American Cable Association v. Becerra ( 2022 )

1 ROB BONTA Attorney General of California 2 PAUL STEIN Supervising Deputy Attorney General 3 SARAH E. KURTZ JOHN D. ECHEVERRIA 4 P. PATTY LI Deputy Attorneys General 5 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 6 (415) 510-3817 7 Patty.Li@doj.ca.gov Attorneys for Defendant Rob Bonta, in his 8 official capacity as Attorney General 9 [Additional counsel listed on subsequent page] 10 11 IN THE UNITED STATES DISTRICT COURT 12 FOR THE EASTERN DISTRICT OF CALIFORNIA 13 14 ACA CONNECTS – AMERICA’S COMMUNICATIONS ASSOCIATION, No. 2:18-cv-2684 JAM DB 15 et al., STIPULATED PROTECTIVE 16 Plaintiffs, ORDER 17 v. 18 ROB BONTA, in his official capacity as Attorney General of California, 19 Defendant. 20 21 22 23 24 25 26 27 1 [Additional Counsel] 2 Scott H. Angstreich* Marc R. Lewis Leslie V. Pope* LEWIS & LLEWELLYN LLP 3 Alex A. Parkinson* 505 Montgomery Street, Suite 1300 KELLOGG, HANSEN, TODD, San Francisco, CA 94111 4 FIGEL, & FREDERICK, P.L.L.C. (415) 800-0591 1615 M Street NW, Suite 400 mlewis@lewisllewellyn.com 5 Washington, DC 20036 6 (202) 326-7900 Attorney for Plaintiffs ACA Connects – sangstreich@kellogghansen.com America’s Communications 7 lpope@kellogghansen.com Association f/k/a American Cable aparkinson@kellogghansen.com Association, CTIA – The Wireless 8 Association, NCTA – The Internet & Attorneys for Plaintiffs CTIA – The Television Association, and USTelecom 9 Wireless Association and USTelecom – – The Broadband Association The Broadband Association 10 Matthew A. Brill* Jeffrey A. Lamken Matthew T. Murchison* 11 MOLOLAMKEN LLP James A. Tomberlin* 12 The Watergate, Suite 500 LATHAM & WATKINS LLP 600 New Hampshire Ave., NW 555 Eleventh Street NW, Suite 1000 13 Washington, DC 20037 Washington, DC 20004 (202) 556-2000 (202) 637-2200 14 jlamken@mololamken.com matthew.brill@lw.com matthew.murchison@lw.com 15 Attorney for Plaintiff ACA Connects – james.tomberlin@lw.com America’s Communications Association 16 f/k/a American Cable Association Attorneys for Plaintiff NCTA – The Internet & Television Association 17 *Admitted pro hac vice 18 19 20 21 22 23 24 25 26 27 1 Plaintiffs ACA Connects – America’s Communications Association, CTIA – 2 The Wireless Association, NCTA – The Internet & Television Association, and 3 USTelecom – The Broadband Association (collectively, “Plaintiffs”), and 4 Defendant Rob Bonta, in his official capacity as Attorney General of California 5 (“Defendant,” and collectively with Plaintiffs, the “Parties”), by and through their 6 respective counsel, submit this Stipulated Protective Order in accordance with the 7 Local Rules of the United States District Court, Eastern District of California, Rules 8 141.1(b)(1) and 143. 9 I. PURPOSE AND LIMITATIONS 10 Discovery in this Action is likely to involve production of confidential, 11 proprietary, or private information for which special protection from public 12 disclosure and from use for any purpose other than prosecuting this litigation may 13 be warranted. Accordingly, the Parties hereby stipulate to and petition the Court to 14 enter the following Stipulated Protective Order. The Parties acknowledge that this 15 Protective Order does not confer blanket protections on all disclosures or responses 16 to discovery and that the protection it affords from public disclosure and use 17 extends only to the limited information or items that are entitled to confidential 18 treatment under the applicable legal principles. The Parties further acknowledge, as 19 set forth in Section XII.C, below, that this Stipulated Protective Order does not 20 entitle them to file information designated as “CONFIDENTIAL” or “HIGHLY 21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” under seal; Rule 141 of the 22 Local Rules of the United States District Court, Eastern District of California sets 23 forth the procedures that must be followed and the standards that will be applied 24 when a party seeks permission from the Court to file material under seal. 25 26 27 1 II. DEFINITIONS 2 A. “ACTION” refers to this pending federal lawsuit, ACA Connects – 3 America’s Communications Association v. Bonta, Case No. 2:18-cv-02684-JAM- 4 DB (E.D. Cal.). 5 B. “CHALLENGING PARTY” refers to a Party or Non-Party that 6 challenges the designation of information or items under this Protective Order. 7 C. “COMPETITOR” refers to any natural person, partnership, corporation, 8 association, or other legal entity who is engaged in the development, manufacture, 9 marketing, or sale of any product or service that competes or is intended to compete 10 with any product or service sold, offered, or otherwise provided by the Designating 11 Party. 12 D. “CONFIDENTIAL” refers to information (regardless of how it is 13 generated, stored, or maintained) or tangible things that qualify for protection under 14 Federal Rule of Civil Procedure 26(c). 15 E. “COUNSEL” (without qualifier) refers to Outside Counsel of Record 16 and In-House Counsel, including their respective support staff. 17 F. “COUNTERPARTY” refers to any natural person, partnership, 18 corporation, association, or other legal entity with which the Designating Party (1) 19 has entered into an Internet interconnection agreement, peering agreement, or 20 transit agreement, (2) has engaged in negotiations to enter into such an agreement, 21 or (3) reasonably anticipates engaging in negotiations to enter into such an 22 agreement. 23 G. “DESIGNATING PARTY” refers to a Party or Non-Party that 24 designates information or items that it produces in disclosures or in responses to 25 discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 26 ATTORNEYS’ EYES ONLY” in this Action. 27 1 H. “DISCLOSURE OR DISCOVERY MATERIAL” refers to all items or 2 information, regardless of the medium or manner in which it is generated, stored, or 3 maintained (including, among other things, testimony, transcripts, and tangible 4 things), that are produced or generated in disclosures or responses to discovery in 5 this Action. 6 I. “EXPERT” refers to a person with specialized knowledge or experience 7 in an action pertinent to the litigation who has been retained by a Party or its 8 counsel to serve as an expert witness or as a consultant in this Action. 9 J. “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” refers 10 to Disclosure or Discovery Material that the Designating Party believes in good 11 faith contains highly proprietary or extremely sensitive Confidential information, 12 the disclosure of which to another Party or Non-Party would create a substantial 13 risk of serious harm that could not be avoided by less restrictive means. 14 K. “IN-HOUSE COUNSEL” refers to attorneys who are employees of a 15 Party to this Action. In-House Counsel does not include Outside Counsel of 16 Record or any other outside counsel, nor does it include Counsel for Defendant 17 employed by the California Department of Justice. 18 L. “NON-PARTY” refers to any natural person, partnership, corporation, 19 association, or other legal entity not named as a Party to this Action. 20 M. “OUTSIDE COUNSEL OF RECORD” refers to attorneys who are not 21 employees of a Party to this Action but are retained to represent or advise a Party to 22 this Action and have appeared in this Action on behalf of that Party or are affiliated 23 with a law firm which has appeared on behalf of that Party. Outside Counsel of 24 Record includes Counsel for Defendant employed by the California Department of 25 Justice. 26 27 1 N. “PARTY” refers to any party to this Action, including all of its officers, 2 directors, employees, consultants, retained Experts, and Outside Counsel of Record 3 (and their support staffs). 4 O. “PRODUCING PARTY” refers to a Party or Non-Party that produces 5 Disclosure or Discovery Material in this Action. 6 P. “PROFESSIONAL VENDORS” refers to persons or entities that 7 provide litigation support services (e.g., photocopying, videotaping, translating, 8 preparing exhibits or demonstrations, and organizing, storing, or retrieving data in 9 any form or medium) and their employees and subcontractors. 10 Q. “PROTECTED MATERIAL” refers to any Disclosure or Discovery 11 Material that is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 12 – ATTORNEYS’ EYES ONLY,” as those terms are defined in this section, that is 13 produced or otherwise exchanged in this Action. 14 R. “PROTECTIVE ORDER” refers to this Stipulated Protective Order. 15 S. “RECEIVING PARTY” refers to any Party that receives Disclosure or 16 Discovery Material from a Producing Party. 17 III. SCOPE 18 The protections conferred by this Stipulation and Order cover not only 19 Protected Material, but also (1) any information copied or extracted from Protected 20 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; 21 and (3) any testimony, conversations, or presentations by Parties or their Counsel 22 that might reveal Protected Material. However, the protections conferred by this 23 Protective Order do not cover the following information: (a) any information that is 24 in the public domain at the time of disclosure to a Receiving Party or becomes part 25 of the public domain after its disclosure to a Receiving Party as a result of 26 publication not involving a violation of this Protective Order, including becoming 27 part of the public record through trial or otherwise; and (b) any information 1 obtained by the Receiving Party before or after the disclosure from a source who 2 obtained the information lawfully and under no obligation of confidentiality to the 3 Designating Party. Any use of Protected Material at trial shall be governed by a 4 separate agreement or order. 5 IV. DURATION 6 Even after final disposition of this litigation, the confidentiality obligations 7 imposed by this Protective Order shall remain in effect until a Designating Party 8 agrees otherwise in writing or a court order otherwise directs. Final disposition 9 shall be deemed to be the later of (1) dismissal of all claims and defenses in this 10 Action, with or without prejudice; and (2) final judgment herein after the 11 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of 12 this Action, including the time limits for filing any motions or applications for 13 extension of time pursuant to applicable law and the time limits for filing a petition 14 for writ of certiorari to the Supreme Court of the United States if applicable. 15 V. DESIGNATING PROTECTED MATERIAL 16 A. Exercise of Restraint and Care in Designating Material for 17 Protection 18 Each Party or Non-Party that designates information or items for protection 19 under this Protective Order must take care to limit any such designation to specific 20 material that qualifies under the appropriate standards. The Designating Party must 21 designate for protection only those parts of material, documents, items, or oral or 22 written communications that qualify so that other portions of the material, 23 documents, items, or communications for which protection is not warranted are not 24 swept unjustifiably within the ambit of this Protective Order. 25 Mass, indiscriminate, or routinized designations are prohibited. Designations 26 shall not be made that are clearly unjustified or that have been made for an 27 1 improper purpose (e.g., to unnecessarily encumber the case development process or 2 to impose unnecessary expenses and burdens on other parties). 3 If it comes to a Designating Party’s attention that information or items that it 4 designated for protection do not qualify for protection, that Designating Party must 5 promptly notify all other Parties that it is withdrawing the inapplicable designation. 6 B. Manner and Timing of Designations 7 Designation in conformity with this Protective Order requires: 8 (1) For information in documentary form (e.g., paper or electronic 9 documents, but excluding transcripts of depositions or other pretrial or trial 10 proceedings), the Producing Party shall affix the legend “CONFIDENTIAL” or 11 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that 12 contains Protected Material, before the material is disclosed or produced. If only a 13 portion or portions of the material on a page qualifies for protection, the Producing 14 Party also must clearly identify the protected portion(s) (e.g., by making 15 appropriate markings in the margins) and must specify, for each portion, the level 16 of protection being asserted. 17 A Party or Non-Party that makes original documents or materials available for 18 inspection need not designate them for protection until after the inspecting Party 19 has indicated which material it would like copied and produced. During the 20 inspection and before the designation, all of the material made available for 21 inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 22 ONLY.” After the inspecting Party has identified the documents it wants copied 23 and produced, the Producing Party must determine which documents, or portions 24 thereof, qualify for protection under this Protective Order. Then, before producing 25 the specified documents, the Producing Party must affix the appropriate legend 26 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 27 ONLY”) to each page that contains Protected Material. If only a portion or portions 1 of the material on a page qualifies for protection, the Producing Party also must 2 clearly identify the protected portion(s) (e.g., by making appropriate markings in 3 the margins) and must specify, for each portion, the level of protection being 4 asserted. 5 (2) For testimony given in deposition or in other pretrial or trial proceedings, 6 the Designating Party shall either (1) identify on the record or (2) identify, in 7 writing, within 21 days of receipt of the final transcript, the portions of the 8 transcript (if any) that shall be treated as “CONFIDENTIAL,” or “HIGHLY 9 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Alternatively, a Designating 10 Party may specify either (1) on the record at the proceeding or (2) in writing within 11 21 days of receipt of the final transcript, that the entire transcript shall be treated as 12 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 13 ONLY,” if there is a good-faith basis to do so. 14 Parties shall give the other parties notice if they reasonably expect a 15 deposition, hearing or other proceeding to include Protected Material so that the 16 other parties can ensure that only authorized individuals who have signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those 18 proceedings. The use of a document as an exhibit at a deposition or other pretrial 19 proceeding shall not in any way affect its designation as “CONFIDENTIAL” or 20 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in this Action. 21 Transcripts containing Protected Material shall have an obvious legend on the 22 title page that the transcript contains Protected Material, and the title page shall be 23 followed by a list of all pages (including line numbers as appropriate) that have 24 Protected Material and the level of protection being asserted by the Designating 25 Party. The Designating Party shall inform the court reporter of these requirements. 26 Any transcript that was not designated on the record pursuant to the first paragraph 27 of Section 2 above or is prepared before the expiration of a 21-day period for 1 designation shall be treated during that period as if it had been designated 2 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 3 otherwise agreed. After the expiration of the 21-day period, the transcript shall be 4 treated only as actually designated. 5 (3) For information contained in written discovery responses, the responses 6 may be designated as containing “CONFIDENTIAL” or “HIGHLY 7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information by means of a 8 statement at the conclusion of each response that contains such information 9 specifying the level of designation of the Protected Material and by placing a 10 legend at the front page of such discovery responses stating: “CONTAINS 11 CONFIDENTIAL INFORMATION/[the highest level of designation contained in 12 the answers].” If only a portion or portions of the information or item warrant 13 protection, the Producing Party, to the extent practicable, shall identify the 14 protected portion(s) and specify the level of protection being asserted. 15 (4) For information produced in some form other than documentary and for 16 any other tangible items, the Designating Party shall affix in a prominent place on 17 the exterior of the container or containers in which the information is stored the 18 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 19 EYES ONLY.” 20 C. Failure to Designate 21 If timely corrected, a failure to designate qualified information or items does 22 not, standing alone, waive the Designating Party’s right to secure protection under 23 this Protective Order for such material. Upon timely correction of a designation, 24 the Receiving Party must make reasonable efforts to assure that the material is 25 treated in accordance with the provisions of this Protective Order. 26 27 VI. CHALLENGING CONFIDENTIALITY DESIGNATIONS 1 A. Timing of Challenges 2 3 Any Party or Non-Party may challenge a designation of confidentiality at any 4 time. Unless a prompt challenge to a Designating Party’s confidentiality 5 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary 6 economic burdens, or a significant disruption or delay of the litigation, a party does 7 not waive its right to challenge a confidentiality designation by electing not to 8 mount a challenge promptly after the original designation is disclosed. 9 B. Meet and Confer 10 The Challenging Party shall initiate the dispute resolution process by 11 providing written notice of each designation it is challenging and describing the 12 basis for each challenge. To avoid ambiguity as to whether a challenge has been 13 made, the written notice must recite that the challenge to confidentiality is being 14 made in accordance with this specific section of the Protective Order. The parties 15 shall attempt to resolve each challenge in good faith and must begin the process by 16 conferring directly (in voice-to-voice dialogue; other forms of communication are 17 not sufficient) within fourteen (14) days of the date of service of notice. In 18 conferring, the Challenging Party must explain the basis for its belief that the 19 confidentiality designation was not proper and must give the Designating Party an 20 opportunity to review the designated material, to reconsider the circumstances, and, 21 if no change in designation is offered, to explain the basis for the chosen 22 designation. 23 C. Judicial Intervention 24 If the parties cannot resolve a challenge without court intervention, the 25 Designating Party shall file and serve a motion in this Court to retain confidentiality 26 within the later of twenty-one (21) days of the initial notice of challenge or within 27 fourteen (14) days of the parties agreeing that the meet and confer process will not 1 resolve their dispute. Each such motion must be accompanied by a competent 2 declaration affirming that the movant has complied with the meet-and-confer 3 requirements imposed in Section VI.B above. If the Designating Party fails to 4 make such a motion, including the required declaration, within the later of twenty- 5 one (21) days of the initial notice of challenge or within fourteen (14) days of the 6 parties agreeing that the meet and confer process will not resolve their dispute, the 7 confidentiality designation for each challenged designation shall be waived. In 8 addition, the Challenging Party may file a motion challenging a confidentiality 9 designation at any time if there is good cause for doing so, including a challenge to 10 the designation of a deposition transcript or any portions thereof. Any motion 11 brought pursuant to this provision must be accompanied by a competent declaration 12 affirming that the movant has complied with the meet and confer requirements 13 imposed by the preceding paragraph. 14 The burden of persuasion in any such challenge proceeding shall be on the 15 Designating Party. Frivolous challenges and those made for an improper purpose 16 (e.g., to harass or impose unnecessary expenses and burdens on other parties) may 17 expose the Challenging Party to sanctions. While a motion regarding 18 confidentiality is pending, all Parties shall continue to afford the material in 19 question the level of protection to which it is entitled under the Designating Party’s 20 designation until the Court rules on the challenge. 21 VII. ACCESS TO AND USE OF PROTECTED MATERIAL 22 A. Basic Principles 23 A Receiving Party may use Protected Material that is disclosed or produced by 24 another Party or by a Non-Party in connection with this Action only for 25 prosecuting, defending, or attempting to settle this Action. Such Protected Material 26 may be disclosed only to the categories of persons and under the conditions 27 described in this Protective Order. When the litigation has been terminated, a 1 Receiving Party must comply with the provisions of Section XIII below (FINAL 2 DISPOSITION). 3 Protected Material must be stored and maintained by a Receiving Party at a 4 location and in a secure manner that ensures that access is limited to the persons 5 authorized under this Protective Order. Any Counsel for a Party obtaining any 6 signed “Acknowledgment and Agreement to Be Bound” (Exhibit A) shall retain 7 that acknowledgment and need not disclose it to Counsel for other Parties until 8 further order of the Court. 9 B. Disclosure of “CONFIDENTIAL” Information or Items 10 Unless otherwise ordered by the Court or permitted in writing by the 11 Designating Party, a Receiving Party may disclose any information or item 12 designated “CONFIDENTIAL” only to: 13 (1) the Receiving Party’s Outside Counsel of Record in this Action, 14 including all paralegal assistants, support staff, and other employees of such 15 Outside Counsel of Record working under the supervision of such Counsel; 16 (2) the officers, directors, and employees (including In-House Counsel) of 17 the Receiving Party to whom disclosure is reasonably necessary for this litigation 18 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 19 A); 20 (3) Experts of the Receiving Party, including all assistants, support staff, and 21 other employees of such Experts working under the supervision of such Experts to 22 whom disclosure is reasonably necessary for this litigation, who have signed the 23 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 24 (4) the Court and its personnel; 25 (5) court reporters, videographers, and their staff, professional jury or trial 26 consultants, including mock jurors, and Professional Vendors to whom disclosure is 27 1 reasonably necessary for this litigation and who have signed the “Acknowledgment 2 and Agreement to Be Bound” (Exhibit A); 3 (6) during their depositions, witnesses in the Action to whom disclosure is 4 reasonably necessary and who have signed the “Acknowledgment and Agreement 5 to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or 6 ordered by the Court. Pages of transcribed deposition testimony or exhibits to 7 depositions that reveal Protected Material must be separately bound by the court 8 reporter in accordance with Section V.B.2 above and may not be disclosed to 9 anyone except as permitted under this Stipulated Protective Order; and 10 (7) the author or recipient of a document containing the information or a 11 custodian or other person who otherwise possessed or knew the information. 12 C. Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items 13 14 Unless otherwise ordered by the Court or permitted in writing by the 15 Designating Party, a Receiving Party may disclose any information or item 16 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 17 (1) the Receiving Party’s Outside Counsel of Record in this Action, 18 including all paralegal assistants, support staff, and other employees of such 19 Outside Counsel of Record working under the supervision of such Counsel; 20 (2) In-House Counsel of the Receiving Party (1) who has no involvement in 21 competitive decision-making, (2) to whom disclosure is reasonably necessary for 22 this litigation, (3) who has signed the “Acknowledgment and Agreement to Be 23 Bound” (Exhibit A), and (4) as to whom the procedures set forth in Section VII.D 24 below have been followed; 25 (3) Experts of the Receiving Party, including all assistants, support staff, and 26 other employees of such Experts working under the supervision of such Experts to 27 whom disclosure is reasonably necessary for this litigation, who have signed the 1 “Acknowledgment and Agreement to Be Bound” (Exhibit A), and as to whom the 2 procedures set forth in Section VII.E below have been followed; 3 (4) the Court and its personnel; 4 (5) court reporters, videographers, and their staff, professional jury or trial 5 consultants, including mock jurors, and Professional Vendors to whom disclosure is 6 reasonably necessary for this litigation and who have signed the “Acknowledgment 7 and Agreement to Be Bound” (Exhibit A); 8 (6) during their depositions in the Action, current employees of the 9 Designating Party to whom disclosure is reasonably necessary, with the consent of 10 the Designating Party1 or court order who have signed the “Acknowledgment and 11 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating 12 Party or ordered by the Court. Pages of transcribed deposition testimony or 13 exhibits to depositions that reveal “HIGHLY CONFIDENTIAL – ATTORNEYS’ 14 EYES ONLY” information or items must be separately bound by the court reporter 15 in accordance with Section V.B.2 above and may not be disclosed to anyone except 16 as permitted under this Stipulated Protective Order; and 17 (7) the author or recipient of a document containing the information or a 18 custodian or other person who otherwise possessed or knew the information. 19 D. Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 20 Information or Items to In-House Counsel 21 (1) Unless otherwise ordered by the Court or agreed to in writing by the 22 Designating Party, a Receiving Party that seeks to disclose to an In-House Counsel 23 any information or item that has been designated “HIGHLY CONFIDENTIAL – 24 25 1 The Receiving Party will not be required to identify specific “HIGHLY 26 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” documents that it intends to show at a deposition. Rather, the Receiving Party will generally inform the Designating Party that the 27 Receiving Party intends to show “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” documents to a current employee of the Designating Party at his or her deposition. 1 ATTORNEYS’ EYES ONLY” pursuant to Section V above must first make a 2 written request to the Designating Party that (i) sets forth the full name of the In- 3 House Counsel and the city and state of the In-House Counsel’s residence, and (ii) 4 describes the In-House Counsel’s current and reasonably foreseeable future primary 5 job duties and responsibilities in sufficient detail to determine if the In-House 6 Counsel is involved, or may become involved, in any competitive decision-making. 7 (2) A Receiving Party that makes a request and provides the information 8 specified in the preceding paragraph may disclose the subject Protected Material to 9 the identified In-House Counsel unless, within fourteen (14) days of delivering the 10 request, the Receiving Party receives a written objection from the Designating 11 Party. Any such objection must set forth in detail the grounds on which it is based. 12 (3) A Receiving Party that receives a timely written objection must meet and 13 confer with the Designating Party (through direct voice-to-voice dialogue) to try to 14 resolve the matter by agreement within seven days of the written objection. If no 15 agreement is reached, the Receiving Party seeking to make the disclosure to the In- 16 House Counsel may file a motion seeking permission from the Court to do so. Any 17 such motion must describe the circumstances with specificity, set forth in detail the 18 reasons why the disclosure to the In-House Counsel is reasonably necessary, assess 19 the risk of harm that the disclosure would entail, and suggest any additional means 20 that could be used to reduce that risk. In addition, any such motion must be 21 accompanied by a competent declaration describing the parties’ efforts to resolve 22 the matter by agreement (i.e., the extent and the content of the meet and confer 23 discussions) and setting forth the reasons advanced by the Designating Party for its 24 refusal to approve the disclosure. 25 In any such proceeding, the Designating Party opposing disclosure to the In- 26 House Counsel shall bear the burden of proving that the risk of harm that the 27 1 disclosure would entail (under the safeguards proposed) outweighs the Receiving 2 Party’s need to disclose the Protected Material to the In-House Counsel. 3 E. Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 4 Information or Items to Experts Employed By a Competitor or Counterparty 5 6 (1) Unless otherwise ordered by the Court or agreed to in writing by the 7 Designating Party, an Expert to whom a Receiving Party seeks to disclose any 8 information or item designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ 9 EYES ONLY” must be the subject of the written request procedure described 10 below, if the Expert is currently (a) a Competitor or Counterparty’s officer, director, 11 or employee; (b) a consultant or contractor retained by a Competitor to work on the 12 development, manufacture, marketing, or sale of any product or service to be 13 offered by the Competitor that competes or is intended to compete with any product 14 or service sold, offered, or otherwise provided by the Designating Party; or (c) a 15 consultant or contractor retained by a Counterparty to work on negotiations to enter 16 into Internet interconnection agreements, peering agreements, or transit agreements 17 with the Designating Party. Prior to the disclosure of any information or item that 18 the Designating Party has designated as “HIGHLY CONFIDENTIAL – 19 ATTORNEYS’ EYES ONLY” pursuant to Section VII.C to an Expert who falls 20 into one of the preceding three categories, the Receiving Party seeking to make the 21 disclosure must first make a written request to the Designating Party that (i) 22 identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ 23 EYES ONLY” information that the Receiving Party seeks permission to disclose to 24 the Expert; (ii) sets forth the full name of the Expert and the city and state of his or 25 her primary residence; (iii) attaches a copy of the Expert’s current resume; (iv) 26 identifies the Expert’s current employer(s); (v) identifies each person or entity from 27 whom the Expert has received compensation or funding for work in his or her area 1 of expertise or to whom the Expert has provided professional services, including in 2 connection with a litigation, at any time during the preceding three (3) years and the 3 party to the litigation for whom such work was done; and (vi) identifies (by name 4 and number of the case, filing date, and location of court) any litigation in 5 connection with which the Expert has offered expert testimony, including through a 6 declaration, report, or testimony at a deposition or trial, during the preceding three 7 (3) years. With regard to the information sought through part (v) of this disclosure, 8 if the Expert believes that any of this information is subject to a confidentiality 9 obligation to a third party, then the Expert should provide whatever information the 10 Expert believes can be disclosed without violating any confidentiality agreements, 11 and the Receiving Party seeking to disclose to the Expert shall be available to meet 12 and confer with the Designating Party regarding any such engagement. 13 (2) A Receiving Party that that makes a request and provides the information 14 specified in the preceding paragraph may disclose the subject Protected Material to 15 the identified Expert unless, within fourteen (14) days of delivering the request, the 16 Receiving Party receives a written objection from the Designating Party. Any such 17 objection must set forth in detail the grounds on which it is based. 18 (3) A Receiving Party that receives a timely written objection must meet and 19 confer with the Designating Party (through direct voice-to-voice dialogue) to try to 20 resolve the matter by agreement within seven (7) days of the written objection. If 21 no agreement is reached, the Receiving Party seeking to make the disclosure to the 22 Expert may file a motion seeking permission from the Court to do so. Any such 23 motion must describe the circumstances with specificity, set forth in detail the 24 reasons why the disclosure to the Expert is reasonably necessary, assess the risk of 25 harm that the disclosure would entail, and suggest any additional means that could 26 be used to reduce that risk. In addition, any such motion must be accompanied by a 27 competent declaration describing the parties’ efforts to resolve the matter by 1 agreement (i.e., the extent and the content of the meet and confer discussions) and 2 setting forth the reasons advanced by the Designating Party for its refusal to 3 approve the disclosure. 4 In any such proceeding, the Designating Party opposing disclosure to the 5 Expert shall bear the burden of proving that the risk of harm that the disclosure 6 would entail (under the safeguards proposed) outweighs the Receiving Party’s need 7 to disclose the Protected Material to its Expert. 8 VIII. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 9 If a Party is served with a subpoena or a court order issued in other litigation 10 (i.e., not in this Action) that compels disclosure of any information or items 11 designated in this Action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 12 ATTORNEYS’ EYES ONLY” that Party must: 13 (A) promptly notify in writing the Designating Party and provide a copy of 14 the subpoena or court order; 15 (B) promptly notify in writing the party who caused the subpoena or order to 16 issue in the other litigation that some or all of the material covered by the subpoena 17 or order is subject to this Protective Order and provide a copy of this Protective 18 Order; and 19 (C) cooperate with respect to all reasonable procedures sought to be pursued 20 by the Designating Party whose Protected Material may be affected. 21 The Designating Party may seek a protective order prior to the deadline for 22 producing the Protected Material under the subpoena or court order. If the 23 Designating Party timely seeks a protective order, the Party served with the 24 subpoena or court order shall not produce any information designated in this Action 25 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 26 ONLY” before a determination by the court from which the subpoena or order 27 1 issued, unless the Party has obtained the Designating Party’s permission. The 2 Designating Party shall bear the burden and expense of seeking protection in that 3 court of its confidential material, and nothing in these provisions should be 4 construed as authorizing or encouraging a Receiving Party in this Action to disobey 5 a lawful directive from another court. 6 (D) The provisions set forth herein are not intended to, and do not, restrict in 7 any way the procedures set forth in Federal Rule of Civil Procedure 45(d)(3) or (f). 8 IX. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS ACTION 9 10 (A) The terms of this Protective Order are applicable to information produced 11 by a Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 12 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Such information produced 13 by Non-Parties in connection with this Action is protected by the remedies and 14 relief provided by this Protective Order. Nothing in these provisions should be 15 construed as prohibiting a Non-Party from seeking additional protections. 16 (B) In the event that a Party is required, by a valid discovery request issued in 17 this Action, to produce a Non-Party’s Protected Material in its possession, then the 18 Party shall: 19 (1) promptly notify in writing the Requesting Party and the Non-Party 20 that some or all of the information requested has been designated as Confidential or 21 Highly Confidential in accordance with this Protective Order; and 22 (2) promptly provide the Non-Party with a copy of this Protective 23 Order, the relevant discovery request(s), and a reasonably specific description of the 24 information requested. 25 (C) If the Non-Party fails to object or seek a protective order from this Court 26 within fourteen (14) days of receiving the notice and accompanying information, 27 the Receiving Party may produce the Non-Party’s Protected Material responsive to 1 the discovery request. If the Non-Party timely seeks a protective order, the 2 Receiving Party shall not produce any Protected Material in its possession or 3 control that is subject to the confidentiality agreement with the Non-Party before a 4 determination by this Court. Absent a court order to the contrary, the Non-Party 5 shall bear the burden and expense of seeking protection in this Court of its 6 Protected Material. 7 X. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 8 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed 9 Protected Material to any person or in any circumstance not authorized under this 10 Protective Order, the Receiving Party must immediately (a) notify in writing the 11 Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve 12 all unauthorized copies of the Protected Material, (c) inform the person or persons 13 to whom unauthorized disclosures were made of all the terms of this Protective 14 Order, and (d) request such person or persons to execute the “Acknowledgment and 15 Agreement to Be Bound” that is attached hereto as Exhibit A. 16 XI. PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 17 18 When a Producing Party gives notice to a Receiving Party that certain 19 produced material is subject to a claim of privilege or other protection, the 20 obligations of the each Receiving Party are set forth in Federal Rule of Civil 21 Procedure 26(b)(5)(B). 22 A Producing Party may assert privilege or protection over produced 23 documents at any time by notifying the Receiving Parties in writing of the assertion 24 of privilege or protection. In addition, information that contains privileged matter 25 or attorney work produce shall be returned or destroyed immediately by the 26 Receiving Party if such information has been inadvertently produced. Nothing in 27 this provision will limit the right of the Receiving Party to contest in good faith the 1 Producing Party’s claim of privilege or protection. The Producing Party shall be 2 required to maintain the information in the form it was produced and, if ordered by 3 the Court, to present the information to the Court under seal for a determination of 4 the Producing Party’s claim of privilege or protection. 5 Pursuant to Federal Rule of Evidence 502(d) and (e), the production of 6 privileged or work-product protected documents or information is not a waiver of 7 privilege or protection from discovery in this case or in any other federal or state 8 proceeding. For example, the mere production of privileged or work-product 9 protected documents or information in this case as part of a mass production is not 10 itself a waiver in this case or any other federal or state proceeding. 11 XII. MISCELLANEOUS 12 A. Right to Further Relief. Nothing in this Protective Order abridges the 13 right of any person to seek future modification of this Protective Order by the 14 Court. 15 B. Right to Assert Other Objections. By stipulating to the entry of this 16 Protective Order, no Party waives any right it otherwise would have to object to 17 disclosing or producing any information or item on any ground not addressed in 18 this Stipulated Protective Order. Similarly, no Party waives any right to object on 19 any ground to use in evidence of any of the material covered by this Protective 20 Order. 21 C. Filing Protected Material. Without written permission from the 22 Designating Party or a court order after appropriate notice to all interested persons, 23 a Party may not file in the public record in this action any Protected Material. A 24 Party that seeks to file under seal any Protected Material must comply with Rule 25 141 of the Local Rules of the United States District Court, Eastern District of 26 California. Protected Material may only be filed under seal pursuant to a court 27 order authorizing the sealing of the specific Protected Material at issue. If a Party’s 1 request to file Protected Material under seal is denied by the Court, then the 2 Receiving Party may file the information in the public record unless otherwise 3 instructed by the Court. 4 XIII. FINAL DISPOSITION 5 After the final disposition of this Action, as defined in Section IV above, 6 within sixty (60) days of a written request by the Designating Party, each Receiving 7 Party must return all Protected Material to the Producing Party or destroy such 8 material. As used in this subdivision, “all Protected Material” includes all copies, 9 abstracts, compilations, summaries, and any other format reproducing or capturing 10 any of the Protected Material. Whether the Protected Material is returned or 11 destroyed, the Receiving Party must submit a written certification to the Producing 12 Party (and, if not the same person or entity, to the Designating Party) by the 60-day 13 deadline that (1) identifies (by category, where appropriate) all the Protected 14 Material that was returned or destroyed and (2) affirms that the Receiving Party has 15 not retained any copies, abstracts, compilations, summaries or any other format 16 reproducing or capturing any of the Protected Material. Notwithstanding this 17 provision, Counsel are entitled to retain an archival copy of all pleadings, motion 18 papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, 19 deposition and trial exhibits, expert reports, attorney work product, and consultant 20 and expert work product, even if such materials contain Protected Material. Any 21 such archival copies that contain or constitute Protected Material remain subject to 22 this Protective Order as set forth in Section IV. 23 IT IS SO STIPULATED. 24 25 Dated: December 17, 2021 Respectfully submitted, 26 /s/ Marc R. Lewis 27 Scott H. Angstreich* Marc R. Lewis 1 Leslie V. Pope* LEWIS & LLEWELLYN LLP Alex A. Parkinson* 505 Montgomery Street, Suite 1300 2 KELLOGG, HANSEN, TODD, San Francisco, CA 94111 FIGEL, & FREDERICK, P.L.L.C. (415) 800-0591 3 1615 M Street NW, Suite 400 mlewis@lewisllewellyn.com 4 Washington, DC 20036 Attorney for Plaintiffs ACA Connects (202) 326-7900 – America’s Communications 5 sangstreich@kellogghansen.com Association f/k/a American Cable lpope@kellogghansen.com Association, CTIA – The Wireless 6 aparkinson@kellogghansen.com Association, NCTA – The Internet & Attorneys for Plaintiffs CTIA – The Television Association, and 7 Wireless Association and USTelecom – USTelecom – The Broadband The Broadband Association Association 8 Jeffrey A. Lamken Matthew A. Brill* 9 MOLOLAMKEN LLP Matthew T. Murchison* The Watergate, Suite 500 James A. Tomberlin* 10 600 New Hampshire Ave., NW LATHAM & WATKINS LLP 11 Washington, DC 20037 555 Eleventh Street NW, Suite 1000 (202) 556-2000 Washington, DC 20004 12 jlamken@mololamken.com (202) 637-2200 Attorney for Plaintiff ACA Connects – matthew.brill@lw.com 13 America’s Communications matthew.murchison@lw.com Association f/k/a American Cable james.tomberlin@lw.com 14 Association Attorneys for Plaintiff NCTA – The Internet & Television Association 15 *Admitted pro hac vice 16 17 18 19 20 21 22 23 24 25 26 27 1 Dated: December 17, 2021 ROB BONTA Attorney General of California 2 PAUL STEIN Supervising Deputy Attorney General 3 SARAH E. KURTZ 4 JOHN D. ECHEVERRIA P. PATTY LI 5 Deputy Attorneys General 455 Golden Gate Avenue, 6 Suite 11000 San Francisco, CA 94102-7004 7 (415) 510-3817 Patty.Li@doj.ca.gov 8 /s/ P. Patty Li 9 Attorneys for Defendant Rob Bonta, 10 in his official capacity as Attorney 11 General of California 12 ORDER 13 Pursuant to the parties’ stipulation, IT IS SO ORDERED. 14 IT IS FURTHER ORDERED THAT: 15 1. Requests to seal documents shall be made by motion before the same 16 judge who will decide the matter related to that request to seal. 17 2. The designation of documents (including transcripts of testimony) as 18 confidential pursuant to this order does not automatically entitle the parties to file 19 such a document with the court under seal. Parties are advised that any request to 20 seal documents in this district is governed by Local Rule 141. In brief, Local Rule 21 141 provides that documents may only be sealed by a written order of the court 22 after a specific request to seal has been made. L.R. 141(a). However, a mere 23 request to seal is not enough under the local rules. In particular, Local Rule 141(b) 24 requires that “[t]he ‘Request to Seal Documents’ shall set forth the statutory or 25 other authority for sealing, the requested duration, the identity, by name or 26 category, of persons to be permitted access to the document, and all relevant 27 information.” L.R. 141(b). 1 3. A request to seal material must normally meet the high threshold of 2 showing that “compelling reasons” support secrecy; however, where the material is, 3 at most, “tangentially related” to the merits of a case, the request to seal may be 4 granted on a showing of “good cause.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 5 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and County of 6 Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006). 7 4. Nothing in this order shall limit the testimony of parties or non-parties, or 8 the use of certain documents, at any court hearing or trial – such determinations will 9 only be made by the court at the hearing or trial, or upon an appropriate motion. 10 5. With respect to motions regarding any disputes concerning this protective 11 order which the parties cannot informally resolve, the parties shall follow the 12 procedures outlined in Local Rule 251. Absent a showing of good cause, the court 13 will not hear discovery disputes on an ex parte basis or on shortened time. 14 6. The parties may not modify the terms of this Protective Order without the 15 court’s approval. If the parties agree to a potential modification, they shall submit a 16 stipulation and proposed order for the court’s consideration. 17 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over 18 enforcement of the terms of this Protective Order after the action is terminated. 19 8. Any provision in the parties’ stipulation that is in conflict with anything in 20 this order is hereby DISAPPROVED. 21 DATED: January 4, 2022 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 EXHIBIT A 1 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 3 I, [print or type full name], of 4 [print or type full address], declare under penalty of perjury that I 5 have read in its entirety and understand the Stipulated Protective Order that was 6 issue by the United States District Court for the Eastern District of California on 7 [DATE] in the case of ACA Connects – America’s Communications Association v. 8 Bonta, Case No. 2:18-cv-02684-JAM-DB (E.D. Cal.). I agree to comply with and 9 to be bound by all the terms of this Stipulated Protective Order and I understand 10 and 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 in 12 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 this 14 Protective Order. 15 I further agree to submit to the jurisdiction of the United States District Court 16 for the Eastern District of California for the purpose of enforcing the terms of this 17 Stipulated Protective Order, even if such enforcement proceedings occur after 18 termination of this action. I hereby appoint [print or 19 type full name] of [print or type full address and 20 telephone number] as my California agent for service of process in connection with 21 this action or any proceedings related to enforcement of this Stipulated Protective 22 Order. 23 24 Date: 25 City and State where sworn and signed: 26 Printed Name: 27 Signature: ——— Oe NE NO OSC eee