement. 17 4.4 Counsel: Outside Counsel of Record and House Counsel (as 18 well as their support staff). 19 4.5 Designating Party: a Party or Non-Party that designates 20 information or items that it produces in disclosures or in responses to 21 discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 22 23 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 24 CODE”. 25 4.6 Disclosure or Discovery Material: all items or information, 26 regardless of the medium or manner in which it is generated, stored, or 27 maintained (including, among other things, testimony, transcripts, and 28 1 tangible things), that are produced or generated in disclosures or responses 2 to discovery. 3 4.7 Expert: a person with specialized knowledge or experience in a 4 matter pertinent to the litigation who has been retained by a Party or its 5 Counsel to serve as an expert witness or as a consultant in this Action, who: 6 (1) is not and has not been a consultant or contractor for a Party for any 7 other purpose than as an expert witness, (2) is not a past or current 8 officer, director, or employee of a Party or of a Party’s competitor, and (3) at 9 the time of retention, is not anticipated to become an employee of a Party or 10 of a Party’s competitor. For purposes of this definition of “Expert” only, 11 “Party” does not include Outside Counsel of Record. 12 4.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 13 Information or Items: extremely sensitive “Confidential Information or 14 Items,” disclosure of which to another Party or Non-Party would create a 15 substantial risk of serious harm that could not be avoided by less restrictive 16 means. 17 4.9 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information 18 or Items: extremely sensitive “Confidential Information or Items” 19 representing computer code and associated comments and revision histories, 20 formulas, engineering specifications, or schematics that define or otherwise 21 describe in detail the algorithms or structure of software designs, disclosure 22 23 of which to another Party or Non-Party would create a substantial risk of 24 serious harm that could not be avoided by less restrictive means. 25 4.10 House Counsel: attorneys who are employees of a party to this 26 Action. House Counsel does not include Outside Counsel of Record or any 27 other outside counsel. 28 1 4.11 Non-Party: any natural person, partnership, corporation, 2 association or other legal entity not named as a Party to this action. 3 4.12 Outside Counsel of Record: attorneys who are not employees of 4 a party to this Action but are retained to represent a party to this Action and 5 have appeared in this Action on behalf of that party or are affiliated with a 6 law firm that has appeared on behalf of that party, and includes support staff. 7 4.13 Party: any party to this Action, including all of its officers, 8 directors, employees, consultants, retained experts, and Outside Counsel of 9 Record (and their support staffs). 10 4.14 Producing Party: a Party or Non-Party that produces Disclosure 11 or Discovery Material in this Action. 12 4.15 Professional Vendors: persons or entities that provide litigation 13 support services (e.g., photocopying, videotaping, translating, preparing 14 exhibits or demonstrations, and organizing, storing, or retrieving data in any 15 form or medium) and their employees and subcontractors. 16 4.16 Protected Material: any Disclosure or Discovery Material that is 17 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY” or as “HIGHLY CONFIDENTIAL – 19 SOURCE CODE.” 20 4.17 Receiving Party: a Party that receives Disclosure or Discovery 21 Material from a Producing Party. 22 23 5. SCOPE 24 The protections conferred by this Stipulation and Order cover not only 25 Protected Material (as defined above), but also (1) any information copied or 26 extracted from Protected Material; (2) all copies, excerpts, summaries, or 27 compilations of Protected Material; and (3) any testimony, conversations, or 28 presentations by Parties or their Counsel that might reveal Protected Material. 1 However, the protections conferred by this Stipulation and Order do not 2 cover the following information: 3 (a) any information that is in the public domain at the time of 4 disclosure to a Receiving Party or becomes part of the public domain after 5 its disclosure to a Receiving Party as a result of publication not involving a 6 violation of this Order; and 7 (b) any information known to the Receiving Party prior to the 8 disclosure or obtained by the Receiving Party after the disclosure from a 9 source who obtained the information lawfully and under no obligation of 10 confidentiality to the Designating Party. 11 Any use of Protected Material at trial shall be governed by the orders of the 12 trial judge and other applicable authorities. This Order does not limit the use of 13 Protected Material at trial. This Order does not govern material used at trial. 14 6. DURATION 15 Once a case proceeds to trial, information that was designated as 16 CONFIDENTIAL or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 17 ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” or maintained 18 pursuant to this protective order that is used or introduced as an exhibit at trial 19 becomes public and will be presumptively available to all members of the public, 20 including the press, unless compelling reasons supported by specific factual 21 findings to proceed otherwise are made to the trial judge in advance of the trial. 22 23 See Kamakana,

(distinguishing “good cause” showing for 24 sealing documents produced in discovery from “compelling reasons” standard 25 when merits-related documents are part of court record). 26 7. DESIGNATING PROTECTED MATERIAL 27 7.1 Exercise of Restraint and Care in Designating Material for 28 Protection. Each Party or Non-Party that designates information or items for 1 protection under this Order must take care to limit any such designation to 2 specific material that qualifies under the appropriate standards. The 3 Designating Party must designate for protection only those parts of material, 4 documents, items or oral or written communications that qualify so that 5 other portions of the material, documents, items or communications for 6 which protection is not warranted are not swept unjustifiably within the 7 ambit of this Order. 8 Mass, indiscriminate or routinized designations are prohibited. 9 Designations that are shown to be clearly unjustified or that have been made 10 for an improper purpose (e.g., to unnecessarily encumber the case 11 development process or to impose unnecessary expenses and burdens on 12 other parties) may expose the Designating Party to sanctions. 13 If it comes to a Designating Party’s attention that information or items 14 that it designated for protection do not qualify for protection, that 15 Designating Party must promptly notify all other Parties that it is 16 withdrawing the inapplicable designation. 17 7.2 Manner and Timing of Designations. Except as otherwise 18 provided in this Order, or as otherwise stipulated or ordered, Disclosure of 19 Discovery Material that qualifies for protection under this Order must be 20 clearly so designated before the material is disclosed or produced. 21 Designation in conformity with this Order requires: 22 23 (a) for information in documentary form (e.g., paper or 24 electronic documents, but excluding transcripts of depositions or other 25 pretrial or trial proceedings), that the Producing Party affix at a 26 minimum, the legend “CONFIDENTIAL” or “HIGHLY 27 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 28 CONFIDENTIAL – SOURCE CODE” (hereinafter 1 “CONFIDENTIAL legend”), to each page that contains protected 2 material. If only a portion of the material on a page qualifies for 3 protection, the Producing Party also must clearly identify the 4 protected portion(s) (e.g., by making appropriate markings in the 5 margins). 6 A Party or Non-Party that makes original documents available 7 for inspection need not designate them for protection until after the 8 inspecting Party has indicated which documents it would like copied 9 and produced. During the inspection and before the designation, all of 10 the material made available for inspection shall be deemed “HIGHLY 11 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 12 inspecting Party has identified the documents it wants copied and 13 produced, the Producing Party must determine which documents, or 14 portions thereof, qualify for protection under this Order. Then, before 15 producing the specified documents, the Producing Party must affix the 16 appropriate “protection legend” to each page that contains Protected 17 Material. If only a portion of the material on a page qualifies for 18 protection, the Producing Party also must clearly identify the 19 protected portion(s) (e.g., by making appropriate markings in the 20 margins) and specify the level of protection being asserted. 21 (b) for testimony given in depositions that the Designating 22 23 Party identifies the Disclosure or Discovery Material on the record, 24 before the close of the deposition all protected testimony. 25 (c) for information produced in some form other than 26 documentary and for any other tangible items, that the Producing 27 Party affix in a prominent place on the exterior of the container or 28 containers in which the information is stored the appropriate 1 “protection legend.” If only a portion or portions of the information 2 warrants protection, the Producing Party, to the extent practicable, 3 shall identify the protected portion(s) and specify the level of 4 protection being asserted. 5 7.3 Inadvertent Failures to Designate. If timely corrected, an 6 inadvertent failure to designate qualified information or items does not, 7 standing alone, waive the Designating Party’s right to secure protection 8 under this Order for such material. Upon timely correction of a designation, 9 the Receiving Party must make reasonable efforts to assure that the material 10 is treated in accordance with the provisions of this Order. 11 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS 12 8.1. Timing of Challenges. Any Party or Non-Party may challenge a 13 designation of confidentiality at any time that is consistent with the Court’s 14 Scheduling Order. 15 8.2 Meet and Confer. The Challenging Party shall initiate the 16 dispute resolution process under Local Rule 37-1 et seq. 17 8.3 Joint Stipulation. Any challenge submitted to the Court shall be 18 via a joint stipulation pursuant to Local Rule 37-2. 19 8.4 The burden of persuasion in any such challenge proceeding 20 shall be on the Designating Party. Frivolous challenges, and those made for 21 an improper purpose (e.g., to harass or impose unnecessary expenses and 22 23 burdens on other parties) may expose the Challenging Party to sanctions. 24 Unless the Designating Party has waived or withdrawn the confidentiality 25 designation, all parties shall continue to afford the material in question the 26 level of protection to which it is entitled under the Producing Party’s 27 designation until the Court rules on the challenge. 28 1 9. ACCESS TO AND USE OF PROTECTED MATERIAL 2 9.1 Basic Principles. A Receiving Party may use Protected Material 3 that is disclosed or produced by another Party or by a Non-Party in 4 connection with this Action only for prosecuting, defending or attempting to 5 settle this Action. Such Protected Material may be disclosed only to the 6 categories of persons and under the conditions described in this Order. When 7 the Action has been terminated, a Receiving Party must comply with the 8 provisions of paragraph 16 below (FINAL DISPOSITION). 9 Protected Material must be stored and maintained by a Receiving 10 Party at a location and in a secure manner that ensures that access is limited 11 to the persons authorized under this Order. 12 9.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 13 otherwise ordered by the court or permitted in writing by the Designating 14 Party, a Receiving Party may disclose any information or item designated 15 “CONFIDENTIAL” only to: 16 (a) the Receiving Party’s Outside Counsel of Record in this 17 Action, as well as employees of said Outside Counsel of Record to 18 whom it is reasonably necessary to disclose the information for this 19 Action; 20 (b) the officers, directors, and employees (including House 21 Counsel) of the Receiving Party to whom disclosure is reasonably 22 23 necessary for this Action; 24 (c) Experts (as defined in this Order) of the Receiving Party to 25 whom disclosure is reasonably necessary for this Action and who 26 have signed the “Acknowledgment and Agreement to Be Bound” 27 (Exhibit A); 28 (d) the court and its personnel; 1 (e) court reporters and their staff; 2 (f) professional jury or trial consultants, mock jurors, and 3 Professional Vendors to whom disclosure is reasonably necessary for 4 this Action and who have signed the “Acknowledgment and 5 Agreement to Be Bound” (Exhibit A); 6 (g) the author or recipient of a document containing the 7 information or a custodian or other person who otherwise possessed or 8 knew the information; 9 (h) during their depositions, witnesses, and attorneys for 10 witnesses, in the Action to whom disclosure is reasonably necessary 11 provided: (1) the deposing party requests that the witness sign the 12 form attached as Exhibit A hereto; and (2) they will not be permitted 13 to keep any confidential information unless they sign the 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 15 otherwise agreed by the Designating Party or ordered by the court. 16 Pages of transcribed deposition testimony or exhibits to depositions 17 that reveal Protected Material may be separately bound by the court 18 reporter and may not be disclosed to anyone except as permitted under 19 this Stipulated Protective Order; and 20 (i) any mediators or settlement officers and their supporting 21 personnel, mutually agreed upon by any of the parties engaged in 22 23 settlement discussions. 24 9.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ 25 EYES ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” 26 Information or Items. Unless otherwise ordered by the court or permitted in 27 writing by the Designating Party, a Receiving Party may disclose any 28 information or item designated “HIGHLY CONFIDENTIAL – 1 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 2 CODE” only to: 3 (a) the Receiving Party’s Outside Counsel of Record in this 4 action, as well as employees of said Outside Counsel of Record to 5 whom it is reasonably necessary to disclose the information for this 6 litigation; 7 (b) Experts of the Receiving Party to whom disclosure is 8 reasonably necessary for this litigation, and who have signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (c) the court and its personnel; 11 (d) court reporters and their staff; 12 (e) professional jury or trial consultants, mock jurors, and 13 Professional Vendors to whom disclosure is reasonably necessary for 14 this Action and who have signed the “Acknowledgment and 15 Agreement to Be Bound” (Exhibit A); 16 (f) the author or recipient of a document containing the 17 information or a custodian or other person who otherwise possessed or 18 knew the information; 19 (g) during their depositions, witnesses, and attorneys for 20 witnesses, in the Action to whom disclosure is reasonably necessary 21 provided: (1) the deposing party requests that the witness sign the 22 23 form attached as Exhibit A hereto; and (2) they will not be permitted 24 to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless 26 otherwise agreed by the Designating Party or ordered by the court. 27 Pages of transcribed deposition testimony or exhibits to depositions 28 that reveal Protected Material may be separately bound by the court 1 reporter and may not be disclosed to anyone except as permitted under 2 this Stipulated Protective Order; and 3 (h) any mediators or settlement officers and their supporting 4 personnel, mutually agreed upon by any of the parties engaged in 5 settlement discussions. 6 10. SOURCE CODE 7 (a) To the extent production of source code becomes necessary in 8 this case, a Producing Party may designate source code as “HIGHLY 9 CONFIDENTIAL - SOURCE CODE” if it comprises or includes 10 confidential, proprietary or trade secret source code. 11 (b) Any source code produced in discovery shall be made available 12 for inspection, in a format allowing it to be reasonably reviewed, during 13 normal business hours or at other mutually agreeable times. The source code 14 shall be made available for inspection on a secured computer in a secured 15 room without Internet access or network access to other computers, and the 16 Receiving Party shall not print, photograph, copy, remove, or otherwise 17 transfer any portion of the source code onto any recordable media or 18 recordable device. The Producing Party or its representative(s) may visually 19 monitor the activities of the Receiving Party’s representatives during any 20 source code review, but only to ensure that there is no unauthorized 21 recording, copying, or transmission of the source code. 22 23 (c) The Receiving Party may request paper copies of limited 24 portions of source code that are reasonably necessary for the preparation of 25 court filings, pleadings, expert reports, or other papers, or for deposition or 26 trial, but shall not request paper copies for the purposes of reviewing the 27 source code other than electronically as set forth in subparagraph (b) in the 28 first instance. The Producing Party shall provide all such source code in 1 paper form including bates numbers and the label “HIGHLY 2 CONFIDENTIAL - SOURCE CODE” (if appropriate, pursuant to Paragraph 3 10(a)). The Producing Party may challenge the amount of source code 4 requested in hard copy form pursuant to the dispute resolution procedure and 5 timeframes set forth in paragraph 8 whereby the Producing Party is the 6 “Challenging Party” and the Receiving Party is the “Designating Party” for 7 purposes of dispute resolution. 8 (d) The Receiving Party shall ensure that only those individuals 9 authorized under this Protective Order to review HIGHLY 10 CONFIDENTIAL – SOURCE CODE material are given access to the 11 source code and only to the minimal extent necessary. The Receiving Party 12 shall maintain a record of any individual who has inspected any portion of 13 the source code in electronic or paper form. The Receiving Party shall 14 maintain all paper copies of any printed portions of the source code in a 15 secured, locked area. The Receiving Party shall not create any electronic or 16 other images of the paper copies and shall not convert any of the information 17 contained in the paper copies into any electronic format. The Receiving 18 Party shall only make additional paper copies if such additional copies are 19 (1) necessary to prepare court filings, pleadings, or other papers (including a 20 testifying expert’s expert report), (2) necessary for deposition, or (3) 21 otherwise necessary for the preparation of its case. Any paper copies used 22 23 during a deposition shall be retrieved by the Producing Party at the end of 24 each day and must not be given to or left with a court reporter or any other 25 unauthorized individual. 26 27 28 1 11. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 2 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” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must: 7 (a) promptly notify in writing the Designating Party. Such notification 8 shall include a copy of the subpoena or court order; 9 (b) promptly notify in writing the party who caused the subpoena or 10 order to issue in the other litigation that some or all of the material covered 11 by the subpoena or order is subject to this Protective Order. Such 12 notification shall include a copy of this Stipulated Protective Order; and 13 (c) cooperate with respect to all reasonable procedures sought to be 14 pursued by the Designating Party whose Protected Material may be affected. 15 If the Designating Party timely seeks a protective order, the Party served 16 with the subpoena or court order shall not produce any information 17 designated in this action as “CONFIDENTIAL” or “HIGHLY 18 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY 19 CONFIDENTIAL – SOURCE CODE” before a determination by the court 20 from which the subpoena or order issued, unless the Party has obtained the 21 Designating Party’s permission. The Designating Party shall bear the burden 22 23 and expense of seeking protection in that court of its confidential material 24 and nothing in these provisions should be construed as authorizing or 25 encouraging a Receiving Party in this Action to disobey a lawful directive 26 from another court. 27 28 1 12. 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 4 a Non-Party in this Action and designated as “CONFIDENTIAL” or 5 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or 6 “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such information 7 produced by Non-Parties in connection with this litigation is protected by the 8 remedies and relief provided by this Order. Nothing in these provisions 9 should be construed as prohibiting a Non-Party from seeking additional 10 protections. 11 (b) In the event that a Party is required, by a valid discovery request, 12 to produce a Non-Party’s confidential information in its possession, and the 13 Party is subject to an agreement with the Non-Party not to produce the Non- 14 Party’s confidential information, then the Party shall: (1) promptly notify in 15 writing the Requesting Party and the Non-Party that some or all of the 16 information requested is subject to a confidentiality agreement with a Non- 17 Party; (2) promptly provide the Non-Party with a copy of the Stipulated 18 Protective Order in this Action, the relevant discovery request(s), and a 19 reasonably specific description of the information requested; and (3) make 20 the information requested available for inspection by the Non-Party, if 21 requested. 22 23 (c) If the Non-Party fails to seek a protective order from this court 24 within 14 days of receiving the notice and accompanying information, the 25 Receiving Party may produce the Non-Party’s confidential information 26 responsive to the discovery request. If the Non-Party timely seeks a 27 protective order, the Receiving Party shall not produce any information in its 28 possession or control that is subject to the confidentiality agreement with the 1 Non-Party before a determination by the court. Absent a court order to the 2 contrary, the Non-Party shall bear the burden and expense of seeking 3 protection in this court of its Protected Material. 4 13. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 5 If a Receiving Party learns that, by inadvertence or otherwise, it has 6 disclosed Protected Material to any person or in any circumstance not authorized 7 under this Stipulated Protective Order, the Receiving Party must immediately (a) 8 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 9 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 10 the person or persons to whom unauthorized disclosures were made of all the terms 11 of this Order, and (d) request such person or persons to execute the 12 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A. 13 14. INADVERTENT PRODUCTION OF PRIVILEGED OROTHERWISE 14 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 17 protection, the obligations of the Receiving Parties are those set forth in Federal 18 Rule of Civil\ Procedure 26(b)(5)(B). This provision is not intended to modify 19 whatever procedure may be established in an e-discovery order that provides for 20 production without prior privilege review. Pursuant to Federal Rule of Evidence 21 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure 22 23 of a communication or information covered by the attorney-client privilege or 24 work product protection, the parties may incorporate their agreement in the 25 stipulated protective order submitted to the court. 26 15. MISCELLANEOUS 27 15.1 Right to Further Relief. Nothing in this Order abridges the right 28 of any person to seek its modification by the Court in the future. 1 15.2 Right to Assert Other Objections. By stipulating to the entry of 2 this Protective Order, no Party waives any right it otherwise would have to 3 object to disclosing or producing any information or item on any ground not 4 addressed in this Stipulated Protective Order. Similarly, no Party waives any 5 right to object on any ground to use in evidence of any of the material 6 covered by this Protective Order. 7 15.3 Filing Protected Material. A Party that seeks to file under seal 8 any Protected Material must comply with Local Civil Rule 79-5. Protected 9 Material may only be filed under seal pursuant to a court order authorizing 10 the sealing of the specific Protected Material. If a Party’s request to file 11 Protected Material under seal is denied by the court, then the Receiving 12 Party may file the information in the public record unless otherwise 13 instructed by the court. 14 16. FINAL DISPOSITION 15 After the final disposition of this Action, as defined in paragraph 6, within 16 60 days of a written request by the Designating Party, each Receiving Party must 17 return all Protected Material to the Producing Party or destroy such material. As 18 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 23 not the same person or entity, to the Designating Party) by the 60-day deadline that 24 (1) identifies (by category, where appropriate) all the Protected Material that was 25 returned or destroyed and (2) affirms that the Receiving Party has not retained any 26 copies, abstracts, compilations, summaries or any other format reproducing or 27 capturing any of the Protected Material. Notwithstanding this provision, Counsel 28 are entitled to retain an archival copy of all pleadings, motion papers, trial, 1 || deposition, and hearing transcripts, legal memoranda, correspondence, deposition 2 trial exhibits, expert reports, attorney work product, and consultant and expert 3 || work product, even if such materials contain Protected Material. Any such archival 4 |! copies that contain or constitute Protected Material remain subject to this > || Protective Order as set forth in paragraph 6 (DURATION). 6 VIOLATION Any violation of this Order may be punished by appropriate measures 8 including, without limitation, contempt proceedings and/or monetary sanctions. 9 10 Based upon the parties’ stipulation to the foregoing (Dkt. 140), and for good cause shown, IT IS SO ORDERED.

13 14 ||} DATED: August 20, 2019 □□ 15 16 D. EARLY - ited States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 20