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EMC Corp. v. Baker

United States District Court, D. Massachusetts

March 16, 2018

EMC CORPORATION, Plaintiff,
v.
RYAN BAKER, Defendant.

          Siobhan E. Mee, Michael S. Burkhardt (pro hac vice)

          Michael J. Puma (pro hac vice)

          Benjamin K. Jacobs (pro hac vice) Attorneys for Plaintiff EMC Corporation

          Michael N. Sheetz, Adam S. Gershenson, Clare M. Metcalfe Attorneys for Defendant Ryan Baker

          STIPULATED PROTECTIVE ORDER

         To expedite the flow, exchange, and use of forensic and other discovery material and exhibits at any and all depositions and hearings in the above-captioned matter (the “Lawsuit”), to facilitate the prompt resolution of disputes over confidentiality of such materials, to adequately protect information the parties to the above-captioned action (the “Parties”) are entitled to keep confidential, and to ensure that the Parties are permitted reasonably necessary uses of such materials in the conduct of this litigation, pursuant to Fed.R.Civ.P. 26(c), it is hereby ORDERED THAT:

         1. Scope:

         a. As described more fully below, the Parties, in advance of the hearing on EMC's Motion for a Preliminary Injunction and throughout the remainder of the litigation, may designate materials as CONFIDENTIAL MATERIAL or HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY (collectively, “Protected Litigation Material”).

         b. The protections conferred by this Stipulated Protective Order (the “Order”) cover not only Protected Litigation Material but also (1) any information copied or extracted from Protected Litigation Material; (2) all copies, excerpts, summaries, or compilations of Protected Litigation Material; and (3) any testimony, conversations, or presentations by Parties or their counsel that might reveal Protected Litigation Material.

         c. This Order shall not apply to and, thus, does not restrict any Party's use, for any purpose, of its own Protected Litigation Material.

         d. This Order shall not restrict any attorney who is a qualified recipient under the terms set forth herein from rendering advice to his or her client with respect to this action, and in the course thereof, from generally relying upon his or her examination of Protected Litigation Material. In rendering such advice or in otherwise communicating with the client, the attorney shall not disclose directly or indirectly the specific content of any Protected Litigation Material of another person or Party where such disclosure would not otherwise be permitted under the terms of this Order.

         e. Protected Litigation Material in discovery obtained under the terms of this Order may be used and disclosed only for purposes of this case and any appeal of this case. No Party or non-party shall make any other use of any such Protected Litigation Material, including but not limited to, use for commercialization or competitive purposes or use in any other legal or administrative proceeding, except as permitted by order of the Court.

         f. Protections afforded under this Order shall continue for the duration of the litigation unless subsequently modified by Order of the Court, on motion of a Party or sua sponte. A document designated under this Order shall not lose its protection or be subject to a different designation by virtue of the expiration of this Lawsuit, except by application to the Court in this action or in a court in a future action to lift the designation.

         2. Designation of Protected Litigation Material:

         a. “CONFIDENTIAL MATERIAL” designation means that the information is not publicly known and is of commercial value, is sensitive personal information, or is required by law or agreement to be kept confidential. In determining whether information should be designated as CONFIDENTIAL MATERIAL, each Party agrees to use such designation only in good faith.

         b. “HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY” designation means that the information is trade secrets or highly sensitive business, marketing, pricing, sales, personal or technical information, the disclosure of which would create a substantial risk of injury to an individual or to the business or competitive position of the Producing Party. In determining whether information should be designated as HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY, each party agrees to use such designation only in good faith.

         3. Labeling of Protected Litigation Material:

         a. Any Producing Party who produces or discloses Protected Litigation Material, including, without limitation, any information, document, thing, interrogatory answer, admission, pleading, or testimony, shall mark the same with the designation, where practical, by marking each page of a document, each separate part or component of a thing or each separate item of other information, as “CONFIDENTIAL MATERIAL” or as “HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY” as appropriate. If not practical to so mark the Protected Litigation Material itself, a container for or a tag attached to the Protected Litigation Material shall be so marked. If Protected Litigation Material exists that cannot be conveniently designated pursuant to this order, such information shall be designated by the Producing Party by informing the Receiving Party of the designation in writing. This designation is sufficient to entitle said information to the same confidential treatment as if the Protected Litigation material were designated as above.

         b. Notwithstanding the obligations to timely designate Protected Litigation Material, the inadvertent or unintentional failure to designate specific produced material as Protected Litigation Material shall not be deemed a waiver in whole or in part of the claim of confidentiality. Upon notice to the Receiving Party of such failure to designate, the Parties shall cooperate to restore the appropriate level of confidentiality to the inadvertently or unintentionally disclosed Protected Litigation Material. No Party shall be held in breach of this Order if, prior to notification of such later designation, such Protected Litigation Material had been disclosed or used in a manner inconsistent with such later designation. The Producing Party shall provide substitute copies bearing the corrected designations. Upon receipt of such substitute copies, the Receiving Party shall certify the destruction of the undesignated or improperly designated Protected Litigation Material.

         4. Depositions:

         Any attorney may designate deposition testimony and exhibits as Protected Litigation Material (a) during the taking of any deposition, or (b) after the conclusion of any deposition in accordance with Paragraph 3 above, within 30 days of counsel's first receipt of the deposition transcript. Upon designation as Protected Litigation Material, the deposition transcript, or portion of such, containing the Protected Litigation Material and the exhibits so designated shall be marked in accordance with this Order. The deposition transcript, copies thereof, and the substance or contents of the oral testimony and exhibits so designated as Protected Litigation material shall in all respects be treated by the attorneys for the parties, the parties, and any witnesses as Protected Litigation Material in accordance with the terms of this Order. Any attorney may also request that all persons other than the deponent or witness, the reporter, counsel and the individuals specified, as applicable, in Paragraph 6 hereof leave the deposition room during the confidential portion of the deposition.

         5. Contested Designations:

         A Party shall not be obligated to challenge the propriety of a designation of any Protected Litigation Material at the time such designation is made, and failure to do so shall not preclude a subsequent challenge thereto. In the event that a Party disagrees at any stage of these proceedings with the designation by the Producing Party of any information as Protected Litigation Material, the Parties shall try first to resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved, either Party may petition the court to challenge any document designated as “CONFIDENTIAL MATERIAL” or as “HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY.” The Producing Party shall move, within 21 days of the date of the Receiving Party's objection, for a determination by the Court as to whether the designated material constitutes Protected Litigation Material. The burden in any such proceeding shall be on the Producing Party to prove that the material or information is entitled to protection under this Protective Order as Protected Litigation Material. Disputed material shall remain Protected Litigation Material under the terms of this Protective order until the Court rules on such a motion. Failure to file such a motion within the 21 day period required by this Paragraph, or to obtain from the Court or the other party an extension of time for good cause shown, shall constitute a waiver by the Producing Party of any right to have the information at issue designated as Protected Litigation Material.

         6. Disclosure and Use of Protected Litigation Material:

         (a) A Receiving Party may disclose any type of Protected Litigation Material to any person for whom the Producing Party has first agreed in writing prior to any such disclosure.

         (b) During any hearing in the above-captioned matter, the Parties agree to take all reasonable steps to limit access to Protected Litigation Material consistent with this Order, including requesting that the Court set a protocol ...


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