STIPULATED PROTECTIVE ORDER
DOUGLAS F. McCORMICK, Magistrate Judge.
Plaintiff Honey Baked Ham, Inc. (Honey Baked California), and Defendant Honey Baked Ham Company, LLC (Honey Baked USA), hereby stipulate and move for the entry of a protective order governing Honey Baked USA's providing Honey Baked California with pre-deployment access to Honey Baked USA's redeveloped national website (the New Website) for the limited purpose of testing the functionality of the New Website's state-selector mechanism for directing online shoppers to the appropriate entity's retail sales website. The entry of the requested order is justified to prevent the advance disclosure of Honey Baked USA's proprietary and confidential information before it is intended for public consumption. The protective order will serve the interests of justice and judicial economy by allowing Honey Baked California certain pre-deployment access to and testing of the New Website, providing an opportunity for it to identify and raise objections to the New Website's functionality prior to its public deployment. There being good cause for the entry of a protective order, the parties hereby stipulate as follows:
1. This Order is being entered into to facilitate Honey Baked California's advance access to the New Website and testing of the New Website's state-selector mechanism.
2. As used herein, the term "Confidential Information" shall mean all information disclosed by Honey Baked USA to Honey Baked California in connection with or to facilitate Honey Baked California's testing of the New Website's state-selector mechanism, including, but not limited to, any links, credentials, or other information necessary for Honey Baked California or its designated experts to gain pre-deployment access to the New Website and the New Website itself until such time as it is publicly deployed by Honey Baked USA.
3. To facilitate the review described in paragraph 2 without delaying the Honey Baked USA's intended February 13, 2020, launch of the New Website, Honey Baked California has agreed that to the extent it is able to do so in the time allowed, it will provide written notice of any concerns or objections that it has regarding the functionality of the New Website's state-selector mechanism to Honey Baked USA by noon EST on February 12, 2020, so that Honey Baked USA can evaluate Honey Baked California's feedback and make any necessary adjustments.
4. Except with the prior written consent of Honey Baked USA or by Order of the Court, Honey Baked California, or any of its counsel, agents, employees, or anyone acting on its behalf, shall not share, furnish, show, or disclose any Confidential Information to any person or entity except:
a) designated agents, consultants, or experts of Honey Baked California who are identified by name, title, and company prior to being provided access and who are actually involved in testing or evaluating the functionality of the New Website's state-selector mechanism, provided, however, that such Confidential Information is furnished, shown, or disclosed in accordance with paragraph 5 hereof
b) legal counsel for the parties to the Action and their associated attorneys, paralegals, office personnel and other employees, agents and vendors (including support staff) who are directly assisting such counsel in the prosecution of the instant litigation, are under the supervision or control of such counsel, and who have been advised by such counsel of their obligations hereunder;
c) the Court and court personnel; and
d) any other person designated by the Court, upon such terms as the Court may deem proper, or as agreed to by the parties to this case.
5. Confidential Information produced by Honey Baked USA shall be utilized only for purposes of evaluating and testing the New Website's state-selector mechanism and for no other purposes, and no person receiving Confidential Information shall, directly or indirectly use, transfer, disclose, or communicate in any way the contents of the Confidential Information to any person other than those specified in this Order; provided, however, that nothing in this Order shall limit Honey Baked USA's use or disclosure of its own Confidential Information.
6. Before any disclosure of any Confidential Information is made to an expert, consultant, or agent of Honey Baked California pursuant to paragraph 4(a) hereof, counsel for Honey Baked California shall obtain the expert's written agreement, in the form of Exhibit A attached hereto, to comply with the Order and be bound by its terms. Counsel for Honey Baked California shall be responsible for providing to counsel for Honey Baked USA copies of Exhibit A signed by each expert, consultant, or agent of Honey Baked California to whom Confidential Information is disclosed.
7. This Order shall not preclude counsel for the parties from using during any proceeding in this litigation any information or data developed by any party through or as a result of its use of Confidential Information.
8. Any person receiving Confidential Information shall not reveal or discuss such information to or with any person not entitled to receive such information under the terms hereof.
9. The production or disclosure of Confidential Information shall in no way constitute a waiver of Honey Baked USA's right to object to the production or disclosure of other information in this litigation or in any other action.
10. Nothing in this Order shall require disclosure of any material that Honey Baked USA contends is protected from disclosure by the attorney-client privilege, work product protection, any other legally recognized privilege or immunity from disclosure, or any applicable federal or state law or regulation prohibiting disclosure.
11. If Confidential Information is disclosed to any person other than in the manner authorized by this Order, Honey Baked California shall, immediately upon learning of the disclosure, inform Honey Baked USA of the pertinent facts relating to such disclosure and make every reasonable effort to retrieve the Confidential Information and prevent disclosure by each unauthorized person who received such material.
12. The restrictions set forth in any of the proceeding paragraphs shall not apply to information or material that:
a) is in the public domain through no fault of the recipient;
b) is acquired from a third party having the right to disclose such information or material; or
c) was lawfully possessed prior to the Court's entry of this Order.
13. Nothing herein shall be deemed to waive any privilege or immunity recognized by law, or shall be deemed an admission as to the admissibility in evidence of any facts or documents revealed in the course of discovery.
14. This Order may be changed by further order of this Court, and is without prejudice to the rights of a party or non-party to move for relief from any of its provisions, or to seek or agree to different or additional protection for any particular material or information.
STIPULATED AND AGREED TO, THROUGH COUNSEL OF RECORD:
Dated: February 11, 2020 KILPATRICK TOWNSEND &
STOCKTON LLP
/s/ J. David Mayberry
J. David Mayberry (Pro Hac Vice)
dmayberry@kilpatricktownsend.com
Sara K. Stadler (Pro Hac Vice)
sstadler@kilpatricktownsend.com
The Grace Building
1114 Avenue of the Americas
New York, New York 10036
Telephone: (212) 775-8700
Facsimile: (212) 775-8800
Kollin J. Zimmermann (Bar No. 273092)
kzimmermann@kilpatricktownsend.com
9720 Wilshire Blvd, Penthouse Suite
Beverly Hills, California 90212
Telephone: (310) 777-3755
Facsimile: (310) 362-8756
Mark H. Reeves (Pro Hac Vice)
mreeves@kilpairicktownsend. com
Enterprise Mill
1450 Greene St., Suite 230
Augusta, Georgia 30901
Telephone: (706) 823-4206
Facsimile: (706) 828-4488
Keith M. Harper (Pro Hac Vice)
Kharper@kilpatricktownsend.com
607 14th Street, NW, Suite 900
Washington, DC 20005
Telephone: (202) 508-5844
Facsimile: (202) 315-3241
Attorneys for Honey Baked USA
Dated: February 11, 2020
PETERSON MARTIN REYNOLDS LLP
/s/ P. Kurt Peterson
P. Kurt Peterson
kpeterson@pmrlegal.com
299 3rd Street Suite 200
Oakland, CA 94607
Telephone: (415) 399-2900
Facsimile: (415) 399-2930
Attorney for Plaintiff Honey Baked
California
PURSUANT TO STIPULATION OF THE PARTIES, IT IS SO ORDERED.
Certification in Compliance with Local Rule 5-4.3.4
I hereby certify that, pursuant to Local Rule 5-4.3.4(a)(2)(i), I have obtained the authorization from the above-noted signatory, representing the above-noted party, to file the above-referenced document, and that the above-noted signatory concurs in the filing's content.
Dated: February 11, 2020 /s/ J. David Mayberry
J. David Mayberry (Pro Hac Vice)
KILPATRICK TOWNSEND & STOCKTON LLP
Attorneys for Honey Baked USA
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, __________________________, declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order dated February __, 2020, in the case of Honey Baked Ham, Inc. v. Honey Baked Ham Company, LLC, Case No. 8:19-cv-01528-JVS (DFMx) (the Order). I agree to comply with and to be bound by all of the terms of the Order and I understand that failure to so comply could expose me to sanctions and punishment in the nature of contempt of court. I solemnly promise that I will not disclose any information that is subject to the Order except in strict compliance with the provisions of the Order. I further agree to submit to the jurisdiction of the United States District Court for the Central District of California for the purposes of enforcing the Order.
So declared this _____ day of ______________________, 2020.
Signature: __________________________
City and State Where signed: ________
