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LEWIS BRISBOIS BISGAARD & SMITH LLP
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SHANE SINGH, SB# 202733
E-Mail: Shane.Singh@lewisbrisbois.com
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GRACE E. MEHTA, SB# 327676
E-Mail: Grace.Mehta@lewisbrisbois.com
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2020 West El Camino Avenue, Suite 700
Sacramento, California 95833
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Telephone: 916.564.5400
Facsimile: 916.564.5444
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Attorneys for Defendant, ASOMEO
ENVIRONMENTAL RESTORATION
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INDUSTRY, LLC
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SACRAMENTO
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JAY ROBINSON and HUGO PINEDA, CASE NO. 34-2019-00262942-CU-OE-GDS
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individually and on behalf of all others
similarly situated, STIPULATED PROTECTIVE ORDER
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Plaintiffs,
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BY FAX
Assigned For All Purposes:
Vs. Hon. Jill Talley Dept. 27
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ASOMEO ENVIRONMENTAL Action Filed: August 16, 2019
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RESTORATION INDUSTRY, LLC, a Trial Date: None Set
California Corporation and PHILLIPS &
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JORDAN INC., a North Carolina Corporation
and DOES 1-10,
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Defendants.
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Plaintiff HUGO PINEDA, Plaintiff JAY ROBINSON (collectively “Plaintiffs”),
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Defendant ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC, and Defendant
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PHILLIPS & JORDAN INC. (collectively “Defendants”) (hereinafter collectively “the Parties”
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and/or individually as “a Party”) to the above-referenced cases, known as Jay Robinson and Hugo
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Pineda v. Asomeo Environmental Restoration Industry LLC (Case No. 34-2019-00262942) by and
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through their respective counsel of record, in order to facilitate the exchange of information and
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documents which may be subject to confidentiality limitations on disclosure due to federal laws,
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state laws, and privacy rights, hereby stipulate as follows:
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L PURPOSES AND LIMITATIONS
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Disclosure and discovery activity in this action are likely to involve production of
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confidential, proprietary, or private information for which special protection from public
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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
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Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated
Protective Order. The parties acknowledge that this Order does not confer blanket protections on
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all disclosures or responses to discovery and that the protection it affords from public disclosure
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and use extends only to the limited information or items that are entitled to confidential treatment
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under the applicable legal principles. The parties further acknowledge, as set forth in Section 13.4,
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below, that this Stipulated Protective Order does not entitle them to file confidential information
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under seal.
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II. DEFINITIONS
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2.1 Challenging Party: a Party or Non-Party that challenges the designation of
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information or items under this Order.
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2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
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generated, stored or maintained) or tangible things that qualify for protection.
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2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
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well as their support staff).
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2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY
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CONFIDENTIAL — ATTORNEYS’ EYES ONLY” information in this matter.
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2.5 Designating Party: a Party or Non-Party that designates information or items that it
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produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE
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CODE.”
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2.6 Disclosure or Discovery Material: all items or information, regardless of the
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medium or manner in which it is generated, stored, or maintained (including, among other things,
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testimony, transcripts, and tangible things), that are produced or generated in disclosures or
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responses to discovery in this matter.
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2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to :
the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as
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a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s !
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competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or
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of a Party’s competitor.
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2.8 “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or
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Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
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Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
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less restrictive means.
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2.9 “HIGHLY CONFIDENTIAL — SOURCE CODE” Information or Items: extremely
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sensitive “Confidential Information or Items” representing computer code and associated
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comments and revision histories, formulas, engineering specifications, or schematics that define or
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otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure
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of which to another Party or Non-Party would create a substantial risk of serious harm that could
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not be avoided by less restrictive means.
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2.10 House Counsel: attorneys who are employees of a party to this action. House
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Counsel does not include Outside Counsel of Record or any other outside counsel.
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2.11 Non-Party: any natural person, partnership, corporation, association, or other legal
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entity not named as a Party to this action.
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2.12 Outside Counsel of Record: attorneys who are not employees of a party to this
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action but are retained to represent or advise a party to this action and have appeared in this action
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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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2.13 Party: any party to this action, including all of its officers, directors, employees,
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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Material in this action.
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2.15 Professional Vendors: persons or entities that provide litigation support services
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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
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organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
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2.16 Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or as
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“HIGHLY CONFIDENTIAL — SOURCE CODE.”
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2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a
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Producing Party.
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III. SCOPE
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3.1 The protections conferred by this Stipulation and Order cover not only Protected
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Material (as defined above), but also (1) any information copied or extracted from Protected
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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
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testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected
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Material. However, the protections conferred by this Stipulation and Order do not cover the
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following information: (a) any information that is in the public domain at the time of disclosure to
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a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
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a result of publication not involving a violation of this Order, including becoming part of the
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public record through trial or otherwise; and (b) any information known to the Receiving Party
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prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
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obtained the information lawfully and under no obligation of confidentiality to the Designating
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Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
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IV. DURATION
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4.1 Even after final disposition of this litigation, the confidentiality obligations
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imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing
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or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal
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of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein
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after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
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action, including the time limits for filing any motions or applications for extension of time
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pursuant to applicable law.
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V. DESIGNATING PROTECTED MATERIAL
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5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party
or Non-Party that designates information or items for protection under this Order must take care to
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limit any such designation to specific material that qualifies under the appropriate standards. To
the extent it is practical to do so, the Designating Party must designate for protection only those
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parts of material, documents, items, or oral or written communications that qualify — so that other
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portions of the material, documents, items, or communications for which protection is not
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warranted are not swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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unnecessarily encumber or retard the case development process or to impose unnecessary
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expenses and burdens on other parties) expose the Designating Party to sanctions.
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If it comes to a Designating Party’s attention that information or items that it designated
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for protection do not qualify for protection at all or do not qualify for the level of protection
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initially asserted, that Designating Party must promptly notify all other parties that it is
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withdrawing the mistaken designation.
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5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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Disclosure or Discovery. Material that qualifies for protection under this Order must be clearly so
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designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic documents, but
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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES
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ONLY” or “HIGHLY CONFIDENTIAL — SOURCE CODE” to each page that contains protected
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material. If only a portion or portions of the material on a page qualifies for protection, the
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Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
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markings in the margins) and must specify, for each portion, the level of protection being asserted.
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A Party or Non-Party that makes original documents or materials available for inspection _
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need not designate them for protection until after the inspecting Party has indicated which material
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it would like copied and produced. During the inspection and before the designation, all of the
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material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL —
ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
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copied and produced, the Producing Party must determine which documents, or portions thereof,
qualify for protection under this Order. Then, before producing the specified documents, the
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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
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CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE
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CODE) to each page that contains Protected Material. If only a portion or portions of the material
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on a page qualifies for protection, the Producing Party also must clearly identify the protected
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portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each
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portion, the level of protection being asserted.
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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
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Designating Party identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony and specify the level of protection being asserted. When it is
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impractical to identify separately each portion of testimony that is entitled to protection and it
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appears that substantial portions of the testimony may qualify for protection, the Designating Party
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may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
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to have up to 21 days to identify the specific portions of the testimony as to which protection is
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sought and to specify the level of protection being asserted. Only those portions of the testimony
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that are appropriately designated for protection within the 21 days shall be covered by the
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provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at
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the deposition or up to 21 days afterwards if that period is properly invoked, that the entire
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transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL —
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ATTORNEYS’ EYES ONLY.”
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Parties shall give the other parties notice if they reasonably expect a deposition, hearing or
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other proceeding to include Protected Material so that the other parties can ensure that only
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authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL'
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— ATTORNEYS’ EYES ONLY.”
Transcripts containing Protected Material shall have an obvious legend on the title page
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that the transcript contains Protected Material, and the title page shall be followed by a list of all
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pages (including line numbers as appropriate) that have been designated as Protected Material and
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the level of protection being asserted by the Designating Party. The Designating Party shall inform
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the court reporter of these requirements. Any transcript that is prepared before the expiration of a
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21-day period for designation shall be treated during that period as if it had been designated
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“HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” in its entirety unless otherwise
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agreed. After the expiration of that period, the transcript shall be treated only as actually
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designated.
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(c) for information produced in some form other than documentary and for any other
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tangible items, that the Producing Party affix in a prominent place on the exterior of the container
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or containers in which the information or item is stored the legend “CONFIDENTIAL” or
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“HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL —
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SOURCE CODE.” If only a portion or portions of the information or item warrant protection, the
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Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the
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level of protection being asserted.
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5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
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designate qualified information or items does not, standing alone, waive the Designating Party’s
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right to secure protection under this Order for such material. Upon timely correction of a
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designation, the Receiving Party must make reasonable efforts to assure that the material is treated
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in accordance with the provisions of this Order.
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VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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challenge a confidentiality designation by electing not to mount a challenge promptly after the
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original designation is disclosed.
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6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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process by providing written notice of each designation it is challenging and describing the basis
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for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
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notice must recite that the challenge to confidentiality is being made in accordance with this
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specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
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good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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forms of communication are not sufficient) within 14 days of the date of service of notice. In
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conferring, the Challenging Party must explain the basis for its belief that the confidentiality
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designation was not proper and must give the Designating Party an opportunity to review the
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designated material, to reconsider the circumstances, and, if no change in designation is offered, to
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explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of
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the challenge process only if it has engaged in this meet and confer process first or establishes that
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the Designating Party is unwilling to participate in the meet and confer process in a timely
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manner.
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6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court
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intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21
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days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and
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confer process will not resolve their dispute, whichever is earlier. Each such motion must be
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accompanied by a competent declaration affirming that the movant has complied with the meet
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and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
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make such a motion including the required declaration within 21 days (or 14 days, if applicable)
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shall automatically waive the confidentiality designation for each challenged designation. In
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addition, the Challenging Party may file a motion challenging a confidentiality designation at any
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time if there is good cause for doing so, including a challenge to the designation of a deposition
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transcript or any portions thereof. Any motion brought pursuant to this provision must be
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accompanied by a competent declaration affirming that the movant has complied with the meet
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and confer requirements imposed by the preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the Designating
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Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
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unnecessary expenses and burdens on other parties) may expose the Challenging Party to
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sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
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file a motion to retain confidentiality as described above, all parties shall continue to afford the
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material in question the level of protection to which it is entitled under the Producing Party’s
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designation until the court rules on the challenge.
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VII. ACCESS TO AND USE OF PROTECTED MATERIAL
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7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
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the categories of persons and under the conditions described in this Order. When the litigation has
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been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL
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DISPOSITION).
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Protected Material must be stored and maintained by a Receiving Party at a location and in
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a secure manner that ensures that access is limited to the persons authorized under this Order.
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7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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information or item designated “CONFIDENTIAL” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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information for this litigation and who have signed the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A;
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(b) the officers, directors, and employees (including House Counsel) of the Receiving
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Party to whom disclosure is reasonably necessary for this litigation and who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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reasonably necessary for this litigation and who have signed the “Acknowledgment and
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Agreement to Be Bound” (Exhibit A);
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(d) the court and its personnel;
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(e) court reporters and their staff, professional jury or trial consultants, and
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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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® during their depositions, witnesses in the action to whom disclosure is reasonably
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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
deposition testimony or exhibits to depositions that reveal Protected Material must be separately
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bound by the court reporter and may not be disclosed to anyone except as permitted under this
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Stipulated Protective Order.
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(2) the author or recipient of a document containing the information or a custodian or
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other person who otherwise possessed or knew the information.
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7.3 Disclosure of “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” and
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“HIGHLY CONFIDENTIAL — SOURCE CODE” Information or Items. Unless otherwise ordered
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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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information or item designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or
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“HIGHLY CONFIDENTIAL — SOURCE CODE” only to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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information for this litigation and who have signed the “Acknowledgment and Agreement to Be
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Bound” that is attached hereto as Exhibit A;
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(b) Designated House Counsel of the Receiving Party (1) who has no involvement in
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competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation,
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(3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to
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whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;
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(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for
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this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit :
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A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed;
(d) the court and its personnel;
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(e) court reporters and their staff, professional jury or trial consultants, and
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Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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63) the author or recipient of a document containing the information or a custodian or
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other person who otherwise possessed or knew the information.
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7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
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CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE
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CODE” Information or Items to Designated House Counsel or Experts.
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(a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating
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Party, a Party that seeks to disclose to Designated House Counsel any information or item that has
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been designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” pursuant to
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paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the
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full name of the Designated House Counsel and the city and state of his or her residence, and (2)
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describes the Designated House Counsel’s current and reasonably foreseeable future primary job
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duties and responsibilities in sufficient detail to determine if House Counsel is involved, or may
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become involved, in any competitive decision-making.
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(a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating
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Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item
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that has been designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or
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“HIGHLY CONFIDENTIAL — SOURCE CODE” pursuant to paragraph 7.3(c) first must make a
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written request to the Designating Party that (1) identifies the general categories of “HIGHLY
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CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE
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CODE” information that the Receiving Party seeks permission to disclose to the Expert, (2) sets
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forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches
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a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) identifies
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each person or entity from whom the Expert has received compensation or funding for work in his :
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or her areas of expertise or to whom the expert has provided professional services, including in
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connection with a litigation, at any time during the preceding five years, and (6) identifies (by
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name and number of the case, filing date, and location of court) any litigation in connection with
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which the Expert has offered expert testimony, including through a declaration, report, or
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testimony at a deposition or trial, during the preceding five years.
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(b) A Party that makes a request and provides the information specified in the
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preceding respective paragraphs may disclose the subject Protected Material to the identified
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Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party
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receives a written objection from the Designating Party. Any such objection must set forth in
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detail the grounds on which it is based.
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(c) A Party that receives a timely written objection must meet and confer with the
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Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
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agreement within seven days of the written objection. If no agreement is reached, the Party
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LEWIS BRISBOIS BISGAARD & SMITH LLP - SHANE SINGH, SB# 202733 E-Mail: Shane.Singh@lewisbrisbois.com N GRACE E. MEHTA, SB# 327676 E-Mail: Grace.Mehta@lewisbrisbois.com W 2020 West El Camino Avenue, Suite 700 Sacramento, California 95833 A Telephone: 916.564.5400 Facsimile: 916.564.5444 N Attorneys for Defendant, ASOMEO ENVIRONMENTAL RESTORATION 9N INDUSTRY, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA o COUNTY OF SACRAMENTO e =S e JAY ROBINSON and HUGO PINEDA, CASE NO. 34-2019-00262942-CU-OE-GDS e N individually and on behalf of all others similarly situated, STIPULATED PROTECTIVE ORDER e W Plaintiffs, e R BY FAX Assigned For All Purposes: Vs. Hon. Jill Talley Dept. 27 e SN ASOMEO ENVIRONMENTAL Action Filed: August 16, 2019 e RESTORATION INDUSTRY, LLC, a Trial Date: None Set California Corporation and PHILLIPS & e JORDAN INC., a North Carolina Corporation and DOES 1-10, e O Defendants. o N =S Plaintiff HUGO PINEDA, Plaintiff JAY ROBINSON (collectively “Plaintiffs”), N Defendant ASOMEO ENVIRONMENTAL RESTORATION INDUSTRY LLC, and Defendant N WN PHILLIPS & JORDAN INC. (collectively “Defendants”) (hereinafter collectively “the Parties” N and/or individually as “a Party”) to the above-referenced cases, known as Jay Robinson and Hugo N A Pineda v. Asomeo Environmental Restoration Industry LLC (Case No. 34-2019-00262942) by and N N through their respective counsel of record, in order to facilitate the exchange of information and N A documents which may be subject to confidentiality limitations on disclosure due to federal laws, N N state laws, and privacy rights, hereby stipulate as follows: LEWIS N @ BRISBOIS BISGAARD 133758037.1 1 &SVIHLLP ATIORNEYS AT LAW STIPULATED PROTECTIVE ORDER L PURPOSES AND LIMITATIONS - Disclosure and discovery activity in this action are likely to involve production of N confidential, proprietary, or private information for which special protection from public W disclosure and from use for any purpose other than prosecuting this litigation may be warranted. R Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on N all disclosures or responses to discovery and that the protection it affords from public disclosure 9 and use extends only to the limited information or items that are entitled to confidential treatment 0 under the applicable legal principles. The parties further acknowledge, as set forth in Section 13.4, o below, that this Stipulated Protective Order does not entitle them to file confidential information e =S under seal. em II. DEFINITIONS em N 2.1 Challenging Party: a Party or Non-Party that challenges the designation of em AW information or items under this Order. m 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is em SN generated, stored or maintained) or tangible things that qualify for protection. m 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as mm O well as their support staff). o 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY =m0 CONFIDENTIAL — ATTORNEYS’ EYES ONLY” information in this matter. N 2.5 Designating Party: a Party or Non-Party that designates information or items that it N produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY N WN CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE N CODE.” N A 2.6 Disclosure or Discovery Material: all items or information, regardless of the N N medium or manner in which it is generated, stored, or maintained (including, among other things, N A testimony, transcripts, and tangible things), that are produced or generated in disclosures or I N responses to discovery in this matter. LEWIS N @ BRISBOIS BISGAARD 133758037.1 2 &SVIHLLP ATIORNEYS AT LAW STIPULATED PROTECTIVE ORDER 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to : the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as N a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s ! W competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or A of a Party’s competitor. U 2.8 “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or &N Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another N Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 0 less restrictive means. o 2.9 “HIGHLY CONFIDENTIAL — SOURCE CODE” Information or Items: extremely e e sensitive “Confidential Information or Items” representing computer code and associated ek comments and revision histories, formulas, engineering specifications, or schematics that define or e N otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure e AW of which to another Party or Non-Party would create a substantial risk of serious harm that could e not be avoided by less restrictive means. o SN 2.10 House Counsel: attorneys who are employees of a party to this action. House e Counsel does not include Outside Counsel of Record or any other outside counsel. e NN 2.11 Non-Party: any natural person, partnership, corporation, association, or other legal o entity not named as a Party to this action. O 2.12 Outside Counsel of Record: attorneys who are not employees of a party to this N S action but are retained to represent or advise a party to this action and have appeared in this action N e on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. N WN 2.13 Party: any party to this action, including all of its officers, directors, employees, N consultants, retained experts, and Outside Counsel of Record (and their support staffs). N A 2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery N N Material in this action. N A 2.15 Professional Vendors: persons or entities that provide litigation support services I N (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and LEWIS BN @ BRISBOIS BISGAARD 133758037.1 3 &SVIHLLP ATIORNEYS AT LAW STIPULATED PROTECTIVE ORDER organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. WN 2.16 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or as A “HIGHLY CONFIDENTIAL — SOURCE CODE.” W 2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a A Producing Party. a9 III. SCOPE 0 3.1 The protections conferred by this Stipulation and Order cover not only Protected o Material (as defined above), but also (1) any information copied or extracted from Protected e s Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any e = testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected e RN Material. However, the protections conferred by this Stipulation and Order do not cover the e following information: (a) any information that is in the public domain at the time of disclosure to e a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as e SN a result of publication not involving a violation of this Order, including becoming part of the e public record through trial or otherwise; and (b) any information known to the Receiving Party e g prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who o obtained the information lawfully and under no obligation of confidentiality to the Designating o= Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. N W=D IV. DURATION N 4.1 Even after final disposition of this litigation, the confidentiality obligations N imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing N or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal N A of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein N N after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this AN N action, including the time limits for filing any motions or applications for extension of time N N pursuant to applicable law. LEWIS BN @ BRISBOIS 133758037.1 4 &SMMHLP ATIORNEYS AT LAW STIPULATED PROTECTIVE ORDER 1i V. DESIGNATING PROTECTED MATERIAL - 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to AW limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only those N parts of material, documents, items, or oral or written communications that qualify — so that other N portions of the material, documents, items, or communications for which protection is not N warranted are not swept unjustifiably within the ambit of this Order. 0 Mass, indiscriminate, or routinized designations are prohibited. Designations that are o shown to be clearly unjustified or that have been made for an improper purpose (e.g., to e =S unnecessarily encumber or retard the case development process or to impose unnecessary em expenses and burdens on other parties) expose the Designating Party to sanctions. em N If it comes to a Designating Party’s attention that information or items that it designated em W for protection do not qualify for protection at all or do not qualify for the level of protection m R initially asserted, that Designating Party must promptly notify all other parties that it is em withdrawing the mistaken designation. em NS 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order m (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, o Disclosure or Discovery. Material that qualifies for protection under this Order must be clearly so = S0 designated before the material is disclosed or produced. N Designation in conformity with this Order requires: N = (a) for information in documentary form (e.g., paper or electronic documents, but N N excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party N W affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES N A ONLY” or “HIGHLY CONFIDENTIAL — SOURCE CODE” to each page that contains protected N N material. If only a portion or portions of the material on a page qualifies for protection, the AN N Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate N N markings in the margins) and must specify, for each portion, the level of protection being asserted. LEWIS N W BRISBOIS BISGAARD 133758037.1 5 &SVIHLLP ATTORNEYS AT LAW STIPULATED. PROTECTIVE ORDER H i A Party or Non-Party that makes original documents or materials available for inspection _ - need not designate them for protection until after the inspecting Party has indicated which material N it would like copied and produced. During the inspection and before the designation, all of the AW material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants M copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the N Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 0 CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE o CODE) to each page that contains Protected Material. If only a portion or portions of the material e =D on a page qualifies for protection, the Producing Party also must clearly identify the protected ek portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each ek NN portion, the level of protection being asserted. e W (b) for testimony given in deposition or in other pretrial or trial proceedings, that the R e Designating Party identify on the record, before the close of the deposition, hearing, or other o SN proceeding, all protected testimony and specify the level of protection being asserted. When it is o impractical to identify separately each portion of testimony that is entitled to protection and it o 0O appears that substantial portions of the testimony may qualify for protection, the Designating Party o may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right o to have up to 21 days to identify the specific portions of the testimony as to which protection is N =D sought and to specify the level of protection being asserted. Only those portions of the testimony N that are appropriately designated for protection within the 21 days shall be covered by the N N provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at N W the deposition or up to 21 days afterwards if that period is properly invoked, that the entire AEa N transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — N W ATTORNEYS’ EYES ONLY.” N & Parties shall give the other parties notice if they reasonably expect a deposition, hearing or I N other proceeding to include Protected Material so that the other parties can ensure that only LEWIS N R BRISBOIS BISGAARD 133758037.1 6 &SVIHLLP ATIORNEYS AT LAW! STIPULATED PROTECTIVE ORDER \ authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” - (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL' AW — ATTORNEYS’ EYES ONLY.” Transcripts containing Protected Material shall have an obvious legend on the title page W that the transcript contains Protected Material, and the title page shall be followed by a list of all A pages (including line numbers as appropriate) that have been designated as Protected Material and N the level of protection being asserted by the Designating Party. The Designating Party shall inform 0 the court reporter of these requirements. Any transcript that is prepared before the expiration of a o 21-day period for designation shall be treated during that period as if it had been designated e = “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” in its entirety unless otherwise e agreed. After the expiration of that period, the transcript shall be treated only as actually e N designated. W e (c) for information produced in some form other than documentary and for any other e R tangible items, that the Producing Party affix in a prominent place on the exterior of the container e N or containers in which the information or item is stored the legend “CONFIDENTIAL” or e “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — NN e SOURCE CODE.” If only a portion or portions of the information or item warrant protection, the o Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the e o level of protection being asserted. N =S 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to N designate qualified information or items does not, standing alone, waive the Designating Party’s N WN right to secure protection under this Order for such material. Upon timely correction of a N designation, the Receiving Party must make reasonable efforts to assure that the material is treated N A in accordance with the provisions of this Order. N N VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS N 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 9 N confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality LEWIS N @ BRISBOIS 133758037.1 7 &SMIHLP ¢! ATIORNEYS AT LAW STIPULATED PROTECTIVE ORDER designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic e burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to N challenge a confidentiality designation by electing not to mount a challenge promptly after the W original designation is disclosed. A 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution W process by providing written notice of each designation it is challenging and describing the basis N for each challenge. To avoid ambiguity as to whether a challenge has been made, the written N notice must recite that the challenge to confidentiality is being made in accordance with this 0 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in o good faith and must begin the process by conferring directly (in voice to voice dialogue; other e = forms of communication are not sufficient) within 14 days of the date of service of notice. In ek conferring, the Challenging Party must explain the basis for its belief that the confidentiality e N designation was not proper and must give the Designating Party an opportunity to review the W e designated material, to reconsider the circumstances, and, if no change in designation is offered, to e R explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of e the challenge process only if it has engaged in this meet and confer process first or establishes that e NN the Designating Party is unwilling to participate in the meet and confer process in a timely e manner. e 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court o intervention, the Designating Party shall file and serve a motion to retain confidentiality within 21 D N days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and =R N confer process will not resolve their dispute, whichever is earlier. Each such motion must be N N accompanied by a competent declaration affirming that the movant has complied with the meet N AW and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to N make such a motion including the required declaration within 21 days (or 14 days, if applicable) N N shall automatically waive the confidentiality designation for each challenged designation. In N N addition, the Challenging Party may file a motion challenging a confidentiality designation at any N N time if there is good cause for doing so, including a challenge to the designation of a deposition LEWIS BN @ BRISBOIS 133758037.1 8 &SMIH LLP ATIORNEYS AT LAW STIPULATED PROTECTIVE ORDER transcript or any portions thereof. Any motion brought pursuant to this provision must be - accompanied by a competent declaration affirming that the movant has complied with the meet N and confer requirements imposed by the preceding paragraph. W The burden of persuasion in any such challenge proceeding shall be on the Designating R Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose W unnecessary expenses and burdens on other parties) may expose the Challenging Party to N sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 9 file a motion to retain confidentiality as described above, all parties shall continue to afford the ® material in question the level of protection to which it is entitled under the Producing Party’s o designation until the court rules on the challenge. e = VII. ACCESS TO AND USE OF PROTECTED MATERIAL ek 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or ek N produced by another Party or by a Non-Party in connection with this case only for prosecuting, e W defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to R e the categories of persons and under the conditions described in this Order. When the litigation has e SN been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL e DISPOSITION). NN e Protected Material must be stored and maintained by a Receiving Party at a location and in o a secure manner that ensures that access is limited to the persons authorized under this Order. o= =S 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered N by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any N information or item designated “CONFIDENTIAL” only to: N WN (a) the Receiving Party’s Outside Counsel of Record in this action, as well as N employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the N A information for this litigation and who have signed the “Acknowledgment and Agreement to Be N N Bound” that is attached hereto as Exhibit A; N (b) the officers, directors, and employees (including House Counsel) of the Receiving N N Party to whom disclosure is reasonably necessary for this litigation and who have signed the LEWIS N @ BRISBOIS 133758037.1 9 &SMIHLLP ATIORNEYS AT LAW STIPULATED PROTEQTIVE ORDER “Acknowledgment and Agreement to Be Bound” (Exhibit A); = (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is N reasonably necessary for this litigation and who have signed the “Acknowledgment and W Agreement to Be Bound” (Exhibit A); A (d) the court and its personnel; W (e) court reporters and their staff, professional jury or trial consultants, and A Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have N signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 0 ® during their depositions, witnesses in the action to whom disclosure is reasonably o necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), e =S emk unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately m N bound by the court reporter and may not be disclosed to anyone except as permitted under this m W Stipulated Protective Order. m R (2) the author or recipient of a document containing the information or a custodian or m SN other person who otherwise possessed or knew the information. om 7.3 Disclosure of “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” and o 0NN “HIGHLY CONFIDENTIAL — SOURCE CODE” Information or Items. Unless otherwise ordered s by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any O o= information or item designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or DS N “HIGHLY CONFIDENTIAL — SOURCE CODE” only to: N = (a) the Receiving Party’s Outside Counsel of Record in this action, as well as N WN employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the N information for this litigation and who have signed the “Acknowledgment and Agreement to Be N A Bound” that is attached hereto as Exhibit A; N N (b) Designated House Counsel of the Receiving Party (1) who has no involvement in N N competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, I N (3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to LEWIS BN @ BRISBOIS 133758037.1 10 &SMIHLLP ATIORNEYS AT LAW STIPULATED PROTECTIVE ORDER whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed; - (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for N this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit : AW A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed; (d) the court and its personnel; W (e) court reporters and their staff, professional jury or trial consultants, and & Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have N signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 0 63) the author or recipient of a document containing the information or a custodian or o other person who otherwise possessed or knew the information. e =S 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY ek CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE ek N CODE” Information or Items to Designated House Counsel or Experts. e W (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating e R Party, a Party that seeks to disclose to Designated House Counsel any information or item that has ek NN been designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” pursuant to e paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the e 0NN full name of the Designated House Counsel and the city and state of his or her residence, and (2) o describes the Designated House Counsel’s current and reasonably foreseeable future primary job = o duties and responsibilities in sufficient detail to determine if House Counsel is involved, or may N =S become involved, in any competitive decision-making. N (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating N WN Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item N that has been designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or N A “HIGHLY CONFIDENTIAL — SOURCE CODE” pursuant to paragraph 7.3(c) first must make a N N written request to the Designating Party that (1) identifies the general categories of “HIGHLY N N CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE I N CODE” information that the Receiving Party seeks permission to disclose to the Expert, (2) sets LEWIS N W BRISBOIS 133758037.1 11 &SMIH LLP STIPULATED PROTECTIVE ORDER ATIORNEYS AT LAW forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches - a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) identifies N each person or entity from whom the Expert has received compensation or funding for work in his : W or her areas of expertise or to whom the expert has provided professional services, including in A connection with a litigation, at any time during the preceding five years, and (6) identifies (by O name and number of the case, filing date, and location of court) any litigation in connection with & which the Expert has offered expert testimony, including through a declaration, report, or 9 testimony at a deposition or trial, during the preceding five years. 0 (b) A Party that makes a request and provides the information specified in the o preceding respective paragraphs may disclose the subject Protected Material to the identified ) e Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party e R receives a written objection from the Designating Party. Any such objection must set forth in e S EEE S detail the grounds on which it is based. ek (c) A Party that receives a timely written objection must meet and confer with the N e Designating Party (through direct voice to voice dialogue) to try to resolve the matter by I e 7 agreement within seven days of the written objection. If no agreement is reached, the Party - e B