Elawyers Elawyers
Washington| Change

Microsoft Corporation v. The United States Department of Justice, 16-cv-00538-JLR. (2017)

Court: District Court, D. Washington Number: infdco20170721764 Visitors: 6
Filed: Jun. 23, 2017
Latest Update: Jun. 23, 2017
Summary: STIPULATED PROTECTIVE ORDER JAMES L. ROBART , District Judge . Plaintiff Microsoft Corporation and Defendants United States Department of Justice and Attorney General Jefferson B. Sessions, III (collectively, the "Federal Defendants") stipulate and agree to the following protective order. Pursuant to Local Civil Rule 26(c)(2), all departures from the model Protective Order are shown in tracked changes below. 1. PURPOSES AND LIMITATIONS Discovery in this action is likely to involve produ
More

STIPULATED PROTECTIVE ORDER

Plaintiff Microsoft Corporation and Defendants United States Department of Justice and Attorney General Jefferson B. Sessions, III (collectively, the "Federal Defendants") stipulate and agree to the following protective order. Pursuant to Local Civil Rule 26(c)(2), all departures from the model Protective Order are shown in tracked changes below.

1. PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket protection on all disclosures or responses to discovery, the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles, and it does not presumptively entitle parties to file confidential information under seal. The availability of protection pursuant to this Protective Order does not preclude a party from withholding as privileged information otherwise discoverable.

2. "CONFIDENTIAL" MATERIAL

"Confidential" material shall include the following documents and tangible things that may be produced or otherwise exchanged:

A. Non-public information about Microsoft's and the Federal Defendants' policies and practices with respect to (i) warrants, subpoenas, and orders pursuant to 18 U.S.C. § 2703; (ii) non-disclosure orders pursuant to 18 U.S.C. § 2705; (iii) disclosure of customer information in response to valid process; and (iv) other law enforcement practices relating to the collection and/or preservation of evidence. B. Non-public information concerning the economic consequences to Microsoft, if any, of non-disclosure orders issued pursuant to 18 U.S.C. § 2705, as well as Microsoft's customer records and its proprietary information concerning the management, security, and disclosure of customer records, including (but not limited to) both account records and content. C. Non-public information about Microsoft's customer relationships and communications with customers regarding disclosure of legal process D. Court records, whether in this District or any other District, currently maintained under seal and/or subject to non-disclosure orders. E. Privacy Act information, as described in Paragraph 10 of this Order. F. Information or documents subject to the law enforcement privilege under applicable law, as well as information or documents in the possession or under the control of the Federal Defendants that satisfy the standards set forth in Exemption 7 of the Freedom of Information Act, 5 U.S.C. § 552(b)(7).

3. SCOPE

The protections conferred by this agreement cover not only confidential material (as defined above) but also (1) any information copied or extracted from confidential material; (2) all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, conversations, or presentations by parties or their counsel that might reveal confidential material. However, the protections conferred by this agreement do not cover information that is in the public domain or becomes part of the public domain through trial or otherwise.

4. ACCESS TO AND USE OF "CONFIDENTIAL" MATERIAL

4.1 Basic Principles. A receiving party may use confidential material that is disclosed or produced by another party or by a non-party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Confidential material may be disclosed only to the categories of persons and under the conditions described in this agreement. Confidential material must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited to the persons authorized under this agreement.

4.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered by the court or permitted in writing by the designating party, a receiving party may disclose any confidential material only to:

(a) the receiving party's counsel of record in this action, as well as employees of counsel to whom it is reasonably necessary to disclose the information for this litigation, including contract review attorneys, law clerks, paralegals, legal secretaries, and other categories of employees regarding which the parties may subsequently agree;

(b) the officers, directors, and employees (including in house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation;

(c) experts and consultants to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);

(d) the court, court personnel, and court reporters and their staff;

(e) document management or electronic discovery services retained by counsel to assist in the management of confidential material, provided that counsel for the party retaining the document management or electronic discovery service instructs the service not to disclose any confidential material to third parties and to immediately return all originals and copies of any confidential material and to destroy all electronic copies upon completion of the service;

(f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this agreement; and

(g) on a case-by-case basis to be agreed on by the parties, any mediator retained by the parties or appointed by the Court in this action and employees of such mediator who are assisting in the conduct of the mediation.

4.3 Filing Confidential Material. Before filing confidential material or discussing or referencing such material in court filings, the filing party shall confer with the designating party to determine whether the designating party will remove the confidential designation, whether the document can be redacted, or whether a motion to seal or stipulation and proposed order is warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal. Court records of this District or any other District that are currently maintained under seal and/or subject to nondisclosure orders and/or subject to the restrictions of Fed. R. Crim. P. 6(e) may be filed with this Court under seal, and no further order of this Court is required to allow the filing under seal of court records currently maintained under seal and/or subject to nondisclosure orders and/or subject to Fed. R. Crim. P. 6(e) in other proceedings. This provision shall not be construed to otherwise affect the sealing of any material pursuant to Fed. R. Crim. P. 6(e).

5. DESIGNATING PROTECTED MATERIAL

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or non-party that designates information or items for protection under this agreement must take care to limit any such designation to specific material that qualifies under the appropriate standards. The designating party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify, so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this agreement.

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or delay the case development process or to impose unnecessary expenses and burdens on other parties) expose the designating party to sanctions.

If it comes to a designating party's attention that information or items that it designated for protection do not qualify for protection, the designating party must promptly notify all other parties that it is withdrawing the mistaken designation.

5.2 Manner and Timing of Designations. Except as otherwise provided in this agreement (see, e.g., section 5.2(b) below), or as otherwise stipulated or ordered, disclosure or discovery material that qualifies for protection under this agreement must be clearly so designated before or when the material is disclosed or produced.

(a) Information in documentary form: (e.g., paper or electronic documents and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the designating party must affix the word "CONFIDENTIAL" to each page that contains confidential material. If only a portion or portions of the material on a page qualifies for protection, the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

(b) Testimony given in deposition or in other pretrial or trial proceedings: the parties must identify on the record, during the deposition, hearing, or other proceeding, all protected testimony, without prejudice to their right to so designate other testimony after reviewing the transcript. Any party or non-party may, within thirty days after receiving a deposition transcript, designate portions of the transcript, or exhibits thereto, as confidential. Until such time as this thirty (30) day period has concluded, the entirety of the deposition transcript shall be presumptively treated by the receiving party as having been designated by the producing party as "Confidential" during the deposition.

(c) Other tangible items: the producing party must affix in a prominent place on the exterior of the container or containers in which the information or item is stored the word "CONFIDENTIAL." If only a portion or portions of the information or item warrant protection, the producing party, to the extent practicable, shall identify the protected portion(s).

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the designating party's right to secure protection under this agreement for such material. Upon timely correction of a designation, the receiving party must make reasonable efforts to ensure that the material is treated in accordance with the provisions of this agreement.

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 Timing of Challenges. Any party or non-party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a designating party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed.

6.2 Meet and Confer. The parties must make every attempt to resolve any dispute regarding confidential designations without court involvement. Any motion regarding confidential designations or for a protective order must include a certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good faith meet and confer conference with other affected parties in an effort to resolve the dispute without court action. The certification must list the date, manner, and participants to the conference. A good faith effort to confer requires a face-to-face meeting or a telephone conference.

6.3 Judicial Intervention. If the parties cannot resolve a challenge without court intervention, the designating party may file and serve a motion to retain confidentiality under Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of persuasion in any such motion shall be on the designating party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the challenging party to sanctions. All parties shall continue to maintain the material in question as confidential until the court rules on the challenge.

7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION

If a party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL," that party must:

(a) promptly notify the designating party in writing and include a copy of the subpoena or court order;

(b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this agreement. Such notification shall include a copy of this agreement; and

(c) cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected.

(d) This provision shall not be construed to affect any other obligations pertaining to the confidentiality of information or items designated as "CONFIDENTIAL" that a party may have.

8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential material to any person or in any circumstance not authorized under this agreement, the receiving party must immediately (a) notify in writing the designating party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this agreement, and (d) request that such person or persons execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.

9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL

When a producing party gives notice to receiving parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review. Pursuant to Rules 16(b) and 26(c) of the Federal Rules of Civil Procedure, and Rule 502 of the Federal Rules of Evidence, this Order invokes the protections afforded by Rule 502(d) of the Federal Rules of Evidence. Namely, disclosure of privileged material in connection with this litigation will be deemed unintentional and inadvertent.

10. PRIVACY ACT INFORMATION

Pursuant to 5 U.S.C. § 552a(b)(11), Federal Defendants are authorized to release to Microsoft's counsel, the Court, and those persons defined in Paragraph 4.2 of this Order, records or information containing Privacy Act-protected information, without redaction of such information, without obtaining prior written consent of the individuals whose names, addresses, and other identifying information may be present in such documents. Such disclosure is subject to the conditions set forth in this Order.

So long as counsel for Federal Defendants exercise reasonable efforts to prevent the disclosure of information protected from disclosure by the Privacy Act, 5 U.S.C. § 552a, other than as permitted under this Order, disclosures under this Order, including inadvertent disclosures of such information, shall not be construed as a violation of the Privacy Act.

11. NON TERMINATION AND RETURN OF DOCUMENTS

Within 60 days after the termination of this action, including all appeals, each receiving party must destroy or return all confidential material to the producing party, including all copies, extracts and summaries thereof.

Notwithstanding this provision, except as may be agreed in the future, counsel are entitled to retain one archival copy of all documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain confidential material.

The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

PURSUANT TO STIPULATION, IT IS SO ORDERED.

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, ___________________________ [print or type full name], of ___________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Western District of Washington on [date] in the case of Microsoft Corporation v. United States Department of Justice et al., No. 16-cv-00538-JLR. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.

I further agree to submit to the jurisdiction of the United States District Court for the Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action.

Date: ____________________ City and State where sworn and signed: ________________________ Printed name:_____________________ Signature: _____________________ UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE MICROSOFT CORPORATION, CASE NO. [CASE #] Plaintiff, MODEL v. No. 16-cv-00538-JLR [DEFENDANT], STIPULATED PROTECTIVE Defendant ORDER THE UNITED STATES DEPARTMENT OF Noted for Consideration: JUSTICE, and JEFFERSON B. SESSIONS, III, June 22, 2017 in his official capacity as Attorney General of the United States, Defendants.

1.Plaintiff Microsoft Corporation and Defendants United States Department of Justice and Attorney General Jefferson B. Sessions, III (collectively, the "Federal Defendants") stipulate and agree to the following protective order. Pursuant to Local Civil Rule 26(c)(2), all departures from the model Protective Order are shown in tracked changes below.

1. PURPOSES AND LIMITATIONS

Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket protection on all disclosures or responses to discovery, the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles, and it does not presumptively entitle parties to file confidential information under seal. The availability of protection pursuant to this Protective Order does not preclude a party from withholding as privileged information otherwise discoverable.

2. 2."CONFIDENTIAL" MATERIAL

"Confidential" material shall include the following documents and tangible things produced or otherwise exchanged: [The parties must include a list of specific documents such as "company's customer list" or "plaintiff's medical records;" do not list broad categories of documents such as "sensitive business material"]. that may be produced or otherwise exchanged:

A. 3. Non-public information about Microsoft's and the Federal Defendants' policies and practices with respect to (i) warrants, subpoenas, and orders pursuant to 18 U.S.C. § 2703; (ii) non-disclosure orders pursuant to 18 U.S.C. § 2705; (iii) disclosure of customer information in response to valid process; and (iv) other law enforcement practices relating to the collection and/or preservation of evidence. B. Non-public information concerning the economic consequences to Microsoft, if any, of non-disclosure orders issued pursuant to 18 U.S.C. § 2705, as well as Microsoft's customer records and its proprietary information concerning the management, security, and disclosure of customer records, including (but not limited to) both account records and content. C. Non-public information about Microsoft's customer relationships and communications with customers regarding disclosure of legal process D. Court records, whether in this District or any other District, currently maintained under seal and/or subject to non-disclosure orders. E. Privacy Act information, as described in Paragraph 10 of this Order. F. Information or documents subject to the law enforcement privilege under applicable law, as well as information or documents in the possession or under the control of the Federal Defendants that satisfy the standards set forth in Exemption 7 of the Freedom of Information Act, 5 U.S.C. § 552(b)(7).

3. SCOPE

The protections conferred by this agreement cover not only confidential material (as defined above),) but also (1) any information copied or extracted from confidential material; (2) all copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony, conversations, or presentations by parties or their counsel that might reveal confidential material.

However, the protections conferred by this agreement do not cover information that is in the public domain or becomes part of the public domain through trial or otherwise.

4. 4. ACCESS TO AND USE OF "CONFIDENTIAL" MATERIAL

4.1 4.1 Basic Principles. A receiving party may use confidential material that is disclosed or produced by another party or by a non-party in connection with this case only for prosecuting, defending, or attempting to settle this litigation. Confidential material may be disclosed only to the categories of persons and under the conditions described in this agreement. Confidential material must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access is limited to the persons authorized under this agreement. 4.2 4.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered by the court or permitted in writing by the designating party, a receiving party may disclose any confidential material only to:

(a) (a) the receiving party's counsel of record in this action, as well as employees of counsel to whom it is reasonably necessary to disclose the information for this litigation, including contract review attorneys, law clerks, paralegals, legal secretaries, and other categories of employees regarding which the parties may subsequently agree;

(b) (b) the officers, directors, and employees (including in house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation, unless the parties agree that a particular document or material produced is for Attorney's Eyes Only and is so designated;

(c) (c) experts and consultants to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);

(d) (d) the court, court personnel, and court reporters and their staff;

(e) (e) copydocument management or imagingelectronic discovery services retained by counsel to assist in the duplicationmanagement of confidential material, provided that counsel for the party retaining the copydocument management or imagingelectronic discovery service instructs the service not to disclose any confidential material to third parties and to immediately return all originals and copies of any confidential material and to destroy all electronic copies upon completion of the service;

(f) (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal confidential material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this agreement; and

(g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or know the information.

(g) 4.3 on a case-by-case basis to be agreed on by the parties, any mediator retained by the parties or appointed by the Court in this action and employees of such mediator who are assisting in the conduct of the mediation.

4.3 Filing Confidential Material. Before filing confidential material or discussing or referencing such material in court filings, the filing party shall confer with the designating party to determine whether the designating party will remove the confidential designation, whether the document can be redacted, or whether a motion to seal or stipulation and proposed order is warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal. Court records of this District or any other District that are currently maintained under seal and/or subject to nondisclosure orders and/or subject to the restrictions of Fed. R. Crim. P. 6(e) may be filed with this Court under seal, and no further order of this Court is required to allow the filing under seal of court records currently maintained under seal and/or subject to nondisclosure orders and/or subject to Fed. R. Crim. P. 6(e) in other proceedings. This provision shall not be construed to otherwise affect the sealing of any material pursuant to Fed. R. Crim. P. 6(e).

5. 5. DESIGNATING PROTECTED MATERIAL

5.1 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each party or non-party that designates information or items for protection under this agreement must take care to limit any such designation to specific material that qualifies under the appropriate standards. The designating party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify, so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this agreement.

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or delay the case development process or to impose unnecessary expenses and burdens on other parties) expose the designating party to sanctions.

If it comes to a designating party's attention that information or items that it designated for protection do not qualify for protection, the designating party must promptly notify all other parties that it is withdrawing the mistaken designation.

5.2 5.2 Manner and Timing of Designations. Except as otherwise provided in this agreement (see, e.g., second paragraph of section 5.2(ab) below), or as otherwise stipulated or ordered, disclosure or discovery material that qualifies for protection under this agreement must be clearly so designated before or when the material is disclosed or produced.

(a) (a) Information in documentary form: (e.g., paper or electronic documents and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings), the designating party must affix the word "CONFIDENTIAL" to each page that contains confidential material. If only a portion or portions of the material on a page qualifies for protection, the producing party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).

(b) (b) Testimony given in deposition or in other pretrial or trial proceedings: the parties and any participating non parties must identify on the record, during the deposition, hearing, or other pretrial proceeding, all protected testimony, without prejudice to their right to so designate other testimony after reviewing the transcript. Any party or non-party may, within fifteenthirty days after receiving the transcript of the a deposition or other pretrial proceedingtranscript, designate portions of the transcript, or exhibits thereto, as confidential. If a Until such time as this thirty (30) day period has concluded, the entirety of the deposition transcript shall be presumptively treated by the receiving party or non as having been designated by the producing party desires to protect confidential information at trial, the issue should be addressed as "Confidential" during the pre-trial conference deposition.

(c) (c) Other tangible items: the producing party must affix in a prominent place on the exterior of the container or containers in which the information or item is stored the word "CONFIDENTIAL." If only a portion or portions of the information or item warrant protection, the producing party, to the extent practicable, shall identify the protected portion(s).

5.3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items does not, standing alone, waive the designating party's right to secure protection under this agreement for such material. Upon timely correction of a designation, the receiving party must make reasonable efforts to ensure that the material is treated in accordance with the provisions of this agreement.

6. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

6.1 6.1 Timing of Challenges. Any party or non-party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a designating party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed.

6.2 6.2 Meet and Confer. The parties must make every attempt to resolve any dispute regarding confidential designations without court involvement. Any motion regarding confidential designations or for a protective order must include a certification, in the motion or in a declaration or affidavit, that the movant has engaged in a good faith meet and confer conference with other affected parties in an effort to resolve the dispute without court action. The certification must list the date, manner, and participants to the conference. A good faith effort to confer requires a face-to-face meeting or a telephone conference.

6.3 6.3 Judicial Intervention. If the parties cannot resolve a challenge without court intervention, the designating party may file and serve a motion to retain confidentiality under Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of persuasion in any such motion shall be on the designating party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the challenging party to sanctions. All parties shall continue to maintain the material in question as confidential until the court rules on the challenge.

7. 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION

If a party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as "CONFIDENTIAL," that party must:

(a) (a) promptly notify the designating party in writing and include a copy of the subpoena or court order;

(b) (b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this agreement. Such notification shall include a copy of this agreement; and

(c) (c) cooperate with respect to all reasonable procedures sought to be pursued by the designating party whose confidential material may be affected.

(d) This provision shall not be construed to affect any other obligations pertaining to the confidentiality of information or items designated as "CONFIDENTIAL" that a party may have.

8. 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential material to any person or in any circumstance not authorized under this agreement, the receiving party must immediately (a) notify in writing the designating party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this agreement, and (d) request that such person or persons execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.

9. 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL

When a producing party gives notice to receiving parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order or agreement that provides for production without prior privilege review. The parties agree to the entry of a non waiver order under Fed. R. Evid. 502(d) as set forth herein Pursuant to Rules 16(b) and 26(c) of the Federal Rules of Civil Procedure, and Rule 502 of the Federal Rules of Evidence, this Order invokes the protections afforded by Rule 502(d) of the Federal Rules of Evidence. Namely, disclosure of privileged material in connection with this litigation will be deemed unintentional and inadvertent.

10. 10. PRIVACY ACT INFORMATION

Pursuant to 5 U.S.C. § 552a(b)(11), Federal Defendants are authorized to release to Microsoft's counsel, the Court, and those persons defined in Paragraph 4.2 of this Order, records or information containing Privacy Act-protected information, without redaction of such information, without obtaining prior written consent of the individuals whose names, addresses, and other identifying information may be present in such documents. Such disclosure is subject to the conditions set forth in this Order.

So long as counsel for Federal Defendants exercise reasonable efforts to prevent the disclosure of information protected from disclosure by the Privacy Act, 5 U.S.C. § 552a, other than as permitted under this Order, disclosures under this Order, including inadvertent disclosures of such information, shall not be construed as a violation of the Privacy Act.

10. 11. NON TERMINATION AND RETURN OF DOCUMENTS

Within 60 days after the termination of this action, including all appeals, each receiving party must destroy or return all confidential material to the producing party, including all copies, extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods of destruction.

Notwithstanding this provision, except as may be agreed in the future, counsel are entitled to retain one archival copy of all documents filed with the court, trial, deposition, and hearing transcripts, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain confidential material.

The confidentiality obligations imposed by this agreement shall remain in effect until a designating party agrees otherwise in writing or a court orders otherwise.

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED: 06/22/17 /s/Ambika K. Doran Attorneys for Plaintiff DATED: 6/22/17 /s/ Jennie L. Kneedler [with consent] Attorneys for Defendant

PURSUANT TO STIPULATION, IT IS SO ORDERED.

IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any documents in this proceeding shall not, for the purposes of this proceeding or any other proceeding in any other court, constitute a waiver by the producing party of any privilege applicable to those documents, including the attorney client privilege, attorney work product protection, or any other privilege or protection recognized by law.

DATED: _____________ ___________________________________________________________________ [Name of Judge] United States District Court Judge

EXHIBIT A

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

I, ___________________________________________________________ [print or type full name], of _____________________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Western District of Washington on [date] in the case of _____________ [insert formal name of the case and the number and initials assigned to it by the court]. Microsoft Corporation v. United States Department of Justice et al., No. 16-cv-00538-JLR. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order.

I further agree to submit to the jurisdiction of the United States District Court for the Western District of Washington for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action.

Date: ____________________ City and State where sworn and signed: __________________ Printed name: _________________________ Signature: ________________________ ______________________________________
Source:  Leagle

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer