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NOTIEY
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR. COURT DEPARTMENT
CIVIL ACTION NO. 2384CV02397-BLS1
COMMONWEALTH OF MASSACHUSETTS,
Plaintiff,
v.
META PLATFORMS, INC. and
INSTAGRAM, LLC,
Defendants.
PROTECTIVE ORDER
Whereas certain discovery materials in this case may qualify as confidential or highly
confidential information, and to prevent undue disclosure of any such information, the
Commonwealth of Massachusetts (the “Commonwealth”) and Defendants Meta Platforms, Inc:
and Instagram LLC (“Meta”) (collectively, the “‘Parties”) have requested that the Court enter a
protective order; and whereas the Court has determined that the terms set forth herein are
appropriate to protect the respective interests of the Parties and third parties; accordingly, it is
HEREBY ORDERED:
L DEFINITIONS
1 Action: the above captioned action, bbe uding any amendments thereto
2. Aqog@pmerl Competitor: any apztsed.company that provides social media services,
or any company that reasonably may be considered to be in or as having plans to
enter into this area, or any of their current or former officers, directors, employees,
contractors, or agents. This definition is only for purposes of determining whether a
person serving as an Expert (as defined below) in this case is eligible to obtain access
to “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL” materials, and the parties
agree that this definition has no evidentiary value and will not be used by the Parties
or the Court for any substantive purposes in this case.
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
CONFIDENTIAL Information or Items: information (regardless of how it is
generated, stored, or maintained) or tangible things that qualify for protection under
Mass. R. Civ. P. Rule 26(c).
Counsel (without qualifier); Outside Counsel and In-House Counsel (as well as their
+
support staff). .
Designating Party: a Party or Non:Party that desigiiates inforination or tangible items
that itproduces in disclosures or in responses to discovery as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL.”
Disclosure or Discovery Material: all items or information, regardless of the medium
or manner in which it is generated, stored, or maintained including, among other
things, testimony, transcripts, and tangible things), that are produced or generated in
disclosures or responses to discovery in this matter.
Expert: a person who has (1) been retained by a Party or its Counsel to serve as an
expert witness or as an undisclosed consultant in this Action (as well as his or her
employees and support staff), (2) is not a current employee of a Party or of a Party’s
Sompetitor, and (3) at the time of retention, is not anticipated to become an employee
ofa Party or of a Party’s Sompetitr
9. HIGHLY CONFIDENTIAL Information or Items: Protected Material the disclosure
of which to another Party or Non-Party would create a substantial risk of serious harm
that could not be avoided by less restrictive means
10, In-House Counsel: attorneys who are employees of a Party to this Action, and their
support staff. In-House Counsel does not include Outside Counsel
IL Insurance Representative: An employee or outside counsel of a liability insurer who
may provide coverage to Defendants in this action, who has a need to know
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Protected Material in order to
fulfill a duty to defend or evaluate a potential coverage obligation, and whose need to
know “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Protected Material
cannot besatisfied by disclosure to apreviously authorized Insurance Representative.
For the avoidance of doubt, an Insurance Representative cannot use Protected*
Material for any other purpose. including but not limited to use in any other litigation
or arbitration proceeding
12. Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this Action.
13. Qutside Counsel: attorneys who are not employees of a Party to this Action but are
retained in this Action to represent or advise a Party to this Action and who have
signed the “Acknowledgement and Agreement to Be Bound” that is attached hereto as
-
ExhibitA, as well as their support staff to whom it is reasonably necessary to disclose
the information for this Action (including but not limited to attomeys, paralegals,
secretaries, law clerks, and investigators), provided that a supervising attorney
confirms in writing that their support staff agrees to adhere to the terms set forth in
the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
14. Party: any party to this Action, including all of its officers, directors, employees
(including In-House Counsel), and Outside Counsel (and their support staffs).
15. Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this Action.
16. Professional Vendors: persons or entities that provide litigation support services (e.g.,
photocopying, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees
and subcontractors.
17. Protected Material: any Disclosure orDiscovery Material that-is designated as"
. “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
18. Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
SCOPE
19, The protections conferred by this Order apply to not only Protected Material (as
defined above), but also to: (1) any information copied or extracted from Protected
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;
and (3) any oral, written, or electronic communications, testimony, or presentation by
Parties or their Counsel that might reveal Protected Material.
20. Data Security of Protected Material. Any Receiving Party or person in possession of
or transmitting another Party’s Protected Material and their Outside Counsel must
maintain an information security program consistent with standard industry practice,
and/or government industry standard practice as applicable to the Commonwealth,
that is designed to protect and secure the Protected Materia! from loss, misuse,
unauthorized access, unauthorized disclosure, and theft. To the extent a Receiving
Party or person does not have an information security program, a Receiving Party
may comply with this Data Security provision by having the Protected Material
maintained by and/or stored with a secure eDiscovery/litigation support site(s) or
claims administrator that maintains an information security Program that aligns with
standard industry practices and/or government industry standard practice as
applicable to the Commonwealth. Any Protected Material in paper format must be
maintained in a secure location with access limited to persons entitled to access the,
ProtectedMaterial under this Order. Protected Material shall not be copied or
-
otherwise reproduced by aReceiving Party, except for transmission to qualified
recipients, without the written permission of the Designating Party or by further order
of the Court. Ifa Receiving Party or any person in possession of or transmitting
another Party’s Protected Material discovers any loss of Protected Material or a
breach of security, including any actual or suspected unauthorized access relating to
another Party’s Protected Material, they shall comply with the “Unauthorized
Disclosure of Protected Material” provisions in Section X of this Order.
iil. DURATION
21. Even after final disposition of this Action, the confidentiality obligations imposed by
this Order shall remain in effect until a Designating Party agrees otherwise in writing,
or a court order otherwise directs. The Court retains jurisdiction even after
termination of this Action to enforce this Order and to make such amendments,
modifications, deletions, and additions to this Protective Order as the Court from time
to time deems appropriate.
Iv. DESIGNATING PROTECTED MATERIAL
22. Exercise of Restraint and Care in Designating Material for Protection. A Designating
Party shall use good faith in designating information as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL,” making such a designation only when there is a
legitimate reason for the restrictions on disclosure called for by the designation. The
Parties recognize this is a public enforcement lawsuit brought by the Commonwealth
to be conducted on the public record to the greatest extent possible. Designations that
are clearly unjustified or that have been made for an improper purpose (€.g., to
unnecessarily encumber or delay the case development process oF to impose
unnecessary expensés and burdens on other Parties) are prohibited. If itcomes to a
Designating Party’s attention that information or items that it designated for
protection do not qualify for protection at all or do not qualify for the level of
protection initially asserted, that Designating Party must promptly notify all other
Parties that it is withdrawing the inapplicable designation.
23. Manner and Timing of Designations. Except as otherwise provided in this Order or as
otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for
protection under this Order must he clearly so designated before the material is
disclosed or produced.
Designation in conformity with this Order requires:
(a) For information in documentary form (e.g., paper or electronic documents, but
excluding transcripts of depositions or other pretrial or trial proceedings), that
the Producing Party affixes the legend “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” to each page of a paper or electronic document that
contains Protected Material or to the cover page of bound or grouped material.
Electronic materials may be designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” Information by any method reasonably designed to alert
the Receiving Party that the information is “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” Information, such as, but not limited to, the subject line of
an e-mail containing such materials or, in the case of spreadsheets or other
documents not produced in paginated form, in a field in the overlay or in the
document’s file name. A Party or Non-Party thatmakes original documents or
materials available for inspection need not designate them for protection until
.
:
after the inspecting Party has indicated which material it would like copied :
and produced. During the inspection and before the designation, all of the
material made available for inspection shall be treated as “HIGHLY
CONFIDENTIAL” Information. After the inspecting Party has identified the
documents it wants 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 Producing Party must
affix “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” in accord with the
foregoing. A Party may designate documents produced by a Non-Party as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL?” if the documents
contain information for which that Party would have a right to apply the
proposed designation if produced by that Party, by notifying all other Parties
.
of the designation in writing within twenty-one (21) days after the production
of documents by the Non-Party. The deadline to designate Non-Party
materials may be extended by agreement of the Parties.
(b) For testimony given in deposition or in other pretrial proceedings, in the event
that a Producing Party designates a witness’s deposition or other testimony as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” the specific page and line
designations over which confidentiality is claimed must be provided to the
Receiving Party within thirty (30) days of receipt of the final transcript,
provided, however, that the Receiving Party will consider reasonable requests for
an extension of the deadline. Deposition testimony shall be treated as “HIGHLY
CONFIDENTIAL” pending the deadline. After the 30-day period, if no Party has
designated some or all of that deposition transcript as “CONFIDENTIAL* or
“HIGHLY CONFIDENTIAL” under this Protective Order, the entire deposition,
or those portions of the deposition not designated as confidential, will no longer
be considered confidential.
(c) For information produced in some form other than documentary and for any
other tangible items, that the Producing Party affixes, in a prominent place on the
exterior of the container or containers in which the information or item is stored,
the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If only a
portion or portions of the information or item warrant protection, the Producing
Party, to the extent practicable, shall identify the protected portion(s). A Party
may designate information produced by a Non-Party as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL? if the document contains information for which
that Party would have a right to apply the proposed designation if produced by
that Party, by notifying all other Parties of the designation in writing within
twenty-one (21) days after the production of information by the Non-Party. The
deadline to designate Non-Party materials may be extended by agreement of the
Parties,
24, Inadvertent Failures to Designate. Disclosure of “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL” Information does not, alone, waive the confidential status of such
information. The Parties shall use reasonable care in designating qualified material as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material. In the event that
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material is disclosed without.a
marking or designation ofit as such, the Party may- thereafter assert a claim or
designation of confidentiality if made within fourteen (14) days of becoming aware of
an inadvertent failure to designate and before such material isused in any substantial
way by the Receiving Party, and promptly provide replacement material with the
appropriate designation (and, if applicable, using the same Bates number as the
original production). Thereafter, the Receiving Party must immediately delete,
sequester, or return to the Producing Party the original “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL” material and all copies of the same and make no use of
such material. A recipient’s prior disclosure of newly designated “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL ” Material shall not violate this Order.
Vv, CHALLENGING CONFIDENTIALITY DESIGNATIONS
25. This Order sha!l not preclude any Party from bringing before the Court, at any time,
the question of whether any particular material is properly designated as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”. In its request for relief from
the Court, the Party disputing the designation of any material shall identify the
material that it believes is not properly designated. The Party asserting the propriety
of any designation has the burden to defend the designation.
26. Prior to filing with the Court any motion to dispute or uphold a designation, the
Parties shall meet and confer in good faith to attempt to resolve the dispute pursuant
to Massachusetts Superior Court Rules 9A and 9C,
27 If the dispute cannot be resolved, the Parties shall treat the information consistent
with its designation until a ruling by the Court.
28 Any person or entity receiving “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
material may use the procedures set forth in thissection to challenge the Designating _
Party’s confidentiality designation.
ACCESS TO AND USE OF PROTECTED MATERIAL
29. Basic Principles. Except as otherwise set out in this Order, a Receiving Party may use
Protected Material that is disclosed or produced by another Party or by a Non- Party
in connection with this case only for prosecuting, defending, or attempting to settle
this litigation, including any appeal(s) or as described in | 34. Such Protected
Material may be disclosed only to the categories of persons and under the conditions
described in this Order. When the litigation has been terminated, a Receiving Party
must comply with the provisions of Section XII below, to the extent permitted by
applicable law. Protected Material must be stored and maintained by a Receiving
Party, at a location, and in a secure manner that ensures that access is limited to the
persons authorized under this Order.
30. Disclosure of “CONFIDENTIAL” Information or Items. Unless required by law or
otherwise ordered herein or by further order of the Court or permitted in writing by
the Designating Party, a Receiving Party may disclose any material designated
“CONFIDENTIAL” only to:
(a) The Receiving Party;
(b) The Receiving Party’s Outside Counsel in this Action;
(c) Insurance Representatives to whom disclosure is reasonably necessary for this
Action and who have signed the “Acknowledgement and Agreement to Be
Bound” (Exhibit A);
(d) Experts (as defined in this Order) retained by the Receiving Party and their
staff @ to whom disclosure is reasonably necessary for this Action and @)
who have signed the “Acknowledgement and Agreement to Be Bourid”
(Exhibit A),
(e) The Court and its personnel, and any appellate court or other court (and their
personnel) before which the Parties appear in this Action;
(f) Court reporters, transcribers, videographers, and their staff
(g) Professional jury or trial consultants and mock jurors or focus group members
who have signed a confidentiality agreement, and Professional Vendors to
whom disclosure is reasonably necessary for this Action and whose
representative has signed the “Acknowledgement and Agreement to Be
Bound” (Exhibit A);
(h) Any mediator who is assigned to hear this Action, and his or her staff, who
have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit
A);
@ During their depositions or a hearing, or during preparations for the same,
witnesses in the Action and their attorneys to whom disclosure is reasonably
necessary and who have signed the “Acknowledgement and Agreement to Be
Bound” (Exhibit A), unless otherwise agreed to by the Designating Party or
ordered by the Court;
0) The author or recipient of a document containing the Protected Material or a
custodian or other person who otherwise possessed or personally knows the
information; :
(k) Any other person as to whor the Designating Party has consented to
disclosure in advance; and,
(1) Such other persons as the Parties may agree or as may be ordered by the Court
or as required by applicable law.
31. Disclosure of “HIGHLY CONFIDENTIAL” Information or Items. Unless required by
Jaw or otherwise ordered herein or by further order of the Court or permitted in
writing by the Designating Party, any material designated “HIGHLY
-
CONFIDENTIAL” may be disclosed only to
{a) The Receiving Party’s In-House Counsel;
(6) The Receiving Party’s Outside Counsel in this Action;
(c) Insurance Representatives to whom disclosure is reasonably necessary for this
Action and who have signed the “Acknowledgement and Agreement to Be
Bound” (Exhibit A);
(d) Experts (as defined in this Order) retained by the Receiving Party and their
staff (1) to whom disclosure is reasonably necessary for this Action, (2) who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
and (3) as to whom the procedures set forth in Paragraph 35 have been
followed;
(©) The Court and its personnel, and any appellate court or other court (and their
personnel) before which the Parties appear in this Action;
() Court reporters, transcribers, videographers, and their staff;
(g) Professional jury or trial consultants, mock jurors, and Professional Vendors to
whom disclosure is reasonably necessary for this Action and who have signed
the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(h) Any mediator who is assigned to hear this Action, and his or her staff, who
have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit
A);
@ During their depositions or a hearing, or during preparations for the same,
current and former employees of the Designating Party in this Action and their
attorneys to whom disclosure is reasonably necessary and who have signed
the “Acknowledgment and Agreement to Be Bound” (Exhibit A), provided
that the document is relevant to their work responsibilities during the relevant
time and that no copy of any document marked as “HIGHLY
CONFIDENTIAL” Material shall be left with the witness or included in the
witness’s copy of the transcript. Where a former employee is currently
employed by a competitor of the Designating Party, the Designating Party
may move for a protective order requiring heightened protections at least ten
(10) business days prior to the deposition, or may object during the course of
the deposition to the disclosure of any particular document marked “HIGHLY
CONFIDENTIAL” by explaining the basis for its legitimate concerns of .
competitive harm. If objecting during the course of the deposition, the
objecting party may request a telephonic ruling from the Court. If the Court is
not available, the parties will not show the objected-to document to the
witness, and will leaye the deposition open. it will be the objecting party’s
obligation to seek a ruling from the Court within three (3) days of the
deposition;
® The author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or personally knows the
information;
(k) Any other person as to whom the Designating Party has consented to
disclosure in advance; and
(1) Such other persons as the Parties may agree or as may be ordered by the Court
or as required by applicable law.
32. Nothing contained in this Order shall be construed to restrict or limit the use,
dissemination, or disposition by the Designating Party of its own information that it
designates as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
33. Nothing contained in this Order shall prevent a party from sharing a witness’s own
account-level data with that witness.
34. Exclusion of Individuals from Depositions. Counsel shall have the right to exclude
any person who is not authorized by this Order to receive documents or information
designated as Protected Materials from any deposition where testimony regarding
Protected Materials or the use of Protected Materials is likely to arise, but only during
periods of examination or testimony directed to or comprising Protected Material.
This paragraph does not apply to the deponent.
35. Law Enforcement Purposes. The Parties may disclose Protected Material to other
State Attorneys General and United States federal government enforcement agencies
investigating and/or prosecuting consumer protection claims against’ Defendants
related to the allegations in the Complaint in this case, provided that those agencies
agree in writing to be bound by the terms of this Order. The State Attorneys General
and United States federal government enforcement agencies who receive Protected
Material pursuant to this paragraph may use it for investigating and/or litigating their
consumer protection claims against Defendants related to the allegations in the
Complaint in this case.
36 Procedures for Disclosure of “HIGHLY CONFIDENTIAL” Protected Material to
Experts.
(a) Before a Party provides “HIGHLY CONFIDENTIAL” Protected Material to
an Expert retained in connection with the prosecution or defense of this
litigation, the Party (both the Designating Party and the Receiving Party)
shall: (a) obtain from such Expert a signed “Acknowledgment and Agreement
wx pet of,
Qorslfe at toy
(Rem
to Be Bound” (Exhibit A); (b) obtain from such Expert a written statement
that such Expert is not a current officer, director, or employee of a Party or of
Se-AppeBaane-Competitor of a Party, nor spare at the time of retention to
become an officer, director, or employee oft Party or oferage OS)
fo [ack
6c ef ectFs
Competitor of a Party; (c) obtain from such Expert a written statement that
he/she is not involved in competitive decision-making, on behalf of a Party or
eo aamtpy-Baset Competitor of a Party.
(®) For the avoidance of doubt, attorney-expert communications, work product,
working papers, notes, draft reports, or any other material exchanged with any
Experts retained or specially employed by a Party i in this case shall not be
subject to discovery or disclosure consistent with the maximum protections
for such material under Fed. R. Civ. P. 26(0)(4)(B) = (C) and Mass. R. Civ. P.
26(b)(4). Moreover, in the case of consultants or Experts who are retained or
specially employed by a Party to prepare for trial and who are not expected to
be called as a witness at trial, other parties may not, by interrogatories.
deposition, or other mechanisms of discovery, discover facts known or
opinions held by such non-testifying Experts consistent with the protections
afforded such facts and opinions under Mass. R. Civ. P. 26(b){4)(B) and Fed
R. Civ. P 26(b)(4)(D)
VI. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
37. Ifa Receiving Party is served with a subpoena or a court order issued in other
litigation that would compel disclosure of any information or items designated in this
Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” the Receiving Party
must:
(a) promptly notify in writing the Counsel of Record for the Designating Party
(by email, if possible) unless prohibited by law from doing so. Such
notification must include a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue
in the other litigation that some or all of the material covered by the subpoena
or order is subject to this Order. Such notification shall include a copy of this
Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.
38. The purpose of imposing these duties is to alert the interested parties to the existence
of this Order and to afford the Designating Party in this Action an opportunity to
address its confidentiality interests in the court from which the subpoena or order is
issued. The Designating Party shall bear the burden and expense of seeking protection
in that court of its Protected Material. If the Designating Party timely seeks a
protective order, the Party served with the subpoena or court order shall not produce
any Protected Material before a determination by the court from which the subpoena
or order issued, unless the Party has obtained the Designating Party’s permission or
required by applicable law. Nothing in these provisions should be construed as
authorizing or encouraging the party that received the Protected Material in this
Action to disobey a lawful directive from any other court or any legal obligations.
VII. PARTY’S OWN INFORMATION
39, The restrictions on the use of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”
Material established by this Protective Order are applicable only to the use of the
Disclosure or Discovery Material received by a Party from another Party or from a
Non-Party. A Party is free to do whatever it desires with its own confidential material,
provided that any dissemination of the material by the Party that owns the
information may lead to the loss of that information’s confidential status.
Ix. ANON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION
40. The terms of this Order are applicable to information produced by a Non-Party in this
Action and designated-as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Such
information produced by Non-Parties in connection with this litigation is protected by
the remedies and relief provided by this Order. Nothing in these provisions should be
construed as prohibiting a Non- Party from seeking additional protections. Any Party
issuing a subpoena to a Non- Party shal! enclose a copy of this Order.
4l In the event that a Party is required, by a valid discovery request, to produce a Non-
Party’s confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party’s confidential
information, then the Party shall:
(a) promptly notify in writing the Requesting Party and the Non-Party that some
or all of the information requested is subject to a confidentiality agreement
with a Non-Party;
(b) promptly provide the Non-Party with a copy of the Order in this litigation, the
relevant discovery request(s), and a reasonably specific description of the
information requested; and
(c) make the information requested available for inspection by the Non-Party, if
requested.
42. If the Non-Party fails to object or seek a protective order from this Court within
fourteen (14) days of receiving the notice and accompanying information, the
Receiving Party may produce the Non-Party’s confidential information responsive to
the discovery request. If the Non-Party timely seeks a protective order, the Receiving
Party shall not produce any information in its possession or control that is subject to
the confidentiality agreement with the Non-Party before. determination by the Court’
Absent a Court order to the contrary, the Non-Party shall bear the burden and expense
of seeking protection in this Court of its Protected Material.
X. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
43. Ifa Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this
Order, or if the Receiving Party learns that Protected Materials have been
compromised due to a security breach, the Receiving Party must immediately (a)
notify in writing the Designating Party of the unauthorized disclosures or breach; (b)
use its best efforts to retrieve all unauthorized copies of the Protected Material; (c)
inform the person or persons to whom unauthorized disclosures were made of all the
terms of this Order; and (d) request such person or persons to execute the
“Acknowledgment and Agreement to Be Bound” that is attached as Exhibit A.
44, Nothing in these provisions limits or prohibits a Party from seeking any available
legal or equitable remedies or relief for the unauthorized disclosure of its Protected
Material, including but not limited to attorneys’ fees and costs associated with
enforcing its rights under this Order.
XI, MISCELLANEOUS
45. Previously Produced Material. Material that Meta has previously produced to the
Commonwealth in response to civil investigative demands, interrogatories,
subpoenas, or other requests may be used in discovery in this Action. Any material
previously designated “Confidential” under the terms of the Parties’ pre-suit
Confidentiality Agreement will be treated consistently as “CONFIDENTIAL”
material subject to the terms of this Protective Order, and such designation may be :
disputed under the terms of this Protective Order. Any material for which a previous
designation of “Confidential” under the terms of the Parties’ pre-suit Confidentiality
Agreement has been withdrawn will be treated consistently as not protected material
nder the terms of this Protective Order. Nothing herein shall prevent the
Commonwealth from requesting re-production in this matter of materials previously
produced by Meta in response to civil investigative demands.
46. Public Knowledge or Independent Acquisition, Notwithstanding any other provision
of this Order, no person shall be precluded from using or disclosing, in any lawful
manner, any Protected Material that (a) was public knowledge prior to disclosure,
other-than by public disclosure in violation of a court order, including this or other
protective orders; (b) was independently known by that person; (c) either is
independently and lawfully developed or is acquired by the Receiving Party from any
source, other than the designating source, unless the Receiving Party knows or should
know that the person came into possession of such Protected Material by
unauthorized access or disclosure in violation of any state or federal law; or (d)
becomes public knowledge other than by an act or omission of the Receiving Party or
by violation of a court order, including this or other protective orders. The burden of
proving prior possession, prior knowledge, or prior public knowledge of such
Protected Material shall be on the Receiving Party.
47. Right to Further Relief. Nothing in this Order abridges the right of any person to seek
its modification by the Court in the future.
48 Right to Assert Other Objections. By stipulating to the entry of this Order, no Party
waives any right it otherwisewould have to object to disclosing orproducing any
information or item on any ground notaddressed in this Order. Similarly, no Party
waives any right to object on any ground to use in evidence of any of the material
covered by this Order.
49. Source Code. Prior to the disclosure of any source code, the Parties will confer
regarding the definition of source code and any additional protections that may be
necessary, then present either an agreed-upon proposed Order or present competing
proposed Orders to the Court regarding the provisions that will govern the protection
of Source Code.
50. No Waiver. Nothing in this Order shall be deemed a waiver of the right of any party
to oppose production of any information or material on any available grounds or to
object to the authenticity or admissibility of any document, testimony, or other
evidence.
51. No Modification of Privileges. Nothing in this Order shall modify the law regarding
the attorney-client privilege, the attorney work product doctrine, the joint defense
privilege, and any other applicable privilege or protection from disclosure to the
extent such privilege or protection exists under applicable law.
52. Disclosure of Protected Material in Court Filings. Before filing any pleadings or other
documents which contain Protected Materials, the parties shall confer and agree on
redactions that would permit the filing of the pleadings or other documents in open
court. If the parties are unable to agree on such redactions, the Producing Party (or
parties) may make a motion (a “Protective Motion”), pursuant to the Uniform Rules
on Impoundment Procedure and/or Rule 26(c) of the Massachusetts Rules of Civil
Procedure, for a court order permitting such pleadings or other documents to be filed
in a particular manner, including under seal or impoundment. In order toafford the
Producing Party sufficient time to review and prepare redactions or a Protective
Motion, a party intending to file Protected Materials produced by another party shall
identify in writing to the Producing Party the Protected Material that will be filed no
later than seven (7) business days prior to filing. If the Producing Party does not serve
or file a Protective Motion within seven (7) business days of receiving this notice, or
by such other time as the parties agree, the party intending to file the Protected
Material may file the pleadings or other documents containing the material in
question in open court. The parties recognize that filing under seal or impoundment
may only be ordered by the Court on a particularized showing and for good cause
shown, that the finding of good cause must be made by the Court, not the parties, and
that in its consideration of whether any pleadings or documents may be filed under
seal or impoundment, the Court is not bound by the designation of any material as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and any such designation shall
not create any presumption that documents so designated are entitled to confidential
treatment pursuant to Rule 26(c) of the Massachusetts Rules of Civil Procedure or
impoundment or seal pursuant to the Uniform Rules on Impoundment Procedure. If
the Court determines that the Protected Material addressed by the Protective Motion
are not entitled to confidential treatment pursuant to Rule 26(c) of the Massachusetts
Rules of Civil Procedure, and/or does not permit the pleadings or other documents
which contain such Protected Material to be filed under seal or impoundment, the
parties may then file those pleadings or other documents in open court.
53. Compliance with Federal and State Law. Nothing contained herein shall alter either |
Party’s obligations to maintain and protect information that is privileged or otherwise
protected under state, federal, or common law or to alter the Commonwealth’s
obligations under the Massachusetts Public Records Law. The Commonwealth shall
not make any disclosures of Protected Material outside of those addressed elsewhere
in this Order unless such a disclosure is required by law and will provide notice of
such disclosure to the Designating Party seven (7) days prior to disclosing Protected
Material if permitted by law.
34. Prosecution Bar. Absent written consent from the Designating Party, any individual
bound by this agreement who receives access to “HIGHLY CONFIDENTIAL”
Material must not be involved in the prosecution of patents or patent applications
relating to the subject matter of the “HIGHLY CONFIDENTIAL” Information. For
purposes of this paragraph, “prosecution” includes directly or indirectly drafting,
amending, advising, or otherwise affecting the scope or maintenance of these patent
claims. Prosecution includes, for example, original prosecution, reissue, and
reexamination and other post-grant proceedings. This Prosecution Bar begins when
access to “HIGHLY CONFIDENTIAL?” Information is first received by the individual
and ends two (2) years after final disposition of this Action has expired.
55, Export Controls. Disclosure of Protected Material shal! be subject to all applicable
laws and regulations relating to the export of technical data contained in such
Protected Material, including the release of such technical data to foreign persons or
nationals in the United States or elsewhere. The Receiving Partyshall comply with all
applicable export control laws and regulations, see, e.g., 15 C.F.R. § 734. No
Protected Material may leave the territorial boundaries of the United States of
America or be made available:to any foreign national who is not (i) lawfully admitted
for permanent residence in the United States or (ii) identified as a protected individual
under the Immigration and Naturalization Act, see 8 U.S.C. § 1324b{a)(3). Without
limitation, this prohibition extends to Protected Material (including copies) in
physical and electronic form. The viewing of Protected Material is similarly
prohibited, except that Protected Material may be taken outside the territorial limits of
the United States (to the extent permitted by law) if it is reasonably necessary for a
deposition taken in a foreign country. The restrictions contained within this paragraph
may be amended through express written consent of the Producing Party to the extent
that such agreed-to procedures conform with applicable export contro! laws and
regulations.
XII. FINAL DISPOSITION
56. Final disposition shall be deemed to be the later of: (1) dismissal of all claims and
defenses in this Action, with or without prejudice; and (2) final judgment herein after
the completion and exhaustion of all appeals, re-hearings, remands, trials, or reviews
of this Action, including the time limits for filing any motions or applications for
extension of time pursuant to applicable law. -
37. Unless otherwise ordered or agreed to in writing by the Producing Party, within sixty
(60) days after the final disposition of this Action, each Receiving Party and each
Non-Party in receipt of Protected Material pursuant to the procedures in Paragraph 31
above must take reasonable steps to return all Protected Material to the Producing
Party or destroy such material, except: (1) backup tapes or other disaster recovery
systems that are routinely deleted or written over in accordance with an established
routine system mairitenance practice; (2) emails sent or received by counsel for the
Receiving Party; (3) documents that must be preserved as government records or in
compliance with other statutory, regulatory, or legal authorities; or (4) work product
kept in the ordinary course of business in which confidential material is referenced or
described. As used in this subdivision, “all Protected Material” includes all copies,
abstracts, compilations, summaries, and any other format reproducing or capturing
any of the Protected Material. Whether the Protected Material is returned or
destroyed, upon the written request of the Producing Party, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or
entity, to the Designating Party) within a reasonable time after receiving the request
that (1) identifies (by category, if appropriate) all the Protected Material that was
returned or destroyed, and (2) affirms that the Receiving Party has not retained any
copies, abstracts, compilations, summaries, or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are
entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,
and hearing transcripts, legal memoranda, correspondence, deposition and trial
exhibits, expert reports, attorney work product, and consultant and expert work
product, even if such materials contain Protected Material.
38. Notwithstanding the foregoing, any Receiving Party that is an insurance company
with a potential coverage obligation with respect to this Action, or a Defendant that is
pursuing insurance coverage for this Action, shall be permitted to retain copies of
Protected Material subject to all requirements of this Protective Order and solely to
the extent such retention isnecessary to comply with applicable law and its regulatory
and contractual obligations or to pursue insurance coverage from its insurer; and such
insurance company and Defendant shall return or destroy such Protected Material
within ninety (90) days of the end of the above-stated reasons or obligations to retain
the Protected Material.
XIII. STANDARD PROTECTIVE ORDER
This Order supersedes any applicable Standard Protective Order or pre-suit
confidentiality agreement, and as of the date of this Order, this Order governs the treatment of
Protected Material produced in this action, including Protected Material produced when the
Standard Protective Order or pre-suit confidentiality agreement was in effect in this action.
2polay
ciate Justicd of, assachusetts Superior Court
Preview
20 NOTIEY COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR. COURT DEPARTMENT CIVIL ACTION NO. 2384CV02397-BLS1 COMMONWEALTH OF MASSACHUSETTS, Plaintiff, v. META PLATFORMS, INC. and INSTAGRAM, LLC, Defendants. PROTECTIVE ORDER Whereas certain discovery materials in this case may qualify as confidential or highly confidential information, and to prevent undue disclosure of any such information, the Commonwealth of Massachusetts (the “Commonwealth”) and Defendants Meta Platforms, Inc: and Instagram LLC (“Meta”) (collectively, the “‘Parties”) have requested that the Court enter a protective order; and whereas the Court has determined that the terms set forth herein are appropriate to protect the respective interests of the Parties and third parties; accordingly, it is HEREBY ORDERED: L DEFINITIONS 1 Action: the above captioned action, bbe uding any amendments thereto 2. Aqog@pmerl Competitor: any apztsed.company that provides social media services, or any company that reasonably may be considered to be in or as having plans to enter into this area, or any of their current or former officers, directors, employees, contractors, or agents. This definition is only for purposes of determining whether a person serving as an Expert (as defined below) in this case is eligible to obtain access to “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL” materials, and the parties agree that this definition has no evidentiary value and will not be used by the Parties or the Court for any substantive purposes in this case. Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. CONFIDENTIAL Information or Items: information (regardless of how it is generated, stored, or maintained) or tangible things that qualify for protection under Mass. R. Civ. P. Rule 26(c). Counsel (without qualifier); Outside Counsel and In-House Counsel (as well as their + support staff). . Designating Party: a Party or Non:Party that desigiiates inforination or tangible items that itproduces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. Expert: a person who has (1) been retained by a Party or its Counsel to serve as an expert witness or as an undisclosed consultant in this Action (as well as his or her employees and support staff), (2) is not a current employee of a Party or of a Party’s Sompetitor, and (3) at the time of retention, is not anticipated to become an employee ofa Party or of a Party’s Sompetitr 9. HIGHLY CONFIDENTIAL Information or Items: Protected Material the disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means 10, In-House Counsel: attorneys who are employees of a Party to this Action, and their support staff. In-House Counsel does not include Outside Counsel IL Insurance Representative: An employee or outside counsel of a liability insurer who may provide coverage to Defendants in this action, who has a need to know “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Protected Material in order to fulfill a duty to defend or evaluate a potential coverage obligation, and whose need to know “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Protected Material cannot besatisfied by disclosure to apreviously authorized Insurance Representative. For the avoidance of doubt, an Insurance Representative cannot use Protected* Material for any other purpose. including but not limited to use in any other litigation or arbitration proceeding 12. Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this Action. 13. Qutside Counsel: attorneys who are not employees of a Party to this Action but are retained in this Action to represent or advise a Party to this Action and who have signed the “Acknowledgement and Agreement to Be Bound” that is attached hereto as - ExhibitA, as well as their support staff to whom it is reasonably necessary to disclose the information for this Action (including but not limited to attomeys, paralegals, secretaries, law clerks, and investigators), provided that a supervising attorney confirms in writing that their support staff agrees to adhere to the terms set forth in the “Acknowledgment and Agreement to Be Bound” (Exhibit A). 14. Party: any party to this Action, including all of its officers, directors, employees (including In-House Counsel), and Outside Counsel (and their support staffs). 15. Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action. 16. Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 17. Protected Material: any Disclosure orDiscovery Material that-is designated as" . “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” 18. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. SCOPE 19, The protections conferred by this Order apply to not only Protected Material (as defined above), but also to: (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any oral, written, or electronic communications, testimony, or presentation by Parties or their Counsel that might reveal Protected Material. 20. Data Security of Protected Material. Any Receiving Party or person in possession of or transmitting another Party’s Protected Material and their Outside Counsel must maintain an information security program consistent with standard industry practice, and/or government industry standard practice as applicable to the Commonwealth, that is designed to protect and secure the Protected Materia! from loss, misuse, unauthorized access, unauthorized disclosure, and theft. To the extent a Receiving Party or person does not have an information security program, a Receiving Party may comply with this Data Security provision by having the Protected Material maintained by and/or stored with a secure eDiscovery/litigation support site(s) or claims administrator that maintains an information security Program that aligns with standard industry practices and/or government industry standard practice as applicable to the Commonwealth. Any Protected Material in paper format must be maintained in a secure location with access limited to persons entitled to access the, ProtectedMaterial under this Order. Protected Material shall not be copied or - otherwise reproduced by aReceiving Party, except for transmission to qualified recipients, without the written permission of the Designating Party or by further order of the Court. Ifa Receiving Party or any person in possession of or transmitting another Party’s Protected Material discovers any loss of Protected Material or a breach of security, including any actual or suspected unauthorized access relating to another Party’s Protected Material, they shall comply with the “Unauthorized Disclosure of Protected Material” provisions in Section X of this Order. iil. DURATION 21. Even after final disposition of this Action, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing, or a court order otherwise directs. The Court retains jurisdiction even after termination of this Action to enforce this Order and to make such amendments, modifications, deletions, and additions to this Protective Order as the Court from time to time deems appropriate. Iv. DESIGNATING PROTECTED MATERIAL 22. Exercise of Restraint and Care in Designating Material for Protection. A Designating Party shall use good faith in designating information as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” making such a designation only when there is a legitimate reason for the restrictions on disclosure called for by the designation. The Parties recognize this is a public enforcement lawsuit brought by the Commonwealth to be conducted on the public record to the greatest extent possible. Designations that are clearly unjustified or that have been made for an improper purpose (€.g., to unnecessarily encumber or delay the case development process oF to impose unnecessary expensés and burdens on other Parties) are prohibited. If itcomes to a Designating Party’s attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the inapplicable designation. 23. Manner and Timing of Designations. Except as otherwise provided in this Order or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must he clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) For information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affixes the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” to each page of a paper or electronic document that contains Protected Material or to the cover page of bound or grouped material. Electronic materials may be designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Information by any method reasonably designed to alert the Receiving Party that the information is “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Information, such as, but not limited to, the subject line of an e-mail containing such materials or, in the case of spreadsheets or other documents not produced in paginated form, in a field in the overlay or in the document’s file name. A Party or Non-Party thatmakes original documents or materials available for inspection need not designate them for protection until . : after the inspecting Party has indicated which material it would like copied : and produced. During the inspection and before the designation, all of the material made available for inspection shall be treated as “HIGHLY CONFIDENTIAL” Information. After the inspecting Party has identified the documents it wants 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 Producing Party must affix “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” in accord with the foregoing. A Party may designate documents produced by a Non-Party as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL?” if the documents contain information for which that Party would have a right to apply the proposed designation if produced by that Party, by notifying all other Parties . of the designation in writing within twenty-one (21) days after the production of documents by the Non-Party. The deadline to designate Non-Party materials may be extended by agreement of the Parties. (b) For testimony given in deposition or in other pretrial proceedings, in the event that a Producing Party designates a witness’s deposition or other testimony as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” the specific page and line designations over which confidentiality is claimed must be provided to the Receiving Party within thirty (30) days of receipt of the final transcript, provided, however, that the Receiving Party will consider reasonable requests for an extension of the deadline. Deposition testimony shall be treated as “HIGHLY CONFIDENTIAL” pending the deadline. After the 30-day period, if no Party has designated some or all of that deposition transcript as “CONFIDENTIAL* or “HIGHLY CONFIDENTIAL” under this Protective Order, the entire deposition, or those portions of the deposition not designated as confidential, will no longer be considered confidential. (c) For information produced in some form other than documentary and for any other tangible items, that the Producing Party affixes, in a prominent place on the exterior of the container or containers in which the information or item is stored, the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s). A Party may designate information produced by a Non-Party as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL? if the document contains information for which that Party would have a right to apply the proposed designation if produced by that Party, by notifying all other Parties of the designation in writing within twenty-one (21) days after the production of information by the Non-Party. The deadline to designate Non-Party materials may be extended by agreement of the Parties, 24, Inadvertent Failures to Designate. Disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Information does not, alone, waive the confidential status of such information. The Parties shall use reasonable care in designating qualified material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material. In the event that “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material is disclosed without.a marking or designation ofit as such, the Party may- thereafter assert a claim or designation of confidentiality if made within fourteen (14) days of becoming aware of an inadvertent failure to designate and before such material isused in any substantial way by the Receiving Party, and promptly provide replacement material with the appropriate designation (and, if applicable, using the same Bates number as the original production). Thereafter, the Receiving Party must immediately delete, sequester, or return to the Producing Party the original “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material and all copies of the same and make no use of such material. A recipient’s prior disclosure of newly designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ” Material shall not violate this Order. Vv, CHALLENGING CONFIDENTIALITY DESIGNATIONS 25. This Order sha!l not preclude any Party from bringing before the Court, at any time, the question of whether any particular material is properly designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL”. In its request for relief from the Court, the Party disputing the designation of any material shall identify the material that it believes is not properly designated. The Party asserting the propriety of any designation has the burden to defend the designation. 26. Prior to filing with the Court any motion to dispute or uphold a designation, the Parties shall meet and confer in good faith to attempt to resolve the dispute pursuant to Massachusetts Superior Court Rules 9A and 9C, 27 If the dispute cannot be resolved, the Parties shall treat the information consistent with its designation until a ruling by the Court. 28 Any person or entity receiving “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” material may use the procedures set forth in thissection to challenge the Designating _ Party’s confidentiality designation. ACCESS TO AND USE OF PROTECTED MATERIAL 29. Basic Principles. Except as otherwise set out in this Order, a Receiving Party may use Protected Material that is disclosed or produced by another Party or by a Non- Party in connection with this case only for prosecuting, defending, or attempting to settle this litigation, including any appeal(s) or as described in | 34. Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of Section XII below, to the extent permitted by applicable law. Protected Material must be stored and maintained by a Receiving Party, at a location, and in a secure manner that ensures that access is limited to the persons authorized under this Order. 30. Disclosure of “CONFIDENTIAL” Information or Items. Unless required by law or otherwise ordered herein or by further order of the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any material designated “CONFIDENTIAL” only to: (a) The Receiving Party; (b) The Receiving Party’s Outside Counsel in this Action; (c) Insurance Representatives to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A); (d) Experts (as defined in this Order) retained by the Receiving Party and their staff @ to whom disclosure is reasonably necessary for this Action and @) who have signed the “Acknowledgement and Agreement to Be Bourid” (Exhibit A), (e) The Court and its personnel, and any appellate court or other court (and their personnel) before which the Parties appear in this Action; (f) Court reporters, transcribers, videographers, and their staff (g) Professional jury or trial consultants and mock jurors or focus group members who have signed a confidentiality agreement, and Professional Vendors to whom disclosure is reasonably necessary for this Action and whose representative has signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A); (h) Any mediator who is assigned to hear this Action, and his or her staff, who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A); @ During their depositions or a hearing, or during preparations for the same, witnesses in the Action and their attorneys to whom disclosure is reasonably necessary and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A), unless otherwise agreed to by the Designating Party or ordered by the Court; 0) The author or recipient of a document containing the Protected Material or a custodian or other person who otherwise possessed or personally knows the information; : (k) Any other person as to whor the Designating Party has consented to disclosure in advance; and, (1) Such other persons as the Parties may agree or as may be ordered by the Court or as required by applicable law. 31. Disclosure of “HIGHLY CONFIDENTIAL” Information or Items. Unless required by Jaw or otherwise ordered herein or by further order of the Court or permitted in writing by the Designating Party, any material designated “HIGHLY - CONFIDENTIAL” may be disclosed only to {a) The Receiving Party’s In-House Counsel; (6) The Receiving Party’s Outside Counsel in this Action; (c) Insurance Representatives to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A); (d) Experts (as defined in this Order) retained by the Receiving Party and their staff (1) to whom disclosure is reasonably necessary for this Action, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in Paragraph 35 have been followed; (©) The Court and its personnel, and any appellate court or other court (and their personnel) before which the Parties appear in this Action; () Court reporters, transcribers, videographers, and their staff; (g) Professional jury or trial consultants, mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (h) Any mediator who is assigned to hear this Action, and his or her staff, who have signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A); @ During their depositions or a hearing, or during preparations for the same, current and former employees of the Designating Party in this Action and their attorneys to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), provided that the document is relevant to their work responsibilities during the relevant time and that no copy of any document marked as “HIGHLY CONFIDENTIAL” Material shall be left with the witness or included in the witness’s copy of the transcript. Where a former employee is currently employed by a competitor of the Designating Party, the Designating Party may move for a protective order requiring heightened protections at least ten (10) business days prior to the deposition, or may object during the course of the deposition to the disclosure of any particular document marked “HIGHLY CONFIDENTIAL” by explaining the basis for its legitimate concerns of . competitive harm. If objecting during the course of the deposition, the objecting party may request a telephonic ruling from the Court. If the Court is not available, the parties will not show the objected-to document to the witness, and will leaye the deposition open. it will be the objecting party’s obligation to seek a ruling from the Court within three (3) days of the deposition; ® The author or recipient of a document containing the information or a custodian or other person who otherwise possessed or personally knows the information; (k) Any other person as to whom the Designating Party has consented to disclosure in advance; and (1) Such other persons as the Parties may agree or as may be ordered by the Court or as required by applicable law. 32. Nothing contained in this Order shall be construed to restrict or limit the use, dissemination, or disposition by the Designating Party of its own information that it designates as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” 33. Nothing contained in this Order shall prevent a party from sharing a witness’s own account-level data with that witness. 34. Exclusion of Individuals from Depositions. Counsel shall have the right to exclude any person who is not authorized by this Order to receive documents or information designated as Protected Materials from any deposition where testimony regarding Protected Materials or the use of Protected Materials is likely to arise, but only during periods of examination or testimony directed to or comprising Protected Material. This paragraph does not apply to the deponent. 35. Law Enforcement Purposes. The Parties may disclose Protected Material to other State Attorneys General and United States federal government enforcement agencies investigating and/or prosecuting consumer protection claims against’ Defendants related to the allegations in the Complaint in this case, provided that those agencies agree in writing to be bound by the terms of this Order. The State Attorneys General and United States federal government enforcement agencies who receive Protected Material pursuant to this paragraph may use it for investigating and/or litigating their consumer protection claims against Defendants related to the allegations in the Complaint in this case. 36 Procedures for Disclosure of “HIGHLY CONFIDENTIAL” Protected Material to Experts. (a) Before a Party provides “HIGHLY CONFIDENTIAL” Protected Material to an Expert retained in connection with the prosecution or defense of this litigation, the Party (both the Designating Party and the Receiving Party) shall: (a) obtain from such Expert a signed “Acknowledgment and Agreement wx pet of, Qorslfe at toy (Rem to Be Bound” (Exhibit A); (b) obtain from such Expert a written statement that such Expert is not a current officer, director, or employee of a Party or of Se-AppeBaane-Competitor of a Party, nor spare at the time of retention to become an officer, director, or employee oft Party or oferage OS) fo [ack 6c ef ectFs Competitor of a Party; (c) obtain from such Expert a written statement that he/she is not involved in competitive decision-making, on behalf of a Party or eo aamtpy-Baset Competitor of a Party. (®) For the avoidance of doubt, attorney-expert communications, work product, working papers, notes, draft reports, or any other material exchanged with any Experts retained or specially employed by a Party i in this case shall not be subject to discovery or disclosure consistent with the maximum protections for such material under Fed. R. Civ. P. 26(0)(4)(B) = (C) and Mass. R. Civ. P. 26(b)(4). Moreover, in the case of consultants or Experts who are retained or specially employed by a Party to prepare for trial and who are not expected to be called as a witness at trial, other parties may not, by interrogatories. deposition, or other mechanisms of discovery, discover facts known or opinions held by such non-testifying Experts consistent with the protections afforded such facts and opinions under Mass. R. Civ. P. 26(b){4)(B) and Fed R. Civ. P 26(b)(4)(D) VI. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 37. Ifa Receiving Party is served with a subpoena or a court order issued in other litigation that would compel disclosure of any information or items designated in this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” the Receiving Party must: (a) promptly notify in writing the Counsel of Record for the Designating Party (by email, if possible) unless prohibited by law from doing so. Such notification must include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Order. Such notification shall include a copy of this Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 38. The purpose of imposing these duties is to alert the interested parties to the existence of this Order and to afford the Designating Party in this Action an opportunity to address its confidentiality interests in the court from which the subpoena or order is issued. The Designating Party shall bear the burden and expense of seeking protection in that court of its Protected Material. If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any Protected Material before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party’s permission or required by applicable law. Nothing in these provisions should be construed as authorizing or encouraging the party that received the Protected Material in this Action to disobey a lawful directive from any other court or any legal obligations. VII. PARTY’S OWN INFORMATION 39, The restrictions on the use of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” Material established by this Protective Order are applicable only to the use of the Disclosure or Discovery Material received by a Party from another Party or from a Non-Party. A Party is free to do whatever it desires with its own confidential material, provided that any dissemination of the material by the Party that owns the information may lead to the loss of that information’s confidential status. Ix. ANON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 40. The terms of this Order are applicable to information produced by a Non-Party in this Action and designated-as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.” Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non- Party from seeking additional protections. Any Party issuing a subpoena to a Non- Party shal! enclose a copy of this Order. 4l In the event that a Party is required, by a valid discovery request, to produce a Non- Party’s confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: (a) promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; (b) promptly provide the Non-Party with a copy of the Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and (c) make the information requested available for inspection by the Non-Party, if requested. 42. If the Non-Party fails to object or seek a protective order from this Court within fourteen (14) days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before. determination by the Court’ Absent a Court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this Court of its Protected Material. X. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 43. Ifa Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Order, or if the Receiving Party learns that Protected Materials have been compromised due to a security breach, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures or breach; (b) use its best efforts to retrieve all unauthorized copies of the Protected Material; (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order; and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached as Exhibit A. 44, Nothing in these provisions limits or prohibits a Party from seeking any available legal or equitable remedies or relief for the unauthorized disclosure of its Protected Material, including but not limited to attorneys’ fees and costs associated with enforcing its rights under this Order. XI, MISCELLANEOUS 45. Previously Produced Material. Material that Meta has previously produced to the Commonwealth in response to civil investigative demands, interrogatories, subpoenas, or other requests may be used in discovery in this Action. Any material previously designated “Confidential” under the terms of the Parties’ pre-suit Confidentiality Agreement will be treated consistently as “CONFIDENTIAL” material subject to the terms of this Protective Order, and such designation may be : disputed under the terms of this Protective Order. Any material for which a previous designation of “Confidential” under the terms of the Parties’ pre-suit Confidentiality Agreement has been withdrawn will be treated consistently as not protected material nder the terms of this Protective Order. Nothing herein shall prevent the Commonwealth from requesting re-production in this matter of materials previously produced by Meta in response to civil investigative demands. 46. Public Knowledge or Independent Acquisition, Notwithstanding any other provision of this Order, no person shall be precluded from using or disclosing, in any lawful manner, any Protected Material that (a) was public knowledge prior to disclosure, other-than by public disclosure in violation of a court order, including this or other protective orders; (b) was independently known by that person; (c) either is independently and lawfully developed or is acquired by the Receiving Party from any source, other than the designating source, unless the Receiving Party knows or should know that the person came into possession of such Protected Material by unauthorized access or disclosure in violation of any state or federal law; or (d) becomes public knowledge other than by an act or omission of the Receiving Party or by violation of a court order, including this or other protective orders. The burden of proving prior possession, prior knowledge, or prior public knowledge of such Protected Material shall be on the Receiving Party. 47. Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 48 Right to Assert Other Objections. By stipulating to the entry of this Order, no Party waives any right it otherwisewould have to object to disclosing orproducing any information or item on any ground notaddressed in this Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Order. 49. Source Code. Prior to the disclosure of any source code, the Parties will confer regarding the definition of source code and any additional protections that may be necessary, then present either an agreed-upon proposed Order or present competing proposed Orders to the Court regarding the provisions that will govern the protection of Source Code. 50. No Waiver. Nothing in this Order shall be deemed a waiver of the right of any party to oppose production of any information or material on any available grounds or to object to the authenticity or admissibility of any document, testimony, or other evidence. 51. No Modification of Privileges. Nothing in this Order shall modify the law regarding the attorney-client privilege, the attorney work product doctrine, the joint defense privilege, and any other applicable privilege or protection from disclosure to the extent such privilege or protection exists under applicable law. 52. Disclosure of Protected Material in Court Filings. Before filing any pleadings or other documents which contain Protected Materials, the parties shall confer and agree on redactions that would permit the filing of the pleadings or other documents in open court. If the parties are unable to agree on such redactions, the Producing Party (or parties) may make a motion (a “Protective Motion”), pursuant to the Uniform Rules on Impoundment Procedure and/or Rule 26(c) of the Massachusetts Rules of Civil Procedure, for a court order permitting such pleadings or other documents to be filed in a particular manner, including under seal or impoundment. In order toafford the Producing Party sufficient time to review and prepare redactions or a Protective Motion, a party intending to file Protected Materials produced by another party shall identify in writing to the Producing Party the Protected Material that will be filed no later than seven (7) business days prior to filing. If the Producing Party does not serve or file a Protective Motion within seven (7) business days of receiving this notice, or by such other time as the parties agree, the party intending to file the Protected Material may file the pleadings or other documents containing the material in question in open court. The parties recognize that filing under seal or impoundment may only be ordered by the Court on a particularized showing and for good cause shown, that the finding of good cause must be made by the Court, not the parties, and that in its consideration of whether any pleadings or documents may be filed under seal or impoundment, the Court is not bound by the designation of any material as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” and any such designation shall not create any presumption that documents so designated are entitled to confidential treatment pursuant to Rule 26(c) of the Massachusetts Rules of Civil Procedure or impoundment or seal pursuant to the Uniform Rules on Impoundment Procedure. If the Court determines that the Protected Material addressed by the Protective Motion are not entitled to confidential treatment pursuant to Rule 26(c) of the Massachusetts Rules of Civil Procedure, and/or does not permit the pleadings or other documents which contain such Protected Material to be filed under seal or impoundment, the parties may then file those pleadings or other documents in open court. 53. Compliance with Federal and State Law. Nothing contained herein shall alter either | Party’s obligations to maintain and protect information that is privileged or otherwise protected under state, federal, or common law or to alter the Commonwealth’s obligations under the Massachusetts Public Records Law. The Commonwealth shall not make any disclosures of Protected Material outside of those addressed elsewhere in this Order unless such a disclosure is required by law and will provide notice of such disclosure to the Designating Party seven (7) days prior to disclosing Protected Material if permitted by law. 34. Prosecution Bar. Absent written consent from the Designating Party, any individual bound by this agreement who receives access to “HIGHLY CONFIDENTIAL” Material must not be involved in the prosecution of patents or patent applications relating to the subject matter of the “HIGHLY CONFIDENTIAL” Information. For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or maintenance of these patent claims. Prosecution includes, for example, original prosecution, reissue, and reexamination and other post-grant proceedings. This Prosecution Bar begins when access to “HIGHLY CONFIDENTIAL?” Information is first received by the individual and ends two (2) years after final disposition of this Action has expired. 55, Export Controls. Disclosure of Protected Material shal! be subject to all applicable laws and regulations relating to the export of technical data contained in such Protected Material, including the release of such technical data to foreign persons or nationals in the United States or elsewhere. The Receiving Partyshall comply with all applicable export control laws and regulations, see, e.g., 15 C.F.R. § 734. No Protected Material may leave the territorial boundaries of the United States of America or be made available:to any foreign national who is not (i) lawfully admitted for permanent residence in the United States or (ii) identified as a protected individual under the Immigration and Naturalization Act, see 8 U.S.C. § 1324b{a)(3). Without limitation, this prohibition extends to Protected Material (including copies) in physical and electronic form. The viewing of Protected Material is similarly prohibited, except that Protected Material may be taken outside the territorial limits of the United States (to the extent permitted by law) if it is reasonably necessary for a deposition taken in a foreign country. The restrictions contained within this paragraph may be amended through express written consent of the Producing Party to the extent that such agreed-to procedures conform with applicable export contro! laws and regulations. XII. FINAL DISPOSITION 56. Final disposition shall be deemed to be the later of: (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, re-hearings, remands, trials, or reviews of this Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. - 37. Unless otherwise ordered or agreed to in writing by the Producing Party, within sixty (60) days after the final disposition of this Action, each Receiving Party and each Non-Party in receipt of Protected Material pursuant to the procedures in Paragraph 31 above must take reasonable steps to return all Protected Material to the Producing Party or destroy such material, except: (1) backup tapes or other disaster recovery systems that are routinely deleted or written over in accordance with an established routine system mairitenance practice; (2) emails sent or received by counsel for the Receiving Party; (3) documents that must be preserved as government records or in compliance with other statutory, regulatory, or legal authorities; or (4) work product kept in the ordinary course of business in which confidential material is referenced or described. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, upon the written request of the Producing Party, the Receiving Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) within a reasonable time after receiving the request that (1) identifies (by category, if appropriate) all the Protected Material that was returned or destroyed, and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries, or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. 38. Notwithstanding the foregoing, any Receiving Party that is an insurance company with a potential coverage obligation with respect to this Action, or a Defendant that is pursuing insurance coverage for this Action, shall be permitted to retain copies of Protected Material subject to all requirements of this Protective Order and solely to the extent such retention isnecessary to comply with applicable law and its regulatory and contractual obligations or to pursue insurance coverage from its insurer; and such insurance company and Defendant shall return or destroy such Protected Material within ninety (90) days of the end of the above-stated reasons or obligations to retain the Protected Material. XIII. STANDARD PROTECTIVE ORDER This Order supersedes any applicable Standard Protective Order or pre-suit confidentiality agreement, and as of the date of this Order, this Order governs the treatment of Protected Material produced in this action, including Protected Material produced when the Standard Protective Order or pre-suit confidentiality agreement was in effect in this action. 2polay ciate Justicd of, assachusetts Superior Court