Benebone LLC v. Pet Qwerks, Inc.

2 Ajansodnre.laa oL@evheanysnoens b(SoBonNe.3c2o3m926) sAteliv Sen. .Rnaaztaaui p(SskByN@ 2k4n6o,b9b2e2.)com andrea.levenson@haynesboone.com ali.razai@knobbe.com 3 HAYNES AND BOONE, LLP Adam R. Aquino (SBN 324,526) 600 Anton Boulevard, Suite 700 adam.aquino@knobbe.com 4 Costa Mesa, California 92626 KNOBBE, MARTENS, OLSON & Telephone: (949) 202-3000 BEAR, LLP 5 Facsimile: (949) 202-3001 2040 Main Street, Fourteenth Floor Irvine, CA 92614 6 Joseph Lawlor (admitted pro hac vice) Telephone: (949) 760-0404 joseph.lawlor@haynesboone.com Facsimile: (949) 760-9502 7 Richard Rochford (admitted pro hac vice) Benjamin B. Anger (SBN 269,145) 8 richard.rochford@haynesboone.com ben.anger@knobbe.com HAYNES AND BOONE, LLP KNOBBE, MARTENS, OLSON & 9 30 Rockefeller Plaza, 26th Floor BEAR, LLP New York, NY 10112 12790 El Camino Real 10 Telephone: (212) 659-7300 San Diego, CA 92130 Facsimile: (212) 918-8989 Telephone: (858) 707-4000 11 Facsimile: (858) 707-4001 12 Attorneys for Plaintiff Benebone LLC Attorneys for Defendant Pet Qwerks, Inc. [13] 14 UNITED STATES DISTRICT COURT 15 CENTRAL DISTRICT OF CALIFORNIA [16] BENEBONE LLC, Case No.: 8:20-cv-00850-AB-AFM [17] Plaintiff, [PROPOSED] STIPULATED [18] PROTECTIVE ORDER 19 v. 20 PET QWERKS, INC., [22] 23 Defendant. [28] 1 1. A. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of confidential, 3 proprietary or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation 5 may be warranted. Accordingly, the parties hereby stipulate to and petition the 6 Court to enter the following Stipulated Protective Order. The parties 7 acknowledge that this Order does not confer blanket protections on all 8 disclosures or responses to discovery and that the protection it affords from 9 public disclosure and use extends only to the limited information or items that are 10 entitled to confidential treatment under the applicable legal principles. 11 B. GOOD CAUSE STATEMENT 12 This action is likely to involve trade secrets, customer and pricing lists, 13 market research, and other valuable research, marketing, development, 14 commercial, financial, technical and/or proprietary information for which special 15 protection from public disclosure and from use for any purpose other than 16 prosecution of this action is warranted. Such confidential and proprietary materials 17 and information consist of, among other things, confidential business or financial 18 information, information regarding confidential business practices, or other 19 confidential research, development, or commercial information (including 20 information implicating privacy rights of third parties), information otherwise 21 generally unavailable to the public, or which may be privileged or otherwise 22 protected from disclosure under state or federal statutes, court rules, case decisions, 23 or common law. Information such as sales volumes, sales units, costs of goods 24 sold, price structures, business costs, profit margins, customer lists, marketing 25 strategies, and competitive business plans may need to be disclosed only to a 26 party’s attorneys due to the potential for competitive harm. Accordingly, to 27 expedite the flow of information, to facilitate the prompt resolution of disputes 28 over confidentiality of discovery materials, to adequately protect information the 1 parties are entitled to keep confidential, to ensure that the parties are permitted 2 reasonable necessary uses of such material in preparation for and in the conduct of 3 trial, to address their handling at the end of the litigation, and serve the ends of 4 justice, a protective order for such information is justified in this matter. To 5 adequately protect information the parties are entitled to keep confidential and to 6 prevent competitive harm, two tiers of confidentiality designations— 7 “CONFIDENTIAL” and “HIGHLY CONFIDENTIAL-ATTORNEY EYES 8 ONLY”—are required. It is the intent of the parties that information will not be 9 designated as confidential for tactical reasons and that nothing be so designated 10 without a good faith belief that it has been maintained in a confidential, non-public 11 manner, and there is good cause why it should not be part of the public record of 12 this case. 13 C. ACKNOWLEDGMENT OF PROCEDURE FOR FILING UNDER 14 SEAL 15 The parties further acknowledge, as set forth in Section 12.3, below, that this 16 Stipulated Protective Order does not entitle them to file confidential information 17 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed 18 and the standards that will be applied when a party seeks permission from the court 19 to file material under seal. 20 There is a strong presumption that the public has a right of access to judicial 21 proceedings and records in civil cases. In connection with non-dispositive 22 motions, good cause must be shown to support a filing under seal. See Kamakana 23 v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. 24 Gen. Motors Corp., 307 F.3d 1206 , 1210-11 (9th Cir. 2002), Makar-Welbon v. 25 Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated 26 protective orders require good cause showing), and a specific showing of good 27 cause or compelling reasons with proper evidentiary support and legal justification, 28 must be made with respect to Protected Material that a party seeks to file under 1 seal. The parties’ mere designation of Disclosure or Discovery Material as 2 CONFIDENTIAL does not—without the submission of competent evidence by 3 declaration, establishing that the material sought to be filed under seal qualifies as 4 confidential, privileged, or otherwise protectable—constitute good cause. 5 Further, if a party requests sealing related to a dispositive motion or trial, 6 then compelling reasons, not only good cause, for the sealing must be shown, and 7 the relief sought shall be narrowly tailored to serve the specific interest to be 8 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir. 9 2010). For each item or type of information, document, or thing sought to be filed 10 or introduced under seal in connection with a dispositive motion or trial, the party 11 seeking protection must articulate compelling reasons, supported by specific facts 12 and legal justification, for the requested sealing order. Again, competent evidence 13 supporting the application to file documents under seal must be provided by 14 declaration. 15 Any document that is not confidential, privileged, or otherwise protectable 16 in its entirety will not be filed under seal if the confidential portions can be 17 redacted. If documents can be redacted, then a redacted version for public viewing, 18 omitting only the confidential, privileged, or otherwise protectable portions of the 19 document, shall be filed. Any application that seeks to file documents under seal in 20 their entirety should include an explanation of why redaction is not feasible. 21 2. DEFINITIONS 22 2.1 Action: Case No. 8:20-cv-00850-AB-AFM 23 2.2 Challenging Party:a Party or Non-Party that challenges the 24 designation of information or items under this Order. 25 2.3 “CONFIDENTIAL” Information or Items: information (regardless 26 of how it is generated, stored or maintained) or tangible things that qualify for 27 protection under Federal Rule of Civil Procedure 26(c), and as specified above in 28 the Good Cause Statement. 1 2.4 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” 2 Information or Items: information (regardless of how it is generated, stored or 3 maintained) or tangible things or the portion thereof that a Designating Party 4 reasonably and in good faith believes qualify for protection under Federal Rule of 5 Civil Procedure 26(c) and as specified above in the Good Cause Statement, 6 including: 7 (a) trade secrets or other highly sensitive business information or product 8 expansion plans or developments, whose disclosure to a competitor would create a 9 substantial risk of injury; or 10 (b) any other category of information this Court subsequently affords 11 HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY status. 12 2.5 Counsel: Outside Counsel of Record and House Counsel (as well 13 as their support staff). 14 2.6 Designating Party: a Party or Non-Party that designates information or 15 items that it produces in disclosures or in responses to discovery as 16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY EYES 17 ONLY.” 18 2.7 Disclosure or Discovery Material: all items or information, regardless 19 of the medium or manner in which it is generated, stored, or maintained (including, 20 among other things, testimony, transcripts, and tangible things), that are produced 21 or generated in disclosures or responses to discovery in this matter. 22 2.8 Expert: a person with specialized knowledge or experience in a matter 23 pertinent to the litigation who has been retained by a Party or its counsel to serve 24 as an expert witness or as a consultant in this Action. 25 2.9 House Counsel: attorneys who are employees of a party to this Action. 26 House Counsel does not include Outside Counsel of Record or any other outside 27 counsel. 28 2.10 Non-Party: any natural person, partnership, corporation, association or 1 other legal entity not named as a Party to this action. 2 2.11 Outside Counsel of Record: attorneys who are not employees of a 3 party to this Action but are retained to represent or advise a party to this Action 4 and have appeared in this Action on behalf of that party or are affiliated with a law 5 firm that has appeared on behalf of that party, and includes support staff. 6 2.12 Party: any party to this Action, including all of its officers, directors, 7 employees, consultants, retained experts, and Outside Counsel of Record (and their 8 support staffs). 9 2.13 Producing Party: a Party or Non-Party that produces Disclosure or 10 Discovery Material in this Action. 11 2.14 Professional Vendors: persons or entities that provide litigation 12 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 13 demonstrations, and organizing, storing, or retrieving data in any form or medium) 14 and their employees and subcontractors. 15 2.15 Protected Material: any Disclosure or Discovery Material that is 16 designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY 17 EYES ONLY” 18 2.16 Receiving Party: a Party that receives Disclosure or Discovery 19 Material from a Producing Party. 20 3. SCOPE 21 The protections conferred by this Stipulation and Order cover not only 22 Protected Material (as defined above), but also (1) any information copied or 23 extracted from Protected Material; (2) all copies, excerpts, summaries, or 24 compilations of Protected Material; and (3) any testimony, conversations, or 25 presentations by Parties or their Counsel that might reveal Protected Material. Any 26 use of Protected Material at trial shall be governed by the orders of the trial judge. 27 This Order does not govern the use of Protected Material at trial. [28] 1 4. DURATION 2 Once a case proceeds to trial, information that was designated as 3 CONFIDENTIAL or maintained pursuant to this protective order used or 4 introduced as an exhibit at trial becomes public and will be presumptively 5 available to all members of the public, including the press, unless compelling 6 reasons supported by specific factual findings to proceed otherwise are made to the 7 trial judge in advance of the trial. See Kamakana, 447 F.3d at 1180 -81 8 (distinguishing “good cause” showing for sealing documents produced in 9 discovery from “compelling reasons” standard when merits-related documents are 10 part of court record). Accordingly, the terms of this protective order do not extend 11 beyond the commencement of the trial. 12 5. DESIGNATING PROTECTED MATERIAL 13 5.1 Exercise of Restraint and Care in Designating Material for Protection. 14 Each Party or Non-Party that designates information or items for protection under 15 this Order must take care to limit any such designation to specific material that 16 qualifies under the appropriate standards. To the extent practicable, the 17 Designating Party must designate for protection only those parts of material, 18 documents, items or oral or written communications that qualify so that other 19 portions of the material, documents, items or communications for which protection 20 is not warranted are not swept unjustifiably within the ambit of this Order. 21 Mass, indiscriminate or routinized designations are prohibited. Designations 22 that are shown to be clearly unjustified or that have been made for an improper 23 purpose (e.g., to unnecessarily encumber the case development process or to 24 impose unnecessary expenses and burdens on other parties) may expose the 25 Designating Party to sanctions. 26 If it comes to a Designating Party’s attention that information or items that it 27 designated for protection do not qualify for protection, that Designating Party must 28 promptly notify all other Parties that it is withdrawing the inapplicable designation. 1 5.2 Manner and Timing of Designations. Except as otherwise provided in 2 this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise 3 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 4 under this Order must be clearly so designated before the material is disclosed or 5 produced. 6 Designation in conformity with this Order requires: 7 (a) for information in documentary form (e.g., paper or electronic 8 documents, but excluding transcripts of depositions or other pretrial or trial 9 proceedings), that the Producing Party affix at a minimum, the legend 10 “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), or the legend 11 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” (hereinafter 12 “HIGHLY CONFIDENTIAL legend”) to at least the first page of the document 13 that contains Protected Material. If only a portion or portions of the material on a 14 page qualifies for protection, the Producing Party also must clearly identify the 15 protected portion(s) (e.g., by making appropriate markings in the margins). 16 A Party or Non-Party that makes original documents available for inspection 17 need not designate them for protection until after the inspecting Party has indicated 18 which documents it would like copied and produced. During the inspection and 19 before the designation, all of the material made available for inspection shall be 20 deemed “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY.” After the 21 inspecting Party has identified the documents it wants copied and produced, the 22 Producing Party must determine which documents, or portions thereof, qualify for 23 protection under this Order. Then, before producing the specified documents, the 24 Producing Party must affix the “CONFIDENTIAL legend” or “HIGHLY 25 CONFIDENTIAL legend” to each page that contains Protected Material. If only a 26 portion of the material on a page qualifies for protection, the Producing Party also 27 must clearly identify the protected portion(s) (e.g., by making appropriate 28 markings in the margins). 1 (b) for testimony given in deposition or other proceeding, the Designating 2 Party shall specify all protected testimony and the level of protection being 3 asserted or, in the alternative, it may designate on the record at the deposition that 4 the entire transcript be designated CONFIDENTIAL or HIGHLY 5 CONFIDENTIAL – ATTORNEY EYES ONLY. If the Designating Party 6 designates the entire transcript CONFIDENTIAL or HIGHLY CONFIDENTIAL – 7 ATTORNEY EYES ONLY, within 21 days after the final transcript is available, 8 the Designating Party must provide written notice to the other party specifically 9 identifying by page and line number all portions of the transcript that should be 10 treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY 11 EYES ONLY” in accordance with this Stipulated Protective Order, otherwise the 12 entire transcript will be de-designated and not afforded any protection as including 13 confidential information. The Producing Party will have the right to exclude 14 from attendance at a deposition, during such time as the Protected Material is to be 15 disclosed, any person other than the deponent, counsel, the court reporter, the 16 videographer, designated experts, and any person(s) agreed upon by counsel for the 17 Producing Party. 18 (c) for information produced in some form other than documentary and 19 for any other tangible items, that the Producing Party affix in a prominent place on 20 the exterior of the container or containers in which the information is stored the 21 legend “CONFIDENTIAL” or legend “HIGHLY CONFIDENTIAL.” If only a 22 portion or portions of the information warrants protection, the Producing Party, to 23 the extent practicable, shall identify the protected portion(s). 24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent 25 failure to designate qualified information or items does not, standing alone, waive 26 the Designating Party’s right to secure protection under this Order for such 27 material. Upon timely correction of a designation, the Receiving Party must make 28 reasonable efforts to assure that the material is treated in accordance with the 1 provisions of this Order. 2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 3 6.1 Timing of Challenges. Any Party or Non-Party may challenge a 4 designation of confidentiality at any time that is consistent with the Court’s 5 Scheduling Order. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute 7 resolution process under Local Rule 37-1 et seq. 8 6.3 Joint Stipulation. Any challenge submitted to the Court shall be via a 9 joint stipulation pursuant to Local Rule 37-2. 10 6.4 The burden of persuasion in any such challenge proceeding shall be 11 on the Designating Party. Frivolous challenges or designations made for an 12 improper purpose (e.g., to harass or impose unnecessary expenses and burdens on 13 other parties) may expose the Challenging Party to sanctions. Unless the 14 Designating Party has waived or withdrawn the confidentiality designation, all 15 parties shall continue to afford the material in question the level of protection to 16 which it is entitled under the Producing Party’s designation until the Court rules on 17 the challenge. 18 7. ACCESS TO AND USE OF PROTECTED MATERIAL 19 7.1 Basic Principles. A Receiving Party may use Protected Material that is 20 disclosed or produced by another Party or by a Non-Party in connection with this 21 Action only for prosecuting, defending or attempting to settle this Action. Such 22 Protected Material may be disclosed only to the categories of persons and under 23 the conditions described in this Order. When the Action has been terminated, a 24 Receiving Party must comply with the provisions of section 13 below (FINAL 25 DISPOSITION). 26 Protected Material must be stored and maintained by a Receiving Party at a 27 location and in a secure manner that ensures that access is limited to the persons 28 authorized under this Order. 1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless 2 otherwise ordered by the court or permitted in writing by the Designating Party, a 3 Receiving Party may disclose any information or item designated 4 “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this Action and 6 other attorneys from Outside Counsel of Record’s law firm, as well as employees 7 of said Outside Counsel of Record to whom it is reasonably necessary to disclose 8 the information for this Action; 9 (b) the officers, directors, and employees (including House Counsel) of 10 the Receiving Party to whom disclosure is reasonably necessary for this Action; 11 (c) Experts (as defined in this Order) of the Receiving Party to whom 12 disclosure is reasonably necessary for this Action and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the Court and its personnel; 15 (e) court reporters and their staff; 16 (f) professional jury or trial consultants, mock jurors, and Professional 17 Vendors to whom disclosure is reasonably necessary for this Action and who have 18 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 19 (g) the author or recipient of a document containing the information or a 20 custodian or other person who otherwise possessed or knew the information; 21 (h) during their depositions, witnesses, and attorneys for witnesses, in the 22 Action to whom disclosure is reasonably necessary provided: (1) the deposing 23 party requests that the witness sign the form attached as Exhibit A hereto; and (2) 24 they will not be permitted to keep any confidential information unless they sign the 25 “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise 26 agreed by the Designating Party or ordered by the court. Pages of transcribed 27 deposition testimony or exhibits to depositions that reveal Protected Material may 28 be separately bound by the court reporter and may not be disclosed to anyone 1 except as permitted under this Stipulated Protective Order; and 2 (i) any mediator or settlement officer, and their supporting personnel, 3 mutually agreed upon by any of the parties engaged in settlement discussions. 4 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEY EYES 5 ONLY” Information or Items. Unless permitted in writing by the Designating 6 Party, a receiving party may disclose material designated HIGHLY 7 CONFIDENTIAL – ATTORNEY EYES ONLY without further approval only to: 8 (a) The Receiving Party’s Outside Counsel of Record in this action and 9 other attorneys from Outside Counsel of Record’s law firm and employees of 10 Outside Counsel of Record to whom it is reasonably necessary to disclose the 11 information for this Action; 12 (b) Experts (as defined in this Order) of the Receiving Party to whom 13 disclosure is reasonably necessary for this Action and who have signed the 14 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 15 (c) the Court and its personnel; 16 (d) court reporters and their staff; 17 (e) professional jury or trial consultants, and Professional Vendors to 18 whom disclosure is reasonably necessary, and who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 20 (f) the author or recipient of a document containing the material, or a 21 custodian or other person who otherwise possessed or knew the information; 22 (g) any mediator or settlement officer, and their supporting personnel, 23 mutually agreed upon by any of the parties engaged in settlement discussions. 24 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY 25 CONFIDENTIAL-ATTORNEY EYES ONLY” Material to Experts. 26 (a) A party seeking to disclose to an expert retained by Outside Counsel 27 of Record any information or item that has been designated “CONFIDENTIAL” or 28 “HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY” must first (1) set 1 forth the full name of the expert and the city and state of his or her primary 2 residence, (2) attach a copy of the expert’s current resume, (3) identify the expert’s 3 current employer(s), (4) identify each person or entity from whom the expert has 4 received compensation or funding for work in his or her areas of expertise 5 (including in connection with litigation) in the past five years, and (5) identify (by 6 name and number of the case, filing date, and location of court) any litigation 7 where the expert has offered expert testimony, including by declaration, report, or 8 testimony at deposition or trial, in the past five years. If the expert believes any of 9 this information at (3) - (5) is subject to a confidentiality obligation to a third party, 10 then the expert should provide whatever information the expert believes can be 11 disclosed without violating any confidentiality agreements, and the party seeking 12 to disclose the information to the expert shall be available to meet and confer with 13 the Designating Party regarding any such confidentiality obligations. 14 (b) A party that makes a request and provides the information specified in 15 Section 7.4(a) may disclose the designated material to the identified expert unless, 16 within seven days of delivering the request, the party receives a written objection 17 from the Designating Party providing detailed grounds for the objection. 18 (c) A Party that receives a timely written objection (“Objecting Party”) 19 must meet and confer with the Designating Party (through direct voice-to-voice 20 dialogue) to try to resolve the matter by agreement within seven days of the written 21 objection. If no agreement is reached, the Party objecting to the disclosure to the 22 Expert may file a motion as provided under L.R. 37-1 through L.R. 37-4. 23 (d) In any such proceeding, the Party opposing disclosure to the Expert 24 shall bear the burden of proving that the risk of harm that the disclosure would 25 entail (under the safeguards proposed) outweighs the Receiving Party’s need to 26 disclose the Protected Material to its Expert. 27 (e) Unless the Objecting Party has waived or withdrawn the 28 confidentiality designation, the material in question shall not be disclosed to the 1 relevant expert until the Court rules on the objection. 2 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED 3 IN OTHER LITIGATION 4 If a Party is served with a subpoena or a court order issued in other litigation 5 that compels disclosure of any information or items designated in this Action as 6 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEY EYES 7 ONLY” that Party must: 8 (a) promptly notify in writing the Designating Party. Such notification 9 shall include a copy of the subpoena or court order; 10 (b) promptly notify in writing the party who caused the subpoena or order 11 to issue in the other litigation that some or all of the material covered by the 12 subpoena or order is subject to this Protective Order. Such notification shall 13 include a copy of this Stipulated Protective Order; and 14 (c) cooperate with respect to all reasonable procedures sought to be 15 pursued by the Designating Party whose Protected Material may be affected. 16 If the Designating Party timely seeks a protective order, the Party served 17 with the subpoena or court order shall not produce any information designated in 18 this action as Protected Material before a determination by the court from which 19 the subpoena or order issued, unless the Party has obtained the Designating Party’s 20 permission. The Designating Party shall bear the burden and expense of seeking 21 protection in that court of its confidential material and nothing in these provisions 22 should be construed as authorizing or encouraging a Receiving Party in this Action 23 to disobey a lawful directive from another court. 24 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 25 PRODUCED IN THIS LITIGATION 26 (a) The terms of this Order are applicable to information produced by a 27 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 28 CONFIDENTIAL – ATTORNEY EYES ONLY.” Such information produced by 1 Non-Parties in connection with this litigation is protected by the remedies and 2 relief provided by this Order. Nothing in these provisions should be construed as 3 prohibiting a Non-Party from seeking additional protections. 4 (b) In the event that a Party is required, by a valid discovery request, to 5 produce a Non-Party’s confidential information in its possession, and the Party is 6 subject to an agreement with the Non-Party not to produce the Non-Party’s 7 confidential information, then the Party shall: 8 (1) promptly notify in writing the Requesting Party and the Non9 Party that some or all of the information requested is subject to a confidentiality 10 agreement with a Non-Party; 11 (2) promptly provide the Non-Party with a copy of the Stipulated 12 Protective Order in this Action, the relevant discovery request(s), and a reasonably 13 specific description of the information requested; and 14 (3) make the information requested available for inspection by the 15 Non-Party, if requested. 16 (c) If the Non-Party fails to seek a protective order from this court within 17 14 days of receiving the notice and accompanying information, the Receiving 18 Party may produce the Non-Party’s confidential information responsive to the 19 discovery request. If the Non-Party timely seeks a protective order, the Receiving 20 Party shall not produce any information in its possession or control that is subject 21 to the confidentiality agreement with the Non-Party before a determination by the 22 court. Absent a court order to the contrary, the Non-Party shall bear the burden 23 and expense of seeking protection in this court of its Protected Material. 24 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a Receiving Party learns that, by inadvertence or otherwise, it has 26 disclosed Protected Material to any person or in any circumstance not authorized 27 under this Stipulated Protective Order, the Receiving Party must immediately (a) 28 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 1 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 2 the person or persons to whom unauthorized disclosures were made of all the terms 3 of this Order, and (d) request such person or persons to execute the 4 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 5 A. 6 11 . INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE 7 PROTECTED MATERIAL 8 The inadvertent production of information that is subject to the attorney9 client privilege or work-product doctrine, or any other applicable privilege that 10 protects such material from is not a waiver of the attorney-privilege, or work11 product doctrine, or other applicable privilege or protection from discovery in this 12 case or in any other federal or state proceeding. This Order shall be interpreted to 13 provide the maximum protection allowed by Federal Rule of Evidence 502. 14 If a Party through inadvertence produces or provides Disclosure or 15 Discovery Material which it believes is subject to a claim of an applicable 16 privilege, the Producing Party may give written notice to the Receiving Party that 17 the Disclosure or Discovery Material is subject to a claim of privilege and request 18 that it be returned to the Producing Party. If a Producing Party or Non-Party 19 requests the return, pursuant to this paragraph, of any Disclosure or Discovery 20 Material, the Receiving Party shall not use or disclose, and shall immediately 21 return to the Producing Party all copies of such Disclosure or Discovery Material 22 or confirm that all copies have been destroyed. Return of the Disclosure or 23 Discovery Material by the Receiving Party shall not constitute an admission or 24 concession, or permit any inference, that the returned Disclosure or Discovery 25 Material is, in fact, properly subject to a claim of privilege nor shall it foreclose 26 any Party from moving the court for an order that such Disclosure or Discovery 27 Material has been improperly designated for reasons other than a waiver caused by 28 the inadvertent production. 1 12. MISCELLANEOUS 2 12.1 Right to Further Relief. Nothing in this Order abridges the right of any 3 person to seek its modification by the Court in the future. 4 12.2 Right to Assert Other Objections. By stipulating to the entry of this 5 Protective Order, no Party waives any right it otherwise would have to object to 6 disclosing or producing any information or item on any ground not addressed in 7 this Stipulated Protective Order. Similarly, no Party waives any right to object on 8 any ground to use in evidence of any of the material covered by this Protective 9 Order. 10 12.3 Filing Protected Material. A Party that seeks to file under seal any 11 Protected Material must comply with Local Civil Rule 79-5. Protected Material 12 may only be filed under seal pursuant to a court order authorizing the sealing of the 13 specific Protected Material at issue. If a Party’s request to file Protected Material 14 under seal is denied by the court, then the Receiving Party may file the information 15 in the public record unless otherwise instructed by the court. 16 13. PROSECUTION BAR 17 Absent written consent from the Designating Party, any individual who 18 receives access to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY 19 information shall not be involved in the prosecution of patent applications 20 concerning the field of the invention of the patents-in-suit for the Receiving Party 21 or its acquirer, successor, predecessor, or other affiliate during the pendency of this 22 action and for one year after its conclusion, including any appeals. “Prosecution” 23 means drafting, amending, advising on the content of, or otherwise affecting the 24 scope or content of patent claims or specifications. These prohibitions shall not 25 preclude counsel from participating in reexamination or inter partes review 26 proceedings to challenge or defend the validity of any patent, but counsel may not 27 participate in the drafting of amended claims in any such proceedings. [28] 1 14. FINAL DISPOSITION 2 After the final disposition of this Action, as defined in paragraph 4, within 3 60 days of a written request by the Designating Party, each Receiving Party must 4 return all Protected Material to the Producing Party or destroy such material. As 5 used in this subdivision, “all Protected Material” includes all copies, abstracts, 6 compilations, summaries, and any other format reproducing or capturing any of the 7 Protected Material.Whether the Protected Material is returned or destroyed, the 8 Receiving Party must submit a written certification to the Producing Party (and, if 9 not the same person or entity, to the Designating Party) by the 60 day deadline that 10 (1) identifies (by category, where appropriate) all the Protected Material that was 11 returned or destroyed and (2) affirms that the Receiving Party has not retained any 12 copies, abstracts, compilations, summaries or any other format reproducing or 13 capturing any of the Protected Material. Notwithstanding this provision, Counsel 14 are entitled to retain an archival copy of all pleadings, motion papers, trial, 15 deposition, and hearing transcripts, legal memoranda, correspondence, deposition 16 and trial exhibits, expert reports, attorney work product, and consultant and expert 17 work product, even if such materials contain Protected Material. Any such 18 archival copies that contain or constitute Protected Material remain subject to this 19 Protective Order as set forth in Section 4 (DURATION). 20 15. VIOLATION 21 Any violation of this Order may be punished by appropriate measures 22 including, without limitation, contempt proceedings and/or monetary sanctions. [23] 24 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: [28] 1 HAYNES AND BOONE, LLP 3 || Dated: October 27, 2020 By: _ /s/ Joseph Lawlor Jason T. Lao (SBN 288161) 4 jason.lao @ haynesboone.com Andrea Levenson (SBN 323926) 5 andrea.levenson @ haynesboone.com HAYNES AND BOONE, LLP 6 600 Anton Boulevard, Suite 700 Costa Mesa, California 92626 7 Telephone: (949) 202-3000 g Facsimile: (949) 202-3001 Joseph Lawlor (admitted pre hac vice) 9 □□□□□□□□□□□□□□□□□□□□□□□□□□□□□ Richard Rochford (pro hac vice pending) 10 richard.rochford @ haynesboone.com HAYNES AND BOONE, LLP 11 30 Rockefeller Plaza, 26" Floor New York, NY 10112 12 Telephone: (212) 659-7300 13 Facsimile: (212) 918-8989 4 Attorneys for Plaintiff Benebone LLC [15] 16 KNOBBE, MARTENS, OLSON & BEAR, LLP [17] 18 Dated: October 27, 2020 By: /s/ Benjamin Anger Steven J. Nataupsky 19 Ali S. Razai Benjamin B. Anger 0 Adam R. Aquino [21] Attorneys for Defendant Pet Qwerks, Inc. [23] a4 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. [25] City Weck —~ 26 || DATED: _ 10/27/2020 7 Hon. Alexander F. MacKinnon United States Magistrate Judge [19] STIPUT ATED PROTECTIVE ORDER 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 _______________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective 6 Order that was issued by the United States District Court for the Central District 7 of California on [date] in the case of [insert formal name of the case and the 8 number and initials assigned to it by the court]. I agree to comply with and to be 9 bound by all the terms of this Stipulated Protective Order and I understand and 10 acknowledge that failure to so comply could expose me to sanctions and 11 punishment in the nature of contempt. I solemnly promise that I will not disclose 12 in any manner any information or item that is subject to this Stipulated Protective 13 Order to any person or entity except in strict compliance with the provisions of 14 this Order. I further agree to submit to the jurisdiction of the United States District 15 Court for the Central District of California for enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after 17 termination of this action. 18 I hereby appoint ____________________________ [print or type full name] of 19 ____________________________________ [print or type full address and 20 telephone number] as my California agent for service of process in connection 21 with this action or any proceedings related to enforcement of this Stipulated 22 Protective Order. 23 Date: _________________________ 24 City and State where sworn and signed: _______________________________ 25 Printed name: __________________________________ [26] 27 Signature: _____________________________________ [28] 33690687