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`IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
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`C.A. No. 2019-0767-TMR
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`) ) ) ) ) ) ) ) ) )
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`NEAPCO DRIVELINES, LLC,
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`Plaintiff,
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`
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`v.
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`ARCONIC, INC., d/b/a ARCONIC
`FORGINGS AND EXTRUSIONS,
`
`
`Defendant.
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`STIPULATION AND [PROPOSED] ORDER GOVERNING THE
`PRODUCTION AND EXCHANGE OF CONFIDENTIAL
`AND HIGHLY CONFIDENTIAL INFORMATION
`
`WHEREAS,
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`the parties
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`to
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`the above-captioned action
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`(the
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`“Litigation”) are engaged in discovery proceedings, which may include, among
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`other things, taking depositions and producing documents; and
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`WHEREAS, those discovery proceedings will necessarily involve the
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`production of certain information that the parties to the Litigation (the “Parties,”
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`each a “Party”) believe to be confidential and sensitive commercial, financial, or
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`business information;
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`IT IS HEREBY STIPULATED AND AGREED, by the Parties
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`hereto, through their undersigned counsel, subject to the approval of the Court,
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`pursuant to Court of Chancery Rules 5.1 and 26(c), that this Stipulation and Order
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`Governing the Production and Exchange of Confidential and Highly Confidential
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`EFiled: Oct 17 2019 09:45PM EDT
`Transaction ID 64329011
`Case No. 2019-0767-TMR
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`Information (the “Stipulation”) will govern the handling of documents, deposition
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`testimony, deposition exhibits, deposition transcripts, written discovery requests,
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`interrogatory responses, responses to requests to admit, and responses to requests
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`for documents and electronically stored information, and any other information or
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`material produced, given or exchanged, including any information contained
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`therein or derived therefrom (“Discovery Material”) by or among any Party or non-
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`Party providing Discovery Material (each a “Producing Party”) in this Litigation.
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`1.
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`Any Producing Party may designate any Discovery Material as
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`“Confidential” under the terms of this Stipulation if such Producing Party in good
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`faith and reasonably believes that such Discovery Material contains non-public,
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`confidential, business, strategic, proprietary, or commercially sensitive information
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`that requires the protections provided in this Stipulation (“Confidential Discovery
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`Material”). Any Producing Party may designate any Discovery Material as
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`“Highly Confidential-AEO” under the terms of this Stipulation if such Producing
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`Party in good faith and reasonably believes that disclosure of the Discovery
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`Material other than as permitted pursuant to Paragraph 6 of this Stipulation and
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`Order is substantially likely to cause injury to the Producing Party (“Highly
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`Confidential Discovery Material”).
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`2
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`2.
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`The designation of Discovery Material as Confidential
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`Discovery Material or Highly Confidential Discovery Material shall be made in the
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`following manner:
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`A.
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`In the case of documents or other materials (apart from
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`depositions or other pre-trial testimony): (i) by affixing the legend “Confidential”
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`or “Highly Confidential-AEO” to each page containing any Confidential Discovery
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`Material or Highly Confidential Discovery Material; or (ii) in the case of
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`electronically stored information produced in native format, by including
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`“Confidential” or “Highly Confidential-AEO” in the file or directory name, or by
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`affixing the legend “Confidential” or “Highly Confidential-AEO” to the media
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`containing the Discovery Material (e.g., CD-ROM, floppy disk, DVD, Flash Drive,
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`Thumb Drive).
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`B.
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`In the case of depositions or other pre-trial testimony: (i)
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`by a statement on the record, by counsel, at the time of such disclosure or before
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`the conclusion of the deposition or testimony; or (ii) by written notice, sent to all
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`Parties within 5 business days of receipt of the rough or final transcript (whichever
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`is received first) designating the entire transcript or portions thereof; provided that
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`only those portions of the transcript designated as Confidential Discovery Material
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`or Highly Confidential Discovery Material shall be deemed Confidential Discovery
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`Material or Highly Confidential Discovery Material. All depositions and other
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`3
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`pretrial testimony will be deemed to be Highly Confidential Discovery Material
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`until the expiration of the 5 business days after counsel receive a copy of the rough
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`or final transcript (whichever is received first), after which such deposition and
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`other pre-trial testimony will be treated in accordance with its confidentiality
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`designation, if any. The Parties may modify this procedure for any particular
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`deposition or other pre-trial testimony, through agreement on the record at such
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`deposition or testimony, without further order of the Court.
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`C.
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`In the case of any other Discovery Material, by written
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`notice that the Discovery Material constitutes Confidential Discovery Material or
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`Highly Confidential Discovery Material.
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`3.
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`The designation of Discovery Material as Confidential
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`Discovery Material or Highly Confidential Discovery Material shall constitute a
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`representation that such Discovery Material has been reviewed by an attorney
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`representing the Party making the designation, and that there is a good faith basis
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`for such designation.
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`4.
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`Inadvertent
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`failure
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`to designate Discovery Material as
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`Confidential Discovery Material or Highly Confidential Discovery Material shall
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`not constitute a waiver of such claim and may be corrected. A Producing Party
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`may designate as “Confidential” or “Highly Confidential-AEO” any Discovery
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`Material that has already been produced, including Discovery Material that the
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`4
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`Producing Party inadvertently failed to designate as Confidential Discovery
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`Material or Highly Confidential Discovery Material, (i) by notifying in writing the
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`Party to whom the production has been made (the “Receiving Party”) that the
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`Discovery Material constitutes Confidential Discovery Material or Highly
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`Confidential Discovery Material, or (ii) in a manner consistent with Paragraph 2.
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`Upon receiving such supplemental notice, the Parties shall thereafter mark and
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`treat the Discovery Material so designated as Confidential Discovery Material or
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`Highly Confidential Discovery Material, and such Discovery Material shall be
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`fully subject to this Stipulation from the date of such supplemental notice forward.
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`The Receiving Party shall make a reasonable, good faith effort to ensure that any
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`analyses, memoranda, notes, or other such materials generated based upon such
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`newly designated information are immediately treated as containing Confidential
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`Discovery Material or Highly Confidential Discovery Material. In addition, upon
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`receiving such supplemental written notice, any Receiving Party that disclosed the
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`Discovery Material before
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`its designation as “Confidential” or “Highly
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`Confidential” shall exercise its best efforts (i) to ensure the return or destruction of
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`such Discovery Material by any person not authorized to receive the Confidential
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`Discovery Material or Highly Confidential Discovery Material under the terms of
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`this Stipulation, (ii) to ensure that any documents or other materials derived from
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`such Discovery Material are treated as if the Discovery Material had been
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`5
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`designated as “Confidential” or “Highly Confidential-AEO” when originally
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`produced, (iii) to ensure that such Discovery Material is not further disclosed
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`except in accordance with the terms of this Stipulation and Order, and (iv) to
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`ensure that any such Discovery Material, and any information derived therefrom, is
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`used solely for the purposes described in Paragraph 10 of this Stipulation.
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`5.
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`Confidential Discovery Material may
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`be
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`disclosed,
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`summarized, described, characterized, or otherwise communicated or made
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`available in whole or in part only to the following persons for use in connection
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`with the Litigation and in accordance with this Stipulation:
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`A.
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`The Parties and the directors, officers, general partners,
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`limited partners of the Parties, or any subsidiary or affiliate thereof, who are
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`assisting with or making decisions concerning the Litigation, to the extent deemed
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`reasonably necessary by counsel of record for the purpose of assisting in the
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`prosecution or defense of the Litigation for use in accordance with this Stipulation;
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`B.
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`Counsel who
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`represent Parties
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`in
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`this Litigation
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`(including in-house counsel), and the partners, associates, paralegals, secretaries,
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`clerical, regular and temporary employees, and service vendors of such counsel
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`(including outside copying and litigation support services) who are assisting with
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`the Litigation for use in accordance with this Stipulation;
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`C.
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`Subject to Paragraph 8, experts or consultants assisting
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`6
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`counsel for the Parties, and partners, associates, paralegals, secretaries, clerical,
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`regular and temporary employees, and service vendors of such experts or
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`consultants (including outside copying services and outside support services) who
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`are assisting with the Litigation;
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`D.
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`Subject to Paragraph 9, witnesses or deponents, and their
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`counsel, only to the extent necessary to conduct or prepare for depositions or
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`testimony in this Litigation;
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`E.
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`Any person indicated on the face of a document or
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`accompanying covering letter, email, or other communication to be the author,
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`addressee, or an actual or intended recipient of the document, or, in the case of
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`meeting minutes and presentations, an attendee of the meeting;
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`F.
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`The Court, persons employed by the Court, and court
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`reporters transcribing any hearing, trial, or deposition in this Litigation or any
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`appeal therefrom; and
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`G. Any other person only upon (i) order of the Court entered
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`upon notice to the Parties, or (ii) written stipulation of, or statement on the record
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`by, the Producing Party who provided the Confidential Discovery Material being
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`disclosed, provided that such person signs an undertaking in the form attached as
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`Exhibit A hereto.
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`7
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`6.
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`Highly Confidential Discovery Material may be disclosed,
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`summarized, described, characterized, or otherwise communicated or made
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`available in whole or in part only to the following persons:
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`A. Outside Counsel who represent Parties in this Litigation,
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`and the partners, associates, paralegals, secretaries, clerical, regular and temporary
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`employees, and service vendors of such counsel (including outside copying and
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`litigation support services) who are assisting with the Litigation for use in
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`accordance with this Stipulation;
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`B.
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`Three in-house counsel for each Party (the “Designated
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`In-House Counsel”), provided that (i) transactional attorneys at Barack Ferrazzano
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`Kirschbaum & Nagelberg LLP may be designated as “Designated In-House
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`Counsel” for Plaintiff, and (ii) the designating Party inform the other Party of the
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`name of the Designated In-House Counsel in advance of sharing any Highly
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`Confidential Discovery Material;
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`C.
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`Subject to Paragraph 8, experts or consultants assisting
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`counsel for the Parties, and partners, associates, paralegals, secretaries, clerical,
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`regular and temporary employees, and service vendors of such experts or
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`consultants (including outside copying services and outside support services) who
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`are assisting with the Litigation;
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`D.
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`Subject to Paragraph 9, witnesses or deponents, and their
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`8
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`counsel, only to the extent necessary to conduct or prepare for depositions or
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`testimony in this Litigation, and provided that (i) such witnesses’ or deponents’
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`access to Highly Confidential Discovery Material shall be limited to use during
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`their preparation sessions with outside counsel or Designated In-House Counsel or
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`during their depositions or testimony, and (ii) witnesses or deponents shall not be
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`provided or permitted to retain any Highly Confidential Discovery Material outside
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`of the preparation sessions with outside counsel or outside of their depositions or
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`testimony;
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`E.
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`Subject to Paragraph 9, any person indicated on the face
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`of a document or accompanying covering letter, email, or other communication to
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`be the author, addressee, or an actual or intended recipient of the document, or, in
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`the case of meeting minutes and presentations, an attendee of the meeting;
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`F.
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`The Court, persons employed by the Court, and court
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`reporters transcribing any hearing, trial, or deposition in this Litigation or any
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`appeal therefrom; and
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`G. Any other person only upon (i) order of the Court entered
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`upon notice to the Parties, or (ii) written stipulation of, or statement on the record
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`by, the Producing Party who provided the Highly Confidential Discovery Material
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`being disclosed, and provided that such person signs an undertaking in the form
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`attached as Exhibit A hereto.
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`9
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`7.
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`Subject to Paragraph 25, to the extent that testimony is sought
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`concerning Confidential Discovery Material or Highly Confidential Discovery
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`Material during any deposition or in any other pre-trial venue, any Party may
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`exclude any person from the deposition or other venue during such testimony if the
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`Confidential Discovery Material or Highly Confidential Discovery Material may
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`not be disclosed to such person under the terms of this Stipulation.
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`8.
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`Notwithstanding Paragraphs 5(C) and 6(C), Confidential
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`Discovery Material or Highly Confidential Discovery Material may be provided to
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`persons listed therein only to the extent necessary for such expert or consultant to
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`prepare a written opinion, to prepare to testify, or to assist counsel in this
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`Litigation, provided that such expert or consultant (i) is not currently an employee
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`of, or advising or discussing employment with, or consultant to, any Party or any
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`competitor or potential transaction counterparty of any Party, as far as the expert or
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`consultant can reasonably determine, and (ii) is using said Confidential Discovery
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`Material or Highly Confidential Discovery Material solely in connection with this
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`Litigation; and further provided that such expert or consultant agrees to be bound
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`by the terms of this Stipulation by signing an undertaking in the form attached as
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`Exhibit A hereto. Counsel for the Party showing, providing, or disclosing
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`Confidential Discovery Material or Highly Confidential Discovery Material to any
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`person required to execute an undertaking pursuant to this paragraph shall be
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`10
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`responsible for obtaining such signed undertaking and retaining the original,
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`executed copy thereof. Under no circumstances shall an expert or consultant who
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`is a competitor or an employee of a competitor of a Party, or who is providing
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`services to any of the foregoing, be provided access to Confidential Discovery
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`Material or Highly Confidential Discovery Material absent further order of the
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`Court or consent of the Producing Party. “Competitors” are persons or entities
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`endeavoring to engage in the same or similar lines of business, provide the same or
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`similar services, sell the same or similar products, and/or operate in the same
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`markets, as well as any persons who are actually engaged in any of these activities.
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`9.
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`Notwithstanding Paragraphs 5(D) and 6(D), Confidential
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`Discovery Material or Highly Confidential Discovery Material may be provided to
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`persons listed therein only after (i) they confirm their understanding and agreement
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`to abide by the terms of the Stipulation by making such a statement on the record,
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`and/or by signing an undertaking in the form attached as Exhibit A hereto, or (ii) a
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`court of competent jurisdiction orders them to abide by the terms of this
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`Stipulation. Counsel for the Party showing Confidential Discovery Material or
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`Highly Confidential Discovery Material to any person required to execute an
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`undertaking pursuant to this paragraph shall be responsible for obtaining such
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`signed undertaking and retaining the original, executed copy thereof.
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`10. Discovery Material shall be used solely for purposes of this
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`Litigation and shall not be used for any other purpose, including, without
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`limitation, any business or commercial purpose, or any other litigation or
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`proceeding; provided, however, that the foregoing shall not apply to Discovery
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`Material that is or becomes part of the public record.
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`11. Every person to whom Discovery Material is disclosed,
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`summarized, described, characterized, or otherwise communicated or made
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`available, in whole or in part, shall be advised that the Discovery Material and the
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`information contained therein is being disclosed pursuant and subject to the terms
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`of this Stipulation and may not be disclosed or used for purposes other than those
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`permitted hereunder. Each such person shall maintain the Discovery Material, or
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`information derived therefrom, in a manner reasonably calculated to prevent
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`unauthorized disclosure. Any Party issuing a subpoena to a nonparty shall enclose
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`a copy of this Stipulation and notify the nonparty that the protections of this
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`Stipulation are available to such nonparty.
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`12. Any pleading, brief, memorandum, motion, letter, affidavit, or
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`other document filed with the Court that discloses, summarizes, describes,
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`characterizes, or otherwise communicates Confidential Discovery Material or
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`Highly Confidential Discovery Material (a “Confidential Filing”) must be filed
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`confidentially and not available for public access (“Confidential Treatment”) in
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`12
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`accordance with the provisions of Court of Chancery Rules 5.1 and 79.1 and the
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`Administrative Directive of the Chancellor of the Court of Chancery of the State of
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`Delaware Amended No. 2003-1, dated March 15, 2007, regarding e-File
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`Administrative Procedures, which may be accomplished by submitting documents,
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`every page of which shall have a footer stating the following:
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`THIS DOCUMENT IS A CONFIDENTIAL FILING.
`ACCESS
`IS
`PROHIBITED
`EXCEPT AS
`AUTHORIZED BY COURT ORDER.
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`In addition, every Confidential Filing must be submitted with a cover page
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`bearing the title of the Litigation, the title of the Confidential Filing, and stating:
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`YOU ARE IN POSSESSION OF A CONFIDENTIAL
`FILING FROM THE COURT OF CHANCERY OF
`THE STATE OF DELAWARE.
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`If you are not authorized by Court order to view or
`retrieve this document, read no further than this
`page. You should contact the following person:
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`[Filing Attorney or Party Name]
`[Filing Attorney Law Firm]
`[Filing Attorney or Party Address]
`[Filing Attorney or Party Telephone Number]
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`If a public version of the Confidential Filing will be filed in accordance with
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`Court of Chancery Rule 5.1(d), then the cover page shall also state:
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`A public version of this document will be filed on or before [DATE]
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`13. A Party making a Confidential Filing must comply with the
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`provisions of Court of Chancery Rule 5.1, including, without limitation, the
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`provisions governing the filing of a copy of the Confidential Filing for public
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`inspection that omits only the information that the Producing Party or any person
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`who has designated Confidential Information believes should continue to receive
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`Confidential Treatment for good cause. Notwithstanding the foregoing, the Parties
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`have no obligation to file public versions of any exhibits or attachments to a
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`Confidential Filing, unless otherwise ordered by the Court or required by the
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`Register in Chancery.
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`14. All materials filed pursuant to Paragraph 12 shall be released
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`from confidential treatment by the Register in Chancery only as provided in Court
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`of Chancery Rules 5.1(d) and 5.1(g), as applicable, or upon further order of this
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`Court. When any Party receives a notice from the Register in Chancery pursuant
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`to Rule 5.1 concerning the release of Confidential Filings which were filed with
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`the Court by such Party but contains Discovery Material designated as Confidential
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`Discovery Material or Highly Confidential Discovery Material by another
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`Producing Party, the Party receiving the notice shall deliver a copy of such notice
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`(by hand, email, or facsimile transmission) to counsel for the Producing Party (or
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`Producing Parties) within three business days of the receipt of such notice, if such
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`notice is not otherwise sent to such Producing Party by the Register in Chancery,
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`so as to enable the latter to seek further confidential treatment or to have the
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`documents returned or destroyed. The provisions of this paragraph may be waived
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`only with the prior written consent of the Producing Party.
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`15.
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`In accordance with the provisions of Court of Chancery Rule
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`5.1(f), any Party who objects to the continued restriction on public access to any
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`Confidential Filing, or any portion thereof, shall give written notice of the
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`objection to the Producing Party. If the Confidential Filing was a document for
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`which the filing of a public version was not required under Rule 5.1(d), the
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`Producing Party seeking to continue the restriction on public access to the
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`Confidential Filing, or any portion thereof, shall provide the notices and public
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`filings within the time periods required by Rule 5.1(f)(1). To the extent that the
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`Producing Party seeks to continue the restriction on public access to the
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`Confidential Filing, or any portion thereof, to which a public version is available,
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`the Producing Party shall file a motion with the Court within the five-day period
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`mandated by Court of Chancery Rule 5.1(f)(2). The filing of the motion
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`constitutes a certification that the signer of the motion personally reviewed the
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`Confidential Filing and that continued Confidential Treatment is appropriate. The
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`person challenging Confidential Treatment shall have five days to file an
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`opposition. The Court shall then determine whether Confidential Treatment will
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`be maintained, or whether a reply, hearing or further proceedings are warranted. If
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`a motion seeking continued Confidential Treatment is not timely filed, then the
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`15
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`Confidential Filing shall become part of the public record, and the Register in
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`Chancery shall permit access to the Confidential Filing on the docket system to the
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`same extent as any other public filing. If an opposition to the motion is not timely
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`filed, then the challenge shall be deemed withdrawn and the Confidential Filing
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`shall continue to receive Confidential Treatment.
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`16. During the pendency of this Litigation, any Party objecting to
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`the designation of any Discovery Material or testimony as Confidential Discovery
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`Material or Highly Confidential Discovery Material may, after making a good faith
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`effort to resolve any such objection, move on reasonable notice for an order
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`vacating the designation. While such an application is pending, the Discovery
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`Material or testimony in question shall be treated as Confidential Discovery
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`Material or Highly Confidential Discovery Material pursuant to this Stipulation.
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`The provisions of this Stipulation are not intended to shift any burdens of proof,
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`including the burden of establishing that any Discovery Material validly constitutes
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`Confidential Discovery Material or Highly Confidential Discovery Material, which
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`burden remains on the Producing Party that designates such Discovery Material or
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`testimony as Confidential Discovery Material or Highly Confidential Discovery
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`Material.
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`17. The Parties reserve the right to apply, pursuant to Court of
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`Chancery Rule 5.1 and/or Rule 26(c), upon short notice, for an order seeking
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`16
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`additional safeguards with respect to the use and handling of Discovery Material or
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`to modify the terms of this Stipulation.
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`18. Entering into this Stipulation, or agreeing to and/or producing
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`or receiving Discovery Material or otherwise complying with the terms of this
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`Stipulation, shall not:
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`A.
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`Prejudice in any way the rights of any Party to (i) seek
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`production of documents or information it considers subject to discovery, or (ii)
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`object to the production of documents or information it considers not subject to
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`discovery;
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`B. Operate as an admission by any Party that any particular
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`Discovery Material constitutes Confidential Discovery Material or Highly
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`Confidential Discovery Material or contains or reflects trade secrets or any other
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`type of confidential information;
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`C.
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`Prejudice in any way the rights of any Party to (i) petition
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`the Court for a further protective order relating to any purportedly Confidential
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`Discovery Material or Highly Confidential Discovery Material, or (ii) seek a
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`determination by the Court whether any Discovery Material or Confidential
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`Discovery Material or Highly Confidential Discovery Material should be subject to
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`the terms of this Stipulation;
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`D.
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`Prevent any Party from agreeing in writing to alter or
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`waive the provisions or protections provided herein with respect to any particular
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`Discovery Material;
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`E.
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`Prejudice in any way the rights of any Party to object to
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`the relevance, authenticity, use, or admissibility into evidence of any document,
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`testimony, or other evidence subject to this Stipulation;
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`F.
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`Preclude any Party from objecting to discovery that it
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`believes to be otherwise improper; or
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`G. Operate as a waiver of any attorney-client, work product,
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`business strategy, trade secret, or other privilege or protection.
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`19. This Stipulation has no effect upon, and shall not apply to, a
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`Producing Party’s use or disclosure of its own Discovery Material for any purpose.
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`Nothing herein shall: (i) prevent a Producing Party from disclosing its own
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`Discovery Material; or (ii) impose any restrictions on the use or disclosure by any
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`person of documents, materials, or information designated as Confidential
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`Discovery Material or Highly Confidential Discovery Material obtained lawfully
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`by such person independently of the discovery proceedings in this Litigation, and
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`not otherwise subject to confidentiality restrictions.
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`20.
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`If Discovery Material that is subject to a claim of attorney-
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`client privilege, attorney work product, or any other applicable privilege or
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`immunity or ground on which production of that information should not be made
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`18
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`to any Party (“Inadvertent Production Material”) is inadvertently produced to that
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`Party or Parties, such inadvertent production shall in no way prejudice or otherwise
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`constitute a waiver of, or estoppel as to, any claim of attorney-client privilege,
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`work product, or other applicable privilege or immunity.
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`A. A claim of inadvertent production shall constitute a
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`representation by that Producing Party that the Inadvertent Production Material has
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`been reviewed by an attorney for such Producing Party and that there is a good
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`faith basis for such claim of inadvertent production.
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`B.
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`If a claim of inadvertent production is made pursuant to
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`this Stipulation, with respect to Discovery Material then in the custody of another
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`Party, the Party possessing the Inadvertent Production Material shall: (i) refrain
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`from any further examination or disclosure of the claimed Inadvertent Production
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`Material; (ii) if requested, promptly make a good-faith effort to return the claimed
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`Inadvertent Production Material and all copies thereof (including summaries and
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`excerpts) to counsel for the Producing Party, or destroy all such claimed
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`Inadvertent Production Material (including summaries and excerpts) and all copies
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`thereof, and certify in writing to that fact; and (iii) not use the Inadvertent
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`Production Material for any purpose until further order of the Court.
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`C. A Party may move the Court for an order compelling
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`production of the claimed Inadvertent Production Material; however, while such
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`19
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`motion is pending, the Discovery Material in question shall be treated as
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`Inadvertent Production Material, and such motion may not assert as a ground for
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`entering such an order the fact or circumstance of the inadvertent production, nor
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`shall such motion include or otherwise disclose, as an attachment, exhibit, or
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`otherwise, the Inadvertent Production Material (or any portion thereof) that is the
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`subject of such motion.
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`21. Nothing herein shall be deemed to waive any applicable
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`common law or statutory privilege or work product protection.
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`22.
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`In the event additional Parties join or are joined in this
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`Litigation, they shall not have access to Confidential Discovery Material or Highly
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`Confidential Discovery Material until the newly joined Party by its counsel has
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`executed and filed with the Court its agreement to be fully bound by this
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`Stipulation.
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`23. The Parties agree to be bound by the terms of this Stipulation
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`pending the entry by the Court of this Stipulation, and any violation of its terms
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`shall be subject to the same sanctions and penalties as if this Stipulation had been
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`entered by the Court.
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`24. Subject to the requirements of Court of Chancery Rule 5.1(g)
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`and any applicable rule of the Delaware Supreme Court, the provisions of this
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`Stipulation shall, absent written permission of the Producing Party or further order
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`20
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`of the Court, continue to be binding throughout and after the conclusion of the
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`Litigation, including, without limitation, any appeals therefrom, except as provided
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`in Paragraph 25.
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`25.
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`In the event that any Confidential Discovery Material or Highly
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`Confidential Discovery Material is used in open court during any court proceeding
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`or filed as a trial exhibit, the material shall lose its confidential status and become
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`part of the public record, unless the Producing Party applies for and obtains an
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`order from this Court specifically maintaining the confidential status of particular
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`material. Prior to any court proceeding in which Confidential Discovery Material
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`or Highly Confidential Discovery Material is to be used, counsel shall confer in
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`good faith on such procedures that may be necessary or advisable to protect the
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`confidentiality of any such Confidential Discovery Material or Highly Confidential
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`Discovery Material.
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`26. Within 30 days after receiving notice of the entry of an order,
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`judgment, or decree finally disposing of this Litigation, or any other proceeding in
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`which Confidential Discovery Material or Highly Confidential Discovery Material
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`is permitted to be used, including the exhaustion of all possible appeals, and upon
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`the written request of the Producing Party, all persons having received Confidential
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`Discovery Material or Highly Confidential Discovery Material shall either (i) make
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`a good-faith and reasonable effort to return such material and all copies thereof
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`21
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`(including summaries, excerpts, and derivative works) to counsel for the Producing
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`Party; or (ii) make a good-faith and reasonable effort to destroy all Confidential
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`Discovery Material or Highly Confidential Discovery Material, and certify to that
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`fact in writing to counsel for the Producing Party. However, counsel for the
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`Parties shall be entitled to retain court papers, deposition and trial transcripts, and
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`litigation files (including attorney work product and discovery material containing
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`Confidential Discovery Material or Highly Confidential Discovery Material),
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`provided that such counsel, and employees of such counsel, shall maintain the
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`confidentiality thereof and shall not disclose such court papers, depositions and
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`trial transcripts, and litigation files (including attorney work product and discovery
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`material containing Confidential Discovery Material or Highly Confidential
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`Discovery Material), to any person except pursuant to a court order, agreement by
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`the Producing Party, or except as otherwise required by law. All materials returned
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`to the Parties or their counsel by the Court likewise shall be disposed of in
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`accordance with this paragraph.
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`27.
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`If any person in possession of Confidential Discovery Material
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`or Highly Confidential Discovery Material (the “Receiver”) receives a subpoena or
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`other compulsory process seeking the production or other disclosure of
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`Confidential Discovery Material or Highly Confidential Discovery Material
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`produced or designated as “Confidential” or “Highly Confidential-AEO” by a
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`22
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`Producing Party other than the Receiver (collectively, a “Demand”), the Receiver
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`shall give written notice (by hand, email, or facsimile transmission) to cou
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