YellowCake, Inc. v. DashGo, Inc. ( 2022 )

1 Richard J. Idell, Esq. (SBN 069033) Ory Sandel, Esq. (SBN 233204) 2 DICKENSON PEATMAN & FOGARTY P.C. 3 1455 First Street, Suite 301 Napa, CA 94559 4 Telephone: (707) 261-7000 Facsimile: (707) 255-6876 5 Email: ridell@dpf-law.com 6 osandel@dpf-law.com Attorneys for Defendants Dashgo, Inc., Audiomicro, 7 Inc. d.b.a. Adrev, Benjamin Patterson and Noah Becker 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA FRESNO DIVISION 11 YELLOWCAKE, INC., a California CASE NO. 1:21-cv-00803-AWI-BAM 12 corporation, [PROPOSED] TWO-TIER PROTECTIVE 13 Plaintiff, ORDER 14 v. 15 DASHGO, INC., a Delaware corporation; and AUDIOMICRO, INC. d/b/a ADREV, a 16 Delaware corporation, 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 1 On March 25, 2022, Defendants Dashgo, Inc. (“Dashgo”) and AudioMicro, Inc. d/b/a 2 Adrev (“Adrev”) (collectively, “Defendants”) moved the Court for entry of a two-tier protective 3 order. Plaintiff Yellowcake, Inc. (“Plaintiff” or “Yellowcake”) opposed Defendants’ motion. By 4 Order dated July 20, 2022, Defendants’ motion was granted, and the Court now enters this 5 Protective Order on that basis. 6 1. PURPOSES AND LIMITATIONS 7 8 Disclosure and discovery activity in this action are likely to involve production of 9 confidential, proprietary, or private information for which special protection from public 10 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 11 This Order does not confer blanket protections on all disclosures or responses to 12 discovery and that the protection it affords from public disclosure and use extends only to the 13 limited information or items that are entitled to confidential treatment under the applicable legal 14 principles. As set forth in Section 12.3, below, this Protective Order does not automatically 15 entitle any Party to file confidential information under seal. 16 2. DEFINITIONS 17 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 18 information or items under this Order. 19 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 20 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 21 of Civil Procedure 26(c). 22 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as 23 well as their support staff). 24 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter. 26 2.5 Designating Party: a Party or Non-Party that designates information or items that 27 it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 28 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. 1 2.6 Disclosure or Discovery Material: all items or information, regardless of the 2 medium or manner in which it is generated, stored, or maintained (including, among other things, 3 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 4 responses to discovery in this matter. 5 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 6 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 7 as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s 8 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party 9 or of a Party’s competitor. 10 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 11 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another 12 Party or Non-Party would create a substantial risk of significant financial or competitive harm 13 that could not be avoided by less restrictive means and which falls into a category permitted to 14 be so designated under the Court’s July 21, 2022 Order (Docket No. 78) and any subsequent 15 related Court Orders. The Court’s July 21, 2022 Order discusses designations relating to six 16 categories of information: (1) agreements with Digital Service Providers; (2) agreements with 17 third party licensors; (3) client list and contacts; (4) internal procedures and processes; (5) 18 financial information; and (6) proprietary software and systems developed. The following 19 categories may be designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”: 20 (1) client list and contacts; (2) internal procedures and processes; and (3) proprietary software 21 and systems developed. The Court has yet to determine whether or not the category of 22 agreements with Digital Service Providers may be designated “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY” pending its review of the three representative contracts 24 25 Defendants have delivered to the Court for in camera review. The category of agreements with 26 third party licensors may be redacted as to licensor identification and financial terms, subject to a 27 standard privilege log, and may not be designated “HIGHLY CONFIDENTIAL – 28 ATTORNEYS’ EYES ONLY” but may be designated “CONFIDENTIAL”. The category of financial information may be designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 1 ONLY” other than as to “financial information directly related to the royalty or revenue of the 2 alleged Copyrighted Works and Foreign Works”, which may not be designated “HIGHLY 3 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” but may be designated “CONFIDENTIAL”. 4 Further with regard to the category of “financial information”, to the extent that Defendants are 5 asked to produce documents related to “business operations, performance and profitability”, such 6 documents may be designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 7 except as such documents relates to the “list” of identifiable copyrighted works, which 8 documents may be marked “CONFIDENTIAL” and which may be redacted as to sections of 9 documents protected by identified privileges set forth on a privilege log. 10 2.9 House Counsel: attorneys who are employees of a party to this action. House 11 Counsel does not include Outside Counsel of Record or any other outside counsel. 12 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 13 entity not named as a Party to this action. 14 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 15 action but are retained to represent or advise a party to this action and have appeared in this 16 action on behalf of that party or are affiliated with a law firm which has appeared on behalf of 17 that party. 18 2.13 Party: any party to this action, including all of its officers, directors, employees, 19 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 20 2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 21 Material in this action. 22 2.15 Professional Vendors: persons or entities that provide litigation support services 23 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 24 25 organizing, storing, or retrieving data in any form or medium) and their employees and 26 subcontractors. 27 2.16 Protected Material: any Disclosure or Discovery Material that is designated as 28 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 1 2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a 2 Producing Party. 3 3. SCOPE 4 The protections conferred by this Order cover not only Protected Material (as defined 5 above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 6 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 7 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 8 However, the protections conferred by this Order do not cover the following information: (a) any 9 information that is in the public domain at the time of disclosure to a Receiving Party or becomes 10 part of the public domain after its disclosure to a Receiving Party as a result of publication not 11 involving a violation of this Order, including becoming part of the public record through trial or 12 otherwise; and (b) any information known to the Receiving Party prior to the disclosure or 13 obtained by the Receiving Party after the disclosure from a source who obtained the information 14 lawfully and under no obligation of confidentiality to the Designating Party. Any use of 15 Protected Material at trial shall be governed by a separate agreement or order. 16 4. DURATION 17 Even after final disposition of this litigation, the confidentiality obligations imposed by 18 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 19 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 20 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 21 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 22 action, including the time limits for filing any motions or applications for extension of time 23 pursuant to applicable law. 24 25 5. DESIGNATING PROTECTED MATERIAL 26 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 27 or Non-Party that designates information or items for protection under this Order must take care 28 to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only 1 those parts of material, documents, items, or oral or written communications that qualify – so 2 that other portions of the material, documents, items, or communications for which protection is 3 not warranted are not swept unjustifiably within the ambit of this Order. 4 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 5 shown to be clearly unjustified or to have been made for an improper purpose (e.g., to 6 unnecessarily encumber or retard the case development process or to impose unnecessary 7 expenses and burdens on other parties) may expose the Designating Party to sanctions. 8 If it comes to a Designating Party’s attention that information or items that it designated 9 for protection do not qualify for protection at all or do not qualify for the level of protection 10 initially asserted, that Designating Party must promptly notify all other parties that it is 11 withdrawing the mistaken designation. 12 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 13 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 14 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 15 designated before the material is disclosed or produced. 16 Designation in conformity with this Order requires: 17 (a) for information in documentary form (e.g., paper or electronic documents, but 18 excluding transcripts of depositions or other pretrial or trial proceedings) produced by a 19 Producing Party itself or using a third party discovery service, that the Producing Party 20 affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 21 EYES ONLY” to each page that contains protected material before production. If only a 22 portion or portions of the material on a page qualifies for protection, the Producing Party 23 also must clearly identify the protected portion(s) (e.g., by making appropriate markings 24 25 in the margins) and must specify, for each portion, the level of protection being asserted. 26 If, alternatively, a Party or Non-Party makes original documents or materials 27 available for inspection, the Party or Non-Party need not designate them for protection 28 until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made 1 available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ 2 EYES ONLY.” After the inspecting Party has identified the documents it wants copied 3 and produced, the Producing Party must determine which documents, or portions thereof, 4 qualify for protection under this Order. Then, before producing the specified documents, 5 the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 6 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected 7 Material. If only a portion or portions of the material on a page qualifies for protection, 8 the Producing Party also must clearly identify the protected portion(s) (e.g., by making 9 appropriate markings in the margins) and must specify, for each portion, the level of 10 protection being asserted. 11 (b) for testimony given in deposition or in other pretrial or trial proceedings, that 12 the Designating Party identify on the record, before the close of the deposition, hearing, 13 or other proceeding, all protected testimony and specify the level of protection being 14 asserted. When it is impractical to identify separately each portion of testimony that is 15 entitled to protection and it appears that substantial portions of the testimony may qualify 16 for protection, the Designating Party may invoke on the record (before the deposition, 17 hearing, or other proceeding is concluded) a right to have up to 30 days to identify the 18 specific portions of the testimony as to which protection is sought and to specify the level 19 of protection being asserted. Only those portions of the testimony that are appropriately 20 designated for protection within the 30 days shall be covered by the provisions of this 21 Order. Alternatively, a Designating Party may specify, at the deposition or up to 30 days 22 afterwards if that period is properly invoked, that the entire transcript shall be treated as 23 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 24 25 Parties shall give the other parties notice if they reasonably expect a deposition, 26 hearing or other proceeding to include Protected Material so that the other parties can 27 ensure that only authorized individuals who have signed the “Acknowledgment and 28 Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a 1 document as an exhibit at a deposition shall not in any way affect its designation as 2 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 3 Transcripts containing Protected Material shall have an obvious legend on the title 4 page that the transcript contains Protected Material, and the title page shall be followed 5 by a list of all pages (including line numbers as appropriate) that have been designated as 6 Protected Material and the level of protection being asserted by the Designating Party. 7 Those portions of transcripts containing Protected Material shall not be separately bound. 8 The Designating Party shall inform the court reporter of these requirements. Any 9 transcript that is prepared before the expiration of a 21-day period for designation shall be 10 treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – 11 ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the 12 expiration of that period, the transcript shall be treated only as actually designated. 13 (c) for information produced in some form other than documentary and for any 14 other tangible items, that the Producing Party affix in a prominent place on the exterior of 15 the container or containers in which the information or item is stored the legend 16 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. 17 If only a portion or portions of the information or item warrant protection, the Producing 18 Party, to the extent practicable, shall identify the protected portion(s) and specify the 19 level of protection being asserted. 20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 21 designate qualified information or items does not, standing alone, waive the Designating Party’s 22 right to secure protection under this Order for such material. Upon timely correction of a 23 designation, the Receiving Party must make reasonable efforts to assure that the material is 24 treated in accordance with the provisions of this Order. 25 26 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 27 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 28 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 1 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 2 challenge a confidentiality designation by electing not to mount a challenge promptly after the 3 original designation is disclosed. 4 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 5 process by providing written notice of each designation it is challenging and describing the basis 6 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 7 notice must recite that the challenge to confidentiality is being made in accordance with this 8 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 9 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 10 forms of communication are not sufficient) within 14 days of the date of service of notice. In 11 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 12 designation was not proper and must give the Designating Party an opportunity to review the 13 designated material, to reconsider the circumstances, and, if no change in designation is offered, 14 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 15 stage of the challenge process only if it has engaged in this meet and confer process first or 16 establishes that the Designating Party is unwilling to participate in the meet and confer process in 17 a timely manner. 18 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 19 intervention, the Designating Party shall file and serve a motion to maintain the confidentiality 20 designation within 21 days of the initial notice of challenge or within 14 days of the parties 21 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 22 Each such motion must be accompanied by a competent declaration affirming that the movant 23 has complied with the meet and confer requirements imposed in the preceding paragraph and 24 25 relevant Local Rules. Failure by the Designating Party to make such a motion including the 26 required declaration within 21 days (or 14 days, if applicable) shall automatically waive the right 27 to maintain the confidentiality designation of each challenged designation. 28 The burdens of proof and persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges or those made for an improper purpose (e.g., to harass or 1 impose unnecessary expenses and burdens on other parties) may expose the Challenging Party to 2 sanctions. Pending any motion challenging the confidentiality designation as described above, all 3 parties shall continue to afford the material in question the level of protection under the 4 Producing Party’s designation until the court rules on the challenge. 5 7. ACCESS TO AND USE OF PROTECTED MATERIAL 6 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 7 or produced by another Party or by a Non-Party in connection with this case only for 8 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 9 disclosed only to the categories of persons and under the conditions described in this Order. 10 When the litigation has been terminated, a Receiving Party must comply with the provisions of 11 section 13 below (FINAL DISPOSITION). 12 Protected Material must be stored and maintained by a Receiving Party at a location and 13 in a secure manner that ensures that access is limited to the persons authorized under this Order. 14 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 15 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 16 disclose any information or item designated “CONFIDENTIAL” only to: 17 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 18 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 19 for this litigation; 20 (b) the officers, directors, and employees (including House Counsel) of the Receiving 21 Party to whom disclosure is reasonably necessary for this litigation; 22 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 23 reasonably necessary for this litigation; 24 25 (d) the court and its personnel; 26 (e) court reporters and their staff, professional jury or trial consultants, and Professional 27 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 28 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 1 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 2 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 3 A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 4 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 5 separately bound by the court reporter and may not be disclosed to anyone except as permitted 6 under this Order; and 7 (g) the author or recipient of a document containing the information or a custodian or 8 other person who otherwise possessed or knew the information. 9 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 10 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 11 Designating Party, a Receiving Party may disclose any information or item designated 12 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 13 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees 14 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 15 for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that 16 is attached hereto as Exhibit A; 17 (b) Designated House Counsel of the Receiving Party (1) who has no involvement in 18 competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, 19 (3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as 20 to whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed; 21 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 22 litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 23 and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed; 24 25 (d) the court and its personnel; 26 (e) court reporters and their staff, professional jury, mock jury or trial consultants, and 27 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 28 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 1 (f) the author or recipient of a document containing the information or a custodian or 2 other person who otherwise possessed or knew the information. 3 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL 4 – ATTORNEYS’ EYES ONLY” Information or Items to Designated House Counsel or Experts. 5 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating 6 Party, a Party that seeks to disclose to Designated House Counsel any information or item that 7 has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to 8 paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the 9 full name of the Designated House Counsel and the city and state of his or her residence, and (2) 10 describes the Designated House Counsel’s current and reasonably foreseeable future primary job 11 duties and responsibilities in sufficient detail to determine if House Counsel is involved, or may 12 become involved, in any competitive decision-making. 13 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating 14 Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or 15 item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 16 pursuant to paragraph 7.3(c) first must make a written request to the Designating Party that (1) 17 identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 18 ONLY” information that the Receiving Party seeks permission to disclose to the Expert, (2) sets 19 forth the full name of the Expert and the city and state of his or her primary residence, (3) 20 attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), 21 (5) identifies each person or entity from whom the Expert has received compensation or funding 22 for work in his or her areas of expertise or to whom the expert has provided professional 23 services, including in connection with a litigation, at any time during the preceding five years, 24 25 and (6) identifies (by name and number of the case, filing date, and location of court) any 26 litigation in connection with which the Expert has offered expert testimony, including through a 27 declaration, report, or testimony at a deposition or trial, during the preceding five years. BAM 28 1 (b) A Party that makes a request and provides the information specified in the preceding 2 respective paragraphs may disclose the subject Protected Material to the identified Designated 3 House Counsel or Expert unless, within 14 days of delivering the request, the Party receives a 4 written objection from the Designating Party. Any such objection must set forth in detail the 5 grounds on which it is based. 6 (c) A Party that receives a timely written objection must meet and confer with the 7 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 8 agreement within seven days of the written objection. If no agreement is reached, the Party 9 seeking to make the disclosure to Designated House Counsel or the Expert may file a motion 10 seeking permission from the court to do so. Any such motion must describe the circumstances 11 with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel 12 or the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, 13 and suggest any additional means that could be used to reduce that risk. In addition, any such 14 motion must be accompanied by a competent declaration describing the parties’ efforts to resolve 15 the matter by agreement (i.e., the extent and the content of the meet and confer discussions) and 16 setting forth the reasons advanced by the Designating Party for its refusal to approve the 17 disclosure. 18 In any such proceeding, the Party opposing disclosure to Designated House Counsel or 19 the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail 20 (under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected 21 Material to its Designated House Counsel or Expert. 22 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 23 LITIGATION 24 25 If a Party is served with a subpoena or a court order issued in other litigation that compels 26 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 27 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: 28 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 1 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 2 other litigation that some or all of the material covered by the subpoena or order is subject to this 3 Protective Order. Such notification shall include a copy of this Order; and 4 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 5 Designating Party whose Protected Material may be affected. 6 If the Designating Party timely seeks a protective order, the Party served with the 7 subpoena or court order shall not produce any information designated in this action as 8 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a 9 determination by the court from which the subpoena or order issued, unless the Party has 10 obtained the Designating Party’s permission. The Designating Party shall bear the burden and 11 expense of seeking protection in that court of its confidential material – and nothing in these 12 provisions should be construed as authorizing or encouraging a Receiving Party in this action to 13 disobey a lawful directive from another court. 14 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 15 LITIGATION 16 (a) The terms of this Order are applicable to information produced by a Non-Party in 17 this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY”. Such information produced by Non-Parties in connection with 19 this litigation is protected by the remedies and relief provided by this Order. Nothing in these 20 provisions should be construed as prohibiting a Non-Party from seeking additional protections. 21 Documents produced by a Non-Party shall be deemed “HIGHLY CONFIDENTIAL – 22 ATTORNEYS’ EYES ONLY” for a period of 30 days from the date of production, during which 23 time any Party or the Non-Party may designate or re-designate all or any part of the Non-Party’s 24 25 document production as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 26 EYES ONLY”. 27 (b) In the event that a Party is required, by a valid discovery request, to produce a 28 Non-Party’s confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 1 1. promptly notify in writing the Requesting Party and the Non-Party that 2 some or all of the information requested is subject to a confidentiality agreement with a Non- 3 Party; 4 2. promptly provide the Non-Party with a copy of the Protective Order in this 5 litigation, the relevant discovery request(s), and a reasonably specific description of the 6 information requested; and 7 3. make the information requested available for inspection by the Non-Party. 8 (c) If the Non-Party fails to object or seek a protective order from this court within 14 9 days of receiving the notice and accompanying information, the Receiving Party may produce 10 the Non-Party’s confidential information responsive to the discovery request. If the Non-Party 11 timely seeks a protective order, the Receiving Party shall not produce any information in its 12 possession or control that is subject to the confidentiality agreement with the Non-Party before a 13 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 14 burden and expense of seeking protection in this court of its Protected Material. 15 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 16 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 17 Material to any person or in any circumstance not authorized under this Order, the Receiving 18 Party must immediately (a) notify in writing the Designating Party of the unauthorized 19 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, 20 (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of 21 this Order, and (d) request such person or persons to execute the “Acknowledgment and 22 Agreement to Be Bound” that is attached hereto as Exhibit A. 23 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 24 25 MATERIAL 26 If information is inadvertently produced in discovery that is subject to a claim of 27 privilege or other protection, the party making the claim may notify any party that received the 28 information of the claim and the basis for it. After being notified, any notified party must promptly return or destroy the specified information and any copies it has, and may not 1 sequester, use or disclose the information until the claim is resolved. This includes a restriction 2 against presenting the information to the court for a determination of the claim. 3 This provision is not intended to modify whatever procedure may be established in an e- 4 discovery or other court order that provides for production without prior privilege review. 5 12. MISCELLANEOUS 6 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 7 seek its modification by the court in the future. 8 12.2 Right to Assert Other Objections. No Party waives any right it otherwise would 9 have to object to disclosing or producing any information or item on any ground not addressed in 10 this Protective Order. Similarly, no Party waives any right to object on any ground to use in 11 evidence of any of the material covered by this Protective Order. 12 12.3 Filing Protected Material. Without written permission from the Designating Party 13 or a court order secured after appropriate notice to all interested persons, a Party may not file in 14 the public record in this action any Protected Material. A Party that seeks to file under seal any 15 Protected Material must comply with the relevant Federal Rules of Civil Procedure and Local 16 Rule 141. Pursuant to Local Rule 141, a Notice of Request to Seal Document(s) shall be filed 17 electronically. The Request to Seal, a proposed sealing order (in Word), and all documents 18 covered by the request shall be emailed to awiorders@caed.uscourts.gov. If the request is 19 approved and notice of electronic filing of the sealing order is received, all documents covered 20 by the order must be emailed to ApprovedSealed@caed.uscourts.gov for filing under seal. 21 13. FINAL DISPOSITION 22 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 23 Receiving Party must either: (a) return all Protected Material to the Producing Party; or (b) 24 25 destroy all Protected Material. As used in this subdivision, “all Protected Material” includes all 26 copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of 27 the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving 28 Party must submit a written certification to the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60-day deadline that: (1) identifies (by category, where 1 appropriate) all the Protected Material that was returned or destroyed; and (2) affirms that the 2 Receiving Party has not retained any copies, abstracts, compilations, summaries or any other 3 format reproducing or capturing any of the Protected Material. Notwithstanding this provision, 4 Counsel are entitled to retain a single archival copy of all pleadings, motion papers, trial, 5 deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial 6 exhibits, expert reports, attorney work product, and consultant and expert work product, even if 7 such materials contain Protected Material. Any such archival copies that contain or constitute 8 Protected Material remain subject to this Protective Order as set forth in Section 4 9 (DURATION). 10 11 12 13 14 15 16 APPROVED AS TO FORM AND CONTENT: 17 18 19 20 By: /s/ Seth L. Berman 21 Seth L. Berman, Esq. (admitted pro hac vice) 22 ABRAMS, FENSTERMAN, FENSTERMAN, EISMAN, 23 FORMATO, FERRARA, WOLF & CARONE, LLP 24 25 Attorneys for Plaintiff Yellowcake, Inc. 26 27 28 1 EXHIBIT A 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 perjury that I 5 have read in its entirety and understand the Protective Order that was issued by the United States 6 District Court for the Eastern District of California on [date] in the case of 7 Yellowcake, Inc. v. Dashgo, Inc., et al., being Case No. 1:21-cv-00803-AWI-BAM. 8 I agree to comply with and to be bound by all the terms of the Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and 10 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 11 any information or item that is subject to this Protective Order to any person or entity except in 12 strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Eastern District of California for the purpose of enforcing the terms of the Protective Order, even 15 if such enforcement proceedings occur after termination of this action. 16 I hereby appoint [print or type full name] of 17 [print or type full address and telephone number] as my California 18 agent for service of process in connection with this action or any proceedings related to 19 enforcement of the Protective Order. 20 21 Date: 22 23 City and State where sworn and signed: 24 25 26 Printed name: 27 28 Signature: 1 ORDER 2 Having considered the proposed Two-Tier Protective Order filed on August 12, 2022, 3 (Doc. 81), along with the Order Granting Motion for Entry of a Two-Tier Protective Order 4 issued on July 21, 2022, (Doc. 78), and finding good cause, the Court adopts the instant Two- 5 Tier Protective Order. 6 The parties are advised that pursuant to the Local Rules of the United States District Court, 7 Eastern District of California, any documents subject to the protective order to be filed under seal 8 must be accompanied by a written request which complies with Local Rule 141 prior to sealing. 9 The party making a request to file documents under seal shall be required to show good cause for 10 documents attached to a non-dispositive motion or compelling reasons for documents attached to 11 a dispositive motion. Pintos v. Pacific Creditors Ass’n, 605 F.3d 665, 677-78 (9th Cir. 2009). 12 Within five (5) days of any approved document filed under seal, the party shall file a redacted 13 copy of the sealed document. The redactions shall be narrowly tailored to protect only the 14 information that is confidential or was deemed confidential. 15 Additionally, the parties shall consider resolving any dispute arising under the Two-Tier 16 Protective Order according to the Court’s informal discovery dispute procedure. 17 18 IT IS SO ORDERED. 19 20 Dated: August 17, 2022 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28