LERACH 1 COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 2 MARK SOLOMON (151949) DOUGLAS R. BRITTON (188769) 3 VALERIE L. McLAUGHLIN (191916) GAVIN M. BOWIE (235532) 4 655 West Broadway, Suite 1900 San Diego, CA 92101 5 Telephone: [phone] (fax) 6 [e-mail] [e-mail] 7 [e-mail] [e-mail] 8 and SHAWN A. WILLIAMS (213113) 9 WILLOW E. RADCLIFFE (200087) ELI R. GREENSTEIN (217945) 10 JENNIE LEE ANDERSON (203586) MONIQUE C. WINKLER (213031) 11 100 Pine Street, Suite 2600 San Francisco, CA 94111 12 Telephone: [phone] (fax) 13 [e-mail] [e-mail] 14 [e-mail] [e-mail] 15 [e-mail] 16 Lead Counsel for Plaintiffs UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 In re ORACLE CORPORATION ) Master File No. C-01-0988-MJJ SECURITIES LITIGATION ) 19 ) CLASS ACTION ) 20 ) DECLARATION OF MARK SOLOMON IN This Document Relates To: ) SUPPORT OF ADMINISTRATIVE 21 ) REQUEST TO FILE MOTION FOR LEAVE ALL ACTIONS. ) TO FILE PLAINTIFFS' SECOND 22 FACTUAL SUPPLEMENT IN FURTHER SUPPORT OF THEIR OPPOSITION TO 23 DEFENDANTS' MOTION TO REVERSE THE SPECIAL MASTER'S ORDER RE: 24 SOFTWAR MATERIALS UNDER SEAL 25 26 27 28 DATE: TIME: JUDGE: N/A N/A Honorable Martin J. Jenkins
1 2
I, MARK SOLOMON, declare as follows: 1. I am an attorney duly licensed to practice before all the courts of the State of
3 California. I am a member of the law firm of Lerach Coughlin Stoia Geller Rudman & Robbins 4 LLP, one of the counsel of record for plaintiffs in the above-entitled action. I have personal 5 knowledge of the matters stated herein and, if called upon, I could and would competently testify 6 thereto. 7 2. I submit this Declaration in Support of Plaintiffs' Administrative Request to File
8 Motion for Leave to File Plaintiffs' Second Factual Supplement in Further Support of Their 9 Opposition to Defendants' Motion to Reverse the Special Master's Order Re: SOFTWAR Materials 10 Under Seal. 11 3. Plaintiffs' Second Factual Supplement in Further Support of Their Opposition to
12 Defendants' Motion to Reverse the Special Master's Order Re: SOFTWAR Materials contains 13 references to a transcript marked "confidential" by defendants. 14 4. This information is subject to the provisions of the Revised Stipulated Protective
15 Order Governing Confidentiality entered on January 11, 2005 (attached hereto as Exhibit A). 16 I declare under penalty of perjury under the laws of the United States of America that the
17 foregoing is true and correct. Executed this 4th day of April, 2007 at San Francisco, California. 18 19 20 21 22 23 24 25 26 27 28
DECL OF MARK SOLOMON IN SUPPORT OF ADMIN REQ TO FILE MOT FOR LEAVE TO FILE PLAINTIFFS' SECOND FACTUAL SUPPLEMENT - C-01-0988-MJJ
T:\casessf\oracle3\DEC00040634.doc
/s/ MARK SOLOMON
-1-
1 2
CERTIFICATE OF SERVICE I hereby certify that on April 4, 2007, I electronically filed the foregoing with the Clerk of the
3 Court using the CM/ECF system which will send notification of such filing to the e-mail addresses 4 denoted on the attached Electronic Mail Notice List, and I hereby certify that I have mailed the 5 foregoing document or paper via the United States Postal Service to the non-CM/ECF participants 6 indicated on the attached Manual Notice List. 7 I further certify that I caused this document to be forwarded to the following designated
8 Internet site at: http://securities.lerachlaw.com/. 9 I certify under penalty of perjury under the laws of the United States of America that the
10 foregoing is true and correct. Executed on April 4, 2007. 11 12 13 14 15 16 E-mail: [e-mail] 17 18 19 20 21 22 23 24 25 26 27 28 LERACH COUGHLIN STOIA GELLER RUDMAN & ROBBINS LLP 655 West Broadway, Suite 1900 San Diego, CA 92101-3301 Telephone: [phone] (fax) /s/ MARK SOLOMON
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Mailing Information for a Case 3:01-cv-00988-MJJ
Electronic Mail Notice List
The following are those who are currently on the list to receive e-mail notices for this case. Jennie Lee Anderson [e-mail] Eric J. Belfi [e-mail] [e-mail] Doug Britton [e-mail] [e-mail];[e-mail] Patrick Edward Gibbs [e-mail] [e-mail] Eli Greenstein [e-mail] [e-mail];[e-mail] Kirke M. Hasson [e-mail] [e-mail] Reed R. Kathrein [e-mail] [e-mail] Michele F. Kyrouz [e-mail] Nicole Lavallee [e-mail] William S. Lerach [e-mail] James C. Maroulis [e-mail] Caroline McIntyre [e-mail] [e-mail] Valerie McLaughlin [e-mail] [e-mail] Brian P Murray [e-mail] Shinyung Oh
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[e-mail] Willow E. Radcliffe [e-mail] [e-mail];[e-mail] Darren J. Robbins Sanna Rachel Singer [e-mail] [e-mail] Mark Solomon [e-mail] [e-mail];[e-mail] Shawn A. Williams [e-mail] [e-mail];[e-mail];[e-mail];moniquew@lerachlaw Jamie Lynne Wine [e-mail] [e-mail] Monique Winkler [e-mail] [e-mail];[e-mail];[e-mail];travisd@lerachl
Manual Notice List
The following is the list of attorneys who are not on the list to receive e-mail notices for this case (who therefore require manual noticing). You may wish to use your mouse to select and copy this list into your word processing program in order to create notices or labels for these recipients.
Dorian Daley 500 Oracle Parkway Redwood City, CA 94065 Corey D. Holzer Holzer Holzer & Cannon LLC 1117 Perimeter Center West Suite E-107 Atlanta, GA 30338
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3/29/2007
EXHIBIT A
3 4 5 6 7 8. 9 10 11
MAYER, BROWN, ROWE & MAW LL P Donald M. Falk (SBN 150256 ) ~~ - UF O , Lee lL Rubin (SBN 141331 ) AV Shirish Gupta (SBN 205584 ) Two Palo Alto Square, Suite 300 R1Cli i l r .08 Palo Alto, California 94306 ~ttRx . ..~s P'! ! Telephone : .[phone] Facsimile: -2060 r ~x h650)31 1C t ( X hnbin(a nayerbrownrowe .com MAYER, BROWN, ROWE & MAW LLP Alan N. Salpeter (admitted pro hac vice) Javier Rubinstein (admitted pro hac vice) JA . N x 2005 190 South LaSalle Street Chicago, IL 60603-3441 RtcH Telephone : [phone] D. a EKlryG Facsimile: [phone] r." e4n jruhinstein @mayerbrownrowe .com Attorneys for Defendants ORACLE CORPORATION, LAWRENC E J. ELUSON, JEFFREY O . HENLEY, and EDWARD .1 SANDERSON ORA CORPORATION Dori Daley (SBN 129049) J as C. Maroulis (SBN 208316) Oracle Parkway
Malistop 50P7
15 16 17 18 19 20 21 22 23 This Document Relates,To : 24 ALL ACTIONS. 25 26 27 28
REVISED STIPULATED (PROPOSED ) PROTECTIVE ORDER; I CASE NO.: C-0 1 -0988-VIJJ
Redwood Shores, California 94065 Telephone: [phone] Facsimile : [phone] jim.maroulis@oracle .com Attorneys for Defendant ORACLE CORPORATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA-SAN FRANCISCO DIVISIO N IN RE ORACLE CORPORATION SECURITIES LITIGATION Case No. C-01-0988-MJJ (Consolidated) REVISED STIPULATED [PRDfl JE ] PROTECTIVE ORDER GOVERNING CONFIDENTIALIT Y
Judge Martin J . Jenkins
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1 . PURPOSES AND LEWrATIONS Disclosure and discovery activity in this aetion are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted . Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order . The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential . The parties further acknowledge, as set forth in paragraph 10, below, that this Stipulated Protective Order creates no entitlement to file confidential information under seal ; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that wil l be applied when a party seeks permission from the court to file material under seal .
14 1 2. DEFINITIONS 15 16 17 18 19 20 21 .22 23 24 . 25 26 27 28 2.1. parti, any party to this action, including all of its o fficers, directors, employees,
consultants, . retained experts, and outside counsel (and their support staff) . 2.2. Disclosure or Discovery Material : all items or information, regardless of the
medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter. 2 .3. "CONFIDENTIAL" Information or Items : information (regardless of how
generated, stored or maintained ) or tangible things that qualify for protection under standards developed under F.R.Civ.P. 26(c). 2.4. "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or
Items: extremely sensitive "CONFIDENTIAL Information or Items" whose disclosure to another Party or non-party Would create a substantial risk of serious injury that could not be avoided by less restrictive means. Only those items or information that derive independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtai n
REVISED STIPULATED [PROPOSED ] PROTECTIVE ORDER; CASE NO-- C-R-098$-MJJ
1 economic value from their disclosure or use shall be subject to "HIGHLY CONFIDENTIAL = 2 ATTORNEYS' EYES ONLY" protection. 3 2.5. ]lacewing Party: a Party that receives Disclosure or Discove ry Material from a
4 Producing Party. 5 2.6. ProducingPParty: a Party or non-party that p roduces Disclosure or Discovery
6 Material in this action . 7 2.7. DesiQnatin Pte: a Party or non-party that designates information or items that it
8 produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY 9 CONFIDENTIAL - ATTORNEYS' EYES ONLY ." 10 2.8. Protected Material: any Disclosure or Discovery Material that is designated as
11 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY ."
12 2.9. outside Counsel: attorneys who are not employees of a Party but who are retained
13 to represent or advise a Par ty i n this action.
14 2.10 . 15 2.11. 16 support staffs).
House Counsel: attorneys who are employees of a Party. C unsel (without qua lifier): Outside Counsel and House Counsel (as well as their
17 2 .12. . Expert: a person with specialized knowledge or experience in a matter pertinent to 18 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 19 consultant in this action and who is not a past or a current employee of a Par ty or a current 20 employee of a Party's competitor' and who, at the time of retention, is not anticipated to become an 21 employee of a Party or a competitor of a Party' s. This definition includes a professional jury o r 22 trial consultant retained in connection with this litigation. 23 2.13. Professional Vendors : persons or entities that provide litigation support services
24 (e.g., photocopying ;videotaping; translating preparing exhibits or demonstrations ; organizing, 25 storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 26 27 28 A list of Oracle.'s competitors is attached as Exhibit B. 2 .
REVISED STIPULATED [PROPOSED] PROTECTIVE ORDER; CASE NO. : C-01 -0988-MJJ
1 3. SCOPE 2 The protections conferred by this Stipulation and Order cover not only Protected Material 3 (as defined above), but also any information copied or extracted therefrom, as well as all copies, 4 excerpts, summaries, or compilations thereof ; plus testimony, conversations, or presentations by 5 parties or counsel to or in court or in other settings that might reveal Protected Material . 6 Nothing herein shall impose any restrictions on a Designating Party from disclosing its own 7 Protected Material as it deems appropriate . 8 9 4. DURATION 10 Even after the termination of this litigation, the confidentiality obligations imposed by this 11 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 12 otherwise directs. 13 14 5 . DESIGNATING PROTECTED MATERIAL ' 15 5.1. Exercise of Restrain and Care in Designating Material for Protection Each Party
16 or non-party that designates information or items for protection under this Order must do so in 17 good faith and take care to limit any such designation to specific material that will cause the party 18 . prejudice or harm pursuant to Rule 26(c) and governing standards ifnot protected . 19 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 20shown to be clearly unjustified, or that have been made for an improper purpose (e .g., to 21 unnecessarily encumber or retard the case development process, or to impose unnecessary 22 expenses and burdens on other parties), expose the Designating Party to sanctions . 23 If it comes to a Party's or a non-party's attention that information or items that it designated 24 for protection do not qualify for protection at all, or do not qualify for the level ofprotectio n 25 initially asserted, that Party or non-party must promptly notify all other parties that it is 26 withdrawing the mistaken designation . 27 5 .2. Manner and Timing of Designations . Except as otherwise provided in this Order
28 (see, eg., second paragraph ofparagraph 5 .2(a), below), or as otherwise stipulated or ordered ,
3 REVISED STIPULATED [PROPOSED] PROTECTIVE ORDER ; CASE NO.: C-0 1 -0988-MM
I
material that qualifies for protection under this Order must be clearly so designated before the
2 material is disclosed or produced . 3 Designation in conformity with this Order requires: 4 (a) for ormation in documentary foram (apart from transcripts of depositions or
5 other pretrial or trial proceedings), that the Producing party affix the legend "CONFIDENTIAL," 6 "CONFIDENTIAL- SUBJECT TO PROTEC IVE ORDER" or "HIGHLY CONFIDENTIAL 7 ATTORNEYS' EYES ONLY" on each page that cantaiins protected material. Within 30 days of 8 receipt of Disclosure or Discovery Material, any. Receiving party may designate the material a s 9 "CONFIDENTIAL" or -"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY ." 10 A Party or non-party that makes original documents or materials available for 11 inspection need not designate them for protection until a fter the inspecting Party has indicated
"1' .. S.S ..1. .~.n+arin~ i+xrnn~a ~i~s nnn~n~ ~nr~ neranaa T)ftissn k~s irnnsi+ti nn ewe Unri,.a ids .a sa+aL%,& .Wa as flvU. IJ A wrsv,+ .at a j.av a WLI. ai W.uLS wv LJJUkI L bA P&A wau aivavav s"a. }4 'VSU
13 designation, all of the material made available for inspection shall be deemed "HIGHLY 14 CONFIDENTIAL - ATTORNEYS' EYES ONLY ." After the inspecting Party has identified the 15 documents it wants copied and produced, the Producing Party must determine which documents, or' 16 portions thereof, qualify for protection under this Order, then, before producing the specified 17 documents , the Producing Partymust affix the appropriate legend ("CONFIDENTIAL," 18 "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "HIGHLY CONFIDENTIAL 19 ATTORNEYS' EYES ONLY") legend on each page that contains Protected Material . In addition, 20 within 30 days of receipt of Disclosure or Discovery Material, any Receiving party may designate 21 'the material as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -,ATTORNEYS' EYE S
22 ONLY.'j. 23 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 24 any Party may identify on the record, before the close of the deposition, hearing, or other 25 proceeding, all protected testimony, and further specify any portions of the testimony that qualify 26 as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL, -- ATTORNEYS' EYES ONLY ." When 27 it is impractical to identify separately each portion of 'testimony that is entitled to protection, an d
_ 28 when it appears that substantial portions of the testimony may qualify for protection, any Party may 4 REVISED STIPULATED [PROPOSED) PROTECTIVE ORDER ;
CASE NO.: G01-0988-MS5
1 invoke on the record (before the deposition or proceeding is concluded) a right to have up to 30 2 days after receipt of the certi fied transcript to identify the specific portions of the testimony as to 3 . which protection is sought and to specify the level .of protection being asserted 4 ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY") . Only 5 those portions of the testimony that are appropriately designated for protection within the 30 days 6 shall be covered by the provisions of this Stipulated Protective Order. 7 Transcript pages containing Protected Material must be separately bound by the 8 court reporter, who must affix to the top of each such page the legend "CONFIDENTIAL,"
9 "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "HIGHLY CONFIDENTIAL 10 ATTORNEYS' EYES ONLY." 11 (c) for information produced in some form other than documentary . and for any 12 other tangible items, that the Producing Party affix in a prominent place on the exterior of th e
13 container or containers in which the informa tion or item is stored the legend "CONFIDENTIAL," '14 "CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER" or "HIGHLY . CONFIDENTIAL 15 ATTORNEYS' EYES ONLY:' Within 30 days after receipt, any Receiving Party may designate 16 the information or item as "CONFIDEN I7AL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' 17 EYES ONLY."
18 5 .3. Inadvertent Failures to Designate. If timely corrected, an inadvertent failure t o
19 designate qualified informa tidn or items as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 20 ATTORNEYS' EYES ONLY" does not, standing alone, waive the any Party's right to secure 21 protection under this Order for such material If material is appropriately designated a s 22 . "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - . ATTORNEYS' EYES ONLY" after the 23 material was initially produced, the Receiving Party, on timely notification of the designa tion, must 24 make reasonable efforts to assure that the material is treated in accordance with the provisions of 25 this Order. 26 27 28 5
REVISED STIPULATED [ PROPOSEDI PROTECTIVE ORDER ; CASE NO.: C-0 1 -0 988-MJJ
1 6. CHALLENGING CONiF DRN 1ALITY DESIGNATION S 2 6.1. Timing of Challenges . Unless a prompt challenge to .a Designating Party' s
3 confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary 4 economic burdens, or a .later significant disruption or delay of the litigation, a Party does not waive 5 its right to challenge a confidentiality designation by electing not to mount a challenge promptl y 6 after the original designation is disclosed . 7 6.2. Meet and Confer. Party A that elects to initiate a challenge to a Designating
8 Patty's confidentiality designation must do so in good faith and must begin the process b y 9 conferring directly (in voice to voice dialogue; other fomnis of communication are not sufficient) 10 with counsel for the Designating Party. In conferring, the challenging Party must explain the basis 11 for its belief that the confidentiality designation was not proper and must give the Designatin g 12 Party an opportunity to review the designated material, to reconsider the circumstances, and, if no 13 change in designation is offered, to explain the basis for the chosen designation . A challenging ,14 Party may proceed to the next stage of the challenge process only if it has engaged in this meet and 15 confer process first. 16 63. Judicial Intervention. Except as provided in paragraph 6 .2, a Party that elects to
17 press a challenge to a confidentiality designation after -considering the justification offered by the 18 Designating Party may file and serve a motion under Civil Local Rule 7 (and in compliance with 19 Civil Local Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail 20 the basis for the challenge . Each such motion must be accompanied by a competent declaration 21 that aTmns that the movant has complied with the meet and confer requirements imposed in the 22, preceding paragraph and that sets forth with specificity the justification for the confidentialit y 23 designation that was given by the Designating Party in the meet and confer dialogue . 24 The burden of persuasion in any such challenge proceeding shall be on the Designating 25 Party. Until the court rules on the challenge, all parties shall continue to afford the material in 26 question the protection to which it is entitled under the Designating Party's designation . 27 (a) Judicial Intervention for Non-Party Documents. After a Party designates 28 documents produced by a non party pursuant to a Rule 45 subpoena as CONFIDENTIAL or 6
REVISED STIPULATED [PROPOSEDI PROTECTIVE ORDER ; CASE NO.: C-O1-0988-MJJ
1 HIGHI.Y CONFIDENTIAL under paragraph 5.2 of this Protective Order, and does so by no tifying 2 all parties in writing of each document so designated, any Party may challenge the designation by 3 notifying the Designating Party in writing of any such documents that it believes do not qualify for 4 protection under this Protective Order. The Designating Party and the challenging Par ty must then 5 meet and confer to attempt to resolve their disagreements within seven days of receipt of the 6 writing initiating the challenge . If,' after the seven-day period, the parties are unable to resolv e 7 their disagreements , the cha llenging Party must so notify the Designating Party in writing . Then, 8 the Designating Party must file and serve a mo tion under Civil Local Rule 7 (and in compliance 9 with Civil Local Rule 79-5, if applicable) to have the documents designated CONFI DENTIAL or 10 HIGHLY CONF IDENTIAL and must set forth in detail the basis for the designa tion. The motion 11 must be fi led and served within 14 days after the end of the meet and confer period ; otherwise, the 12 challenged designations wi ll be automatically lifted. Each such motion must be accompanied by a 13 competent declaration that affirms that the parties have met and conferred and are unable to resolve 14 their disagreements without judicial intervention and that sets forth with specificity the justification 15 for theconfidentiality designation that was given by the Designating Par ty in the meet and confer 16 dialogue.
17 The burden of persuasion in any such challenge proceeding shall be on the Designating 18 Party. Until the court rules on the challenge , all parties, shall continue to afford the material in 19 question the protection to which it is entitled under the Designating Par ty' s designation.
20 21 7. ACCESS TO AND USE OF PROTECTED MATERIA L 22 7 .1 . Basic Principles . A Receiving Party may use Protected Material that is disclosed
23 or produced by another Party or by a non-party in connection with this case only for prosecuting, 24 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 25 the categories ofpersons and under the conditions desc ribed in this Order. When the litigation has 26 been terminated , a Receiving Pa rty must comply with t he provisions of paragraph 11, belo w
27 (FINAL DISPOSITION) . 28
7 REVISED STIPULATED [ PROPOSED ] PROTECTIVE ORDER; CASE NO.. C-01-098S-MJJ
I
Protected Material must be stored and maintained .by a Receiving-Party at a location and in
2 a secure manner that ensures that access is limited'to the persons authorized under this Order. 3 7.2. Disclosure of "CONFIDENI7AL" Information or Items . Unless otherwise ordered
4 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 5 information or item designated CONF IDENTIAL only to: 6 (a) any Party, its attorneys, including in-house atto rneys, and the attorneys ' support 7 std 8 (b) any insurer or indemnitor of any defendant in this action; 9 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 10 reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by 11 Protective Order" (Exhibit A); 12 (d) the Court and its personnel ; 13 (e) court reporters, their staffs,and professional vendors to whom disclosure is 14 reasonably necessary for this liti gation; 15 . . (t) during their depositions, witnesses in the action to whom disclosure is reasonably 16 necessa ry and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A) . 17 Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Mate ri al 18 must be separately bound by the cou rt reporter and may not be disclosed to anyone except a s 19 permitted under this Stipulated Protecrive Order, 20 (g) any person who authored or previously received the document, or the original 21 source of the information ; 22 (h) any former Oracle employee (permanent or contract), director, or officer who 23 may have information relevant to this ac tion and who signs the "Agreement to Be Bound b y 24 Protective Order" (Exhibit A); and 25 (i) any witness at trial . 26 27 28
r
8
REVISED STIPULATED jPROPOSED ] PROTECITVE ORDER ; 'CASE NO.: C-0I-0988-MJJ
1 2
7 .3 .
Disclos of "HIGHLY CONF IDENTIAL - ATTORNEYS' EYES ONLY"
Information or Items . Unless otherwise ordered by the court or permitted in writing by th e
3 Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY 4 CONFIDENTIAL - ATTORNEYS' EYES ONLY" only to : 5 . (a) the Receiving Party's Outside Counsel of record in this action, as well a s
6 employees of said Counsel to whom it is reasonably necessary to disclose the information for this 7 litigation; $ (b) House Counsel of a Receiving Party to whom disclosure is reasonably necessary 9 for this litigation and who has signed the "Agreement to Be Bound by Protective Order" (Exhibit 10 A); I i (c) Experts (as defined in this Order) (1) to whom disclosure is reasonably necessary 12 for this litigation, (2) who have signed the "Agreement to Be Bound by Protective Order" 13 . (ExIibit A), and (3) as to whom the procedures set forth in paragraph 7 .4, below, have been 14 followed ; 15 (d) the Court and its personnel; 16 (e) court reporters, their staffs, and professional vendors to whom disclosure is 17 reasonably necessary for this litigation ; 18 (f) any person who authored or previously received the document, or the original 19 source of the information ; and 20 (g) any witness at trial . 21 7.4. 22 Procedures for Approving Disclosure of "HIGHLY CONFIDENTIAL-
ATTORNEYS' EYES ONLY" Information or Items to "Experts! '
23 (a) Unless otherwise ordered by the court or agreed in writing by the Designating 24 Party, a Party that seeks to disclose to an "Expert" (as defined in this Order) any information or 25 item that has been designated "HIGHLY CONF IDENTIAL - ATTORNEYS' EYES ONLY" first 26 must notify, in writing, the Designating Party of (1) the specific HIGHLY CONFIDENTIA L 27 information that the Receiving Party seeks to disclose to the Expert and (2) the full name of the 28 Expert and the city and state of his or her primary residence.
9 REVISED STIPULATED [PROPOSED] PROTECTIVE ORDER ; CASE NO.: C-01-0 988-WJ
I (b) A Party that provides the information specified in the preceding paragraph may 2 disclose the subject Protected Material to the identified Expert unless , within seven court days of 3 delivering the noti ce, the Party receives a written objection from the Designating Party. Any such 4 objection must set forth in detail the grounds on which it is based . 5 (c) A Party that receives a timely written objection must meet and confer with the 6 Designating Party (through direct voice to voice dialogue) to t ry to resolve the matter by 7 agreement . if no agreement is reached, the Party seeking to make the disclosure to the Expert may 8 file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 9 applicable) seeking permission from the court to do so . Any such motion must describe the 10 circumstances with specificity, set forth in detail the reasons for which the disclosure to the Expert 1.1 is reasonably necessary, assess the ri sk of harm that . the disclosure would entail and suggest any
12 additional means that miiiht be used to reduce that risk . In addition, any such motion must be 13 accompanied by a competent declaration in which the movant describes the parties' efforts to 14 resolve the matter by agreement (i .e., the extent and the. content of the meet and confer discussions) .15 and setsforth the reasons advanced by the Designating Party for its refusal to approve th e 16 disclosure. 17 In any such proceeding the Party opposing disclosure to the Expert shall bear the burden of 18 proving that the risk of harm that the disclosure would entail (under the safeguards proposed) I9 outweighs the Receiving Party's need to disclose the Protected Material to its Expert . 20 21 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTSER LITIGATION. .
22 If a Receiving Party is served with a subpoena or an order issued in other li tigation that 23 would compel disclosure of any information or items designated in this action a s 2,4 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" the 25 Receiving Party must so notify the Designating Party, in writing (by fax or email, if possible) 26 . immediately and in no event more than three court days after receiving the subpoena or order . 27 Such notification must include a copy of the subpoena or court order. 28
10 REVISED STIPULATED [ PROPOSED] PROTECTIVE ORDER;. CASE NO .: C-O1 -0988-MJJ
The Receiving Party also must immediately informs in writing the party who caused the f subpoena or order to issue in the other litigation that some or all the material covered by the 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 -23 24 25 26 27 28 10. FILING PROTECTED MATERIAL. Without wri tten permission from the Designating Party or a court order secured after appropriate notice to all interested persons, 'a Party may not file in the public record in this action any Protected Material . When a Party intends to file with the cou rt any document that has been marked "CONFIDENTIAL," "CONFIDENTIAL - SUBJECT TO PROTECTNE ORDER" or ."HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," it shall lodge the document with the covet on
REVISED STIPULATED [PROPOSEDJ PR...