Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 1 of 37 Page ID #:489
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`NOTE CHANGES MADE BY COURT
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
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`Case No.: 8:15-cv-00278-DOC-KES
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`PROPOSED STIPULATED PROTECTIVE
`ORDER
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`Case No.: 8:15-cv-00648-DOC-KES
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`Case No.: 8:15-cv-00650-DOC-KES
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`Case No.: 8:15-cv-00652-DOC-KES
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`LIMESTONE MEMORY SYSTEMS LLC,
`
`Plaintiff,
`
`v.
`MICRON TECHNOLOGY, INC., AND
`MICRON MEMORY JAPAN, INC.
`Defendants.
`LIMESTONE MEMORY SYSTEMS LLC,
`
`Plaintiff,
`
`v.
`DELL INC.,
`
`Defendant.
`LIMESTONE MEMORY SYSTEMS LLC,
`
`Plaintiff,
`
`v.
`LENOVO (UNITED STATES) INC.
`Defendant.
`LIMESTONE MEMORY SYSTEMS LLC,
`
`Plaintiff,
`
`v.
`HEWLETT-PACKARD COMPANY,
`Defendant.
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 2 of 37 Page ID #:490
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`LIMESTONE MEMORY SYSTEMS LLC,
`
`Plaintiff,
`ACER AMERICA CORPORATION.
`Defendant.
`LIMESTONE MEMORY SYSTEMS LLC,
`
`Plaintiff,
`KINGSTON TECHNOLOGY CO., INC.
`Defendant.
`LIMESTONE MEMORY SYSTEMS LLC,
`
`Plaintiff,
`OCZ STORAGE SOLUTIONS, INC.
`Defendant.
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`Case No.: 8:15-cv-00653-DOC-KES
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`Case No.: 8:15-cv-00654-DOC-KES
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`Case No.: 8:15-cv-00658-DOC-KES
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 3 of 37 Page ID #:491
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`TABLE OF CONTENTS
`
`Page
`DEFINITIONS ................................................................................................ 2 
`TERMS AND CONDITIONS ........................................................................ 6 
`A.  General Limitations On Disclosure And Use Of Designated
`Material ................................................................................................. 6 
`Procedure For Designating Materials ................................................... 7 
`B. 
`Inadvertent Production .......................................................................... 9 
`C. 
`D.  Material Not Covered By This Protective Order ................................ 11 
`E. 
`Challenges To Designations ............................................................... 11 
`F. 
`Inspection Of Materials ....................................................................... 13 
`G.  Access To CONFIDENTIAL Material ............................................... 13 
`H.  Access To HIGHLY CONFIDENTIAL Material .............................. 14 
`I. 
`Access to RESTRICTED CONFIDENTIAL - OUTSIDE
`COUNSEL’S EYES ONLY Material ................................................. 15 
`Access to Circuit Schematic Files ....................................................... 21 
`J. 
`K.  Notice of Disclosure ............................................................................ 22 
`L. 
`Disclosure of Designated Materials To Other Parties in the
`Litigation ............................................................................................. 24 
`Exceptions To Limitations On Disclosure .......................................... 25 
`M. 
`N.  Use At Depositions ............................................................................. 26 
`O. 
`Prosecution and Acquisition Bar ........................................................ 27 
`P. 
`Stipulations Or Additional Relief From The Court ............................ 27 
`Q. 
`Return Of Designated Material ........................................................... 28 
`R. 
`Injunctive Relief .................................................................................. 28 
`S. 
`Survival Of Order ................................................................................ 29 
`T. 
`Treatment Prior To Entry Of Protective Order ................................... 29 
`
`I. 
`II. 
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 4 of 37 Page ID #:492
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`U. 
`
`Protected Material Subpoenaed Or Ordered Produced In Other
`Litigation ............................................................................................. 29 
`V.  Other Proceedings ............................................................................... 30 
`W.  Computation of Time .......................................................................... 30 
`X. 
`Filing Designated Material ................................................................. 30 
`Y. 
`Burden of Proof ................................................................................... 31 
`Z. 
`Discovery Rules Remain Unchanged ................................................. 31 
`AA.  Use at Trial .......................................................................................... 32 
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 5 of 37 Page ID #:493
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`STIPULATED PROTECTIVE ORDER
`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff
`Limestone Memory Systems LLC (“Plaintiff”), and Defendants Micron Technology,
`Inc. (“MTI”), Micron Memory Japan, Inc. (“MMJ”),1 Dell Inc., Hewlett-Packard
`Company, Kingston Technology Company, Inc., OCZ Storage Solutions, Inc., Acer
`America Corporation, and Lenovo (United States) Inc. (collectively, “the Parties”)
`have stipulated and agreed to the terms and entry of, and the Court hereby orders the
`Parties to abide by, this Protective Order. This Protective Order is issued to facilitate
`document disclosure and production under the Local Rules of this Court and the
`Federal Rules of Civil Procedure. Information subject to this Protective Order may
`be used only for the purposes of a lawsuit governed by this Protective Order. Unless
`modified pursuant to the terms contained in this Protective Order or by a subsequent
`Protective Order, this Protective Order shall remain in effect through the conclusion
`of each lawsuit governed by this Protective Order.
`In support of this Order, the Parties allege that this action may involve trade
`secrets and other valuable commercial, financial, technical and/or proprietary
`information for which special protection from public disclosure and from use for any
`purpose other than prosecuting this action is warranted. Accordingly, to expedite the
`flow of information, to facilitate the prompt resolution of disputes over confidentiality
`of discovery Materials, to adequately protect information the Parties are entitled to
`keep confidential, and to ensure that the Parties are permitted reasonably necessary
`uses of such Materials in preparation for and in the conduct of trial, pursuant to
`Federal Rule of Civil Procedure 26(c), and for good cause shown,
`IT IS HEREBY ORDERED THAT:
`
`
`1 MMJ’s response to Plaintiff’s Second Amended Complaint is not due until July 5,
`2018. MMJ’s agreement to abide by the terms of this Protective Order is without
`waiver of any defenses, including any defenses under Fed. R. Civ. P. 12(b). All such
`defenses are reserved.
`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 6 of 37 Page ID #:494
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`I.
`
`DEFINITIONS
`A.
`“Party”: any Party to an action governed by this Protective Order,
`including all of its officers, directors, employees, and Outside Counsel (and their
`support staffs).
`B.
`“Material”: all information, documents, items and things produced,
`served or otherwise provided in this action (whether paper, electronic, tangible, or
`otherwise) by the Parties or by non-parties.
`C.
`“Producing Party”: a Party or non-party that produces Material in this
`action.
`D.
`“Receiving Party”: a Party that receives Material from a Producing Party.
`E.
`“Circuit Schematic Files”: A computer file or document containing a
`graphical representation of an integrated circuit that shows the connections between
`the various components of the circuit. Circuit Schematic Files include complete
`hierarchical printouts (e.g., in PDF format) of schematic and logical netlist views that
`are used for abstract level simulation, but not for device fabrication. Circuit
`Schematic Files do not include Physical Design Files.
`F.
`“Physical Design Files”: A computer file or document that shows the
`physical arrangement of the components of the integrated circuit, also called the
`circuit layout. Physical Design Files are typically the final output product of
`integrated circuit design that is used by a foundry to fabricate an integrated circuit.
`Physical Design Files may include, for example, GDS (Graphic Database System),
`GDSII stream format, DEF (Design Exchange Format), and LEF (Library Exchange
`Format) files, but do not include Circuit Schematic Files.
`G.
`“HDL Source Code’’: A computer file or files that contain electronic
`hardware descriptions in a hardware description language, such as Verilog or VHDL.
`HDL Source Code refers only to native electronic files that are in a human readable
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 7 of 37 Page ID #:495
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`format suitable for input to an assembler, compiler, interpreter, synthesis tool, or other
`translator.
`H.
`“Source Code”: Computer code, scripts, assembly, binaries, object code,
`source code listings and descriptions of source code, object code listings and
`descriptions of object code, and HDL Source Code or Register Transfer Level (RTL)
`files that describe the hardware design of any ASIC or other chip.
`I.
`“Source Code Material”: All Source Code, HDL Source Code, and
`Physical Design Files.
`J.
`“CONFIDENTIAL” Material: Material the Designating Party believes
`in good faith is not generally known to others, and that the Designating Party (i)
`would not normally reveal to third parties except in confidence or has undertaken
`with others to maintain in confidence, (ii) believes in good faith is protected by a right
`to privacy under federal or state law or any other applicable privilege or right related
`to confidentiality or privacy, or (iii) believes in good faith to constitute or to contain
`confidential and/or proprietary information not otherwise known or available to the
`public. Any party may use the “CONFIDENTIAL” designation only if, in the good
`faith belief of such party and its counsel, the unrestricted disclosure of such
`information and/or Materials could be potentially harmful to the business or
`operations of the party.
`K.
`“HIGHLY CONFIDENTIAL” Material: Material the Designating Party
`believes in good faith is not generally known to others and has significant competitive
`value such that unrestricted disclosure to others would create a substantial risk of
`serious injury, and which the Designating Party (i) would not normally reveal to third
`parties except in confidence or has undertaken with others to maintain in confidence,
`(ii) believes in good faith is protected by a right to privacy under federal or state law
`or any other applicable privilege or right related to confidentiality or privacy, or (iii)
`believes in good faith constitutes proprietary financial, research, development,
`technical, or commercially sensitive competitive information that the Producing Party
`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 8 of 37 Page ID #:496
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`maintains as highly confidential in its business or the disclosure of which is likely to
`cause harm to the competitive position of the Producing Party.
`L.
`“RESTRICTED CONFIDENTIAL - OUTSIDE COUNSEL’S EYES
`ONLY” Material: Material constituting Source Code Material as produced pursuant
`to Section II.I below or as incorporated into, for example, documents, answers to
`interrogatories, technical expert reports, or deposition testimony. RESTRICTED
`CONFIDENTIAL - OUTSIDE COUNSEL’S EYES ONLY Material shall include all
`Material referring or relating to the foregoing, including but not limited to copies,
`summaries, and abstracts of the foregoing.
`M.
`“Designating Party”: a Party or non-party that designates Material as
`“CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL,”
`or
`“RESTRICTED
`CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY.”
`N.
`“Designated Material” or “Designated Materials”: Material or Materials
`that is/are designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL,” or
`“RESTRICTED CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY.”
`O.
`that
`“Financial Material”: HIGHLY CONFIDENTIAL Material
`comprises proprietary financial or commercial information. Financial Material shall
`include without limitation, commercial agreements, licenses, and documents
`reflecting revenue, sales, profits, and/or costs.
`P.
`“Involved In The Prosecution Of Patents Or Patent Applications”:
`participation in any way on behalf of a patent owner/patent applicant or other person
`or entity having ownership or license in a patent or in a patent or reissue application,
`in:
`
`(i) drafting, reviewing prior to filing, approving, or prosecuting any portion
`(e.g., any claim, any figure, or any specification language) of a patent application
`(including, but not limited to, provisional, non-provisional, original, continuation,
`continuation-in-part, divisional, reissue, and/or continued prosecution applications),
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 9 of 37 Page ID #:497
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`(ii) assisting in drafting, amending or proposing for substitution patent claims in any
`post-grant proceeding, including without limitation, reexamination, inter partes
`review, covered business method review, or reissue proceedings on behalf of a
`patentee before the United States Patent and Trademark Office (which, for clarity,
`includes the Patent Trial and Appeal Board) or any foreign agency responsible for
`examining or issuing patents. This definition is not intended to: (1) prohibit sending
`non-confidential prior art to an attorney involved in patent prosecution for purposes
`of ensuring that such prior art is submitted to the U.S. Patent and Trademark Office
`(or any similar agency of a foreign government) to assist a patent applicant in
`complying with its duty of candor, or (2) prohibit any attorney of record in this
`litigation from discussing any aspect of this case that is reasonably necessary for the
`prosecution or defense of any claim or counterclaim in this litigation with his/her
`client.
`Q.
`“Involved In The Acquisition of Patents or Patent Rights”: participation
`in any way in the pre-acquisition evaluation or selection of patents or patent
`applications on behalf of a person or entity in connection with a potential acquisition
`of ownership or other rights involving the right to enforce such patents or patent
`applications or to license them to third parties.
`R.
`“Outside Counsel”: attorneys (including litigation and clerical support
`staff) who are not employees, directors, or officers of a Party or a Party’s parents,
`affiliates, or subsidiaries but who are counsel of record for a Party.
`S.
`“Outside Consultant”: a person with specialized knowledge or
`experience in a matter pertinent to this action who has been retained by a Party or its
`Outside Counsel to serve as an expert witness or as a consultant in this action, who is
`not a current employee of a Party.
`T.
`“Privileged Material”: a document, tangible item or electronically stored
`information that is privileged, protected by the work product doctrine, or subject to
`some other immunity from disclosure.
`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 10 of 37 Page ID #:498
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`U.
`“Technology At Issue”: DRAM Technology directly related to
`redundancy circuitry or input buffer circuitry.
`II. TERMS AND CONDITIONS
`A. General Limitations On Disclosure And Use Of Designated
`Material
`
`(a) Designated Material and the substance and content thereof,
`including any copies, notes, memoranda, summaries, excerpts, compilations, or other
`similar documents relating thereto, shall be used by a Receiving Party solely for the
`purpose of the litigations governed by this Protective Order and not for any other
`purpose, including, without limitation, other litigation, any business or commercial
`purpose, or dissemination to the media or public. Except for the Court and court
`personnel, any person in possession of Designated Material shall exercise reasonably
`appropriate care with regard to the storage, custody, or use of such Designated
`Material in order to ensure that the confidential nature of the Designated Material is
`maintained. If Designated Material is disclosed or comes into the possession of any
`person other than in the manner authorized by this Protective Order, any Party having
`knowledge of the disclosure must immediately inform the Producing Party and, if not
`the same person or entity, the Designating Party. Except for Designated Material in
`the possession of the Court or court personnel, Designated Material received by
`Receiving Parties must be stored and maintained at a location in the United States
`and in a secure manner that ensures that access is limited to the persons authorized
`under this Order. Notwithstanding the above, where a deponent is provided outside
`of the United States, the Receiving Party may transport Designated Materials to and
`from the location of the depositions. To ensure compliance with applicable United
`States Export Administration Regulations, the Producing Party will designate which
`documents are subject to this regulation by affixing the label - “Subject to United
`States Export Administration Regulation” - in a manner consistent with Section II.B
`below. Material designated as such may not be exported outside the United States or
`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 11 of 37 Page ID #:499
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`released to any foreign national (even if within the United States), without the express
`consent of the Producing Party.
`B.
`Procedure For Designating Materials
`(a) Documents and Other Tangible Materials. The designation of
`Material in the form of documents, discovery responses, or other tangible materials
`(other than depositions or other pre-trial testimony) shall be made by the Designating
`Party by conspicuously affixing (physically or electronically)
`the
`legend
`“CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL,”
`or
`“RESTRICTED
`CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” on each page
`containing information to which the designation applies (or in the case of computer
`medium, on the medium label and/or cover). To the extent practical, the legend shall
`be placed near the Bates number identifying the Material. If a document has more
`than one designation, the more restrictive or higher designation applies. Where
`electronic files and documents are produced in native electronic format, such
`electronic files and documents shall be designated for protection under this Order by
`providing notice to the recipient in the email, or shall use any other reasonable method
`for so designating Designated Materials produced in electronic format. When native
`electronic files or documents are printed, in total or in part, for use at deposition, in a
`court proceeding, or for provision in printed form to an Outside Consultant pre-
`approved pursuant to Section II.K., the Party printing the documents shall affix the
`original production number and confidentiality designation to every page of the
`document. No native file or document shall be printed or converted and used in this
`litigation for any purpose without including the original production number and
`confidentiality designation.
`(b) Non-tangible Materials. All Designated Materials that are not
`reduced to documentary, tangible, or physical form or that cannot be conveniently
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 12 of 37 Page ID #:500
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`designated in the manner set forth in Section II.B(a) above shall be designated by the
`Designating Party by informing the Receiving Party in writing.
`(c) Deposition Testimony and Transcripts. Any Party may designate
`“CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL,”
`or
`“RESTRICTED
`CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” Material that is
`disclosed at a deposition by indicating on the record at the deposition that the
`testimony is “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL” or “RESTRICTED
`CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” and is subject to the
`provisions of this Protective Order. In such cases the court reporter shall be informed
`of this Protective Order and shall be required to operate in a manner consistent with
`this Protective Order. In the event the deposition is videotaped, the original and all
`copies of the videotape shall be marked by the video technician to indicate that the
`contents of the videotape are subject to this Protective Order. Counsel for any
`Producing Party shall have the right to exclude from oral depositions, other than the
`deponent, deponent’s counsel, the reporter and videographer (if any), any person who
`is not authorized by this Protective Order to receive or access Designated Material
`based on the designation of such Designated Material. Such right of exclusion shall
`be applicable only during periods of examination or testimony regarding such
`Designated Material. Any Party may also designate Material as “CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL,” or “RESTRICTED CONFIDENTIAL – OUTSIDE
`COUNSEL’S EYES ONLY” by notifying the court reporter and all of the parties, in
`writing within fourteen (14) days after receipt of the final deposition transcript, of the
`specific pages and lines of the final transcript that should be treated thereafter as
`“CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL,”
`or
`“RESTRICTED
`CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY.” Unless previously
`designated in accordance with this Protective Order, all deposition transcripts shall
`be treated as “HIGHLY CONFIDENTIAL” for a period of fourteen (14) days after
`the receipt of the transcript.
`PROPOSED STIPULATED
`PROTECTIVE ORDER
`
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 13 of 37 Page ID #:501
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`(d) Non-party Designations. Non-parties who produce Material in
`this action may avail themselves of the provisions of this Protective Order, and such
`Material produced by non-parties shall be treated by the Parties in conformance with
`this Protective Order. A non-party’s use of this Protective Order for production of its
`Material does not entitle that non-party to have access to Material produced by any
`other Party in this action.
`C.
`Inadvertent Production
`(a)
`Inadvertent Failures to Properly Designate. If a Party or non-party
`inadvertently produces Material without labeling or otherwise designating it in
`accordance with the provisions of this Protective Order, the Party or non-party may
`give written notice to the Receiving Party that the Material produced is designated
`“CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL,”
`or
`“RESTRICTED
`CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” and should be treated
`as such in accordance with the provisions of this Protective Order. The Receiving
`Party must treat such Material according to its most recent designation of
`“CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL,”
`or
`“RESTRICTED
`CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” from the date such
`notice is received. If, before receiving such notice, the Receiving Party disclosed
`such Material to recipients who are not qualified to receive it under the most recent
`designation, the Receiving Party shall inform the Designating Party of such
`disclosure, including the identity of those persons to whom such disclosure was made,
`and make reasonable efforts to retrieve the information promptly from such persons
`and make reasonable efforts to limit any further disclosure to unauthorized persons.
`Inadvertent or unintentional production of “CONFIDENTIAL,” “HIGHLY
`CONFIDENTIAL,”
`or
`“RESTRICTED CONFIDENTIAL
`– OUTSIDE
`COUNSEL’S EYES ONLY” Material that is not so designated shall not be deemed
`a waiver in whole or in part of a claim for treatment as “CONFIDENTIAL,”
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`9
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 14 of 37 Page ID #:502
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`“HIGHLY CONFIDENTIAL,” or “RESTRICTED CONFIDENTIAL – OUTSIDE
`COUNSEL’S EYES ONLY.”
`(b) No Waiver of Privilege. The Parties agree to the following
`procedure in the event that Privileged Material is inadvertently produced:
`(1) A Producing Party that believes it has inadvertently
`produced Privileged Material shall have the right to request that the Material be
`returned;
`
`(2) The Producing Party shall specify in writing the Bates
`number of the document inadvertently produced and the basis of the privilege,
`doctrine, or immunity being asserted. Within seven (7) days of notifying the
`Receiving Party, the Producing Party will produce a privilege log listing the
`inadvertently produced document(s).
`(3) Upon receipt of the privilege log, the Receiving Party in
`possession of the Privileged Material shall destroy or return to the Producing Party
`any such Materials within five seven (7) days, except for one copy that may be used
`solely for the purpose of challenging the privilege of mistaken production. Such
`return or confirmation of destruction shall not preclude the Receiving Party from
`seeking to compel production of the materials within twenty-eight (28) days of
`receiving the privilege log or at such other time as the Parties agree to in writing, and
`shall not constitute an admission by the Receiving Party that the materials were, in
`fact, privileged or otherwise protected in any way. The Producing Party shall retain
`the Privileged Material for submission to the Court Discovery Master in the event the
`Receiving Party moves to compel. Any motion shall be in strict compliance with the
`Procedure for Handling Discovery Disputes before the Discovery Master. See Dkt.
`57 31. Summaries of inadvertently produced documents shall be destroyed by the
`Receiving Party within twenty-eight (28) days of receiving the privilege log if a
`motion to compel is not brought or is denied, whichever is later.
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Case 8:15-cv-00648-DOC-KES Document 54 Filed 05/25/18 Page 15 of 37 Page ID #:503
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`(4)
`If inadvertently produced privileged Material is used during
`a deposition, used as an exhibit to a pleading filed with the Court, or identified for
`use at trial or otherwise disclosed to the Court, the Producing Party has two (2) weeks
`from the date of disclosure to provide notice of the inadvertent production.
`Notwithstanding any other provision of this Order, failure to provide notice within
`this two (2) week period shall constitute a waiver of any applicable privileges or
`immunities with respect to the inadvertently produced privileged Material only, and
`shall not be construed as a general waiver of any applicable privilege or immunity
`with respect to the subject matter disclosed therein.
`D. Material Not Covered By This Protective Order
`No Material shall be deemed Designated Material if:
`(a)
`it is in the public domain at the time of disclosure;
`(b)
`it becomes part of the public domain as a result of publication not
`involving a violation of this Protective Order;
`(c)
`the Receiving Party can show it was in the Receiving Party’s
`rightful and lawful possession at the time of disclosure; or
`(d)
`the Receiving Party lawfully received it from a non-party without
`restriction as to disclosure, provided such non-party has the right to make the
`disclosure to the Receiving Party.
`E. Challenges To Designations
`(a) Exercise of Restraint and Care in Designating Material for
`Protection. Each Party that designates information or items for protection under this
`Protective Order must take care to limit any such designation to specific material that
`qualifies under the appropriate standards. The Designating Party must designate for
`protection only those documents or items that qualify, such that for example, an email
`or attachment that is otherwise associated or linked with the Designated Material, but
`that does not itself qualify for the same level of designation shall be designated
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`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`indiscriminate, or routinized designations are prohibited.
`separately. Mass,
`Designations that are shown to be unjustified or that have been made for an improper
`purpose (e.g., to unnecessarily encumber or retard the case development process or
`to impose unnecessary expenses and burdens on other Parties) may expose the
`Designating Party to sanctions. If it comes to a Designating Party’s attention that
`information or items that it designated for protection do not qualify for protection 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 mistaken designation.
`(b) Written Notice. A Party shall not be obligated to challenge the
`propriety of any designation of Material under this Protective Order at the time the
`designation is made, and a failure to do so shall not preclude a subsequent challenge
`thereto. If the Receiving Party disagrees with the designation of any Material, the
`Receiving Party may challenge such designation by providing the Outside Counsel
`for the Designating Party with written notice of such challenge, which identifies the
`Material as specifically as possible, and the grounds for the objection.
`(c) Meet and Confer. Within seven (7) days of receiving written
`notice from the Receiving Party that it is challenging the designation of certain
`Material, the Producing Party must explain the basis for its belief that the
`confidentiality designation was proper. If the Receiving Party continues to believe
`that the basis for the confidentiality designation is improper, the Receiving Party may
`file a motion with the Discovery Master. See Dkt. 57 31. The Challenged Material
`will be afforded by the parties the designated protection by the Producing Party until
`such time as the Discovery Master rules on the Receiving Party’s motion.
`(d)
`Judicial Intervention. The burden of persuasion in any such
`challenge proceeding shall be on the Designating Party. Until the Discovery Master
`rules on the challenge, or until the Designating Party withdraws such designation in
`writing, all Parties shall continue to afford the Material in question the level of
`protection to which it is entitled under the Designating Party’s designation. The
`PROPOSED STIPULATED
`PROTECTIVE ORDER
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`Parties’ entry into this Protective Order shall not preclude or prejudice any party from
`arguing for or against any designation, establish any presumption that a particular
`designation is valid, or alter the burden of proof that would otherwise apply in a
`dispute over discovery or disclosure of information.
`F.
`Inspection Of Materials
`Material made available for inspection by Outside Counsel for the Receiving
`Party shall initially be considered to be