it is hereby stipulated and agreed, by · 2014. 9. 18. · other information taken, given or...

09/15/2014 15:35 8557950574 ARCHER & GREINER PC

UNITED ST ATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

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MALIBU MEDIA, LLC,

PAGE 03/15

Civil Action No. 2:13-cv-06252-GP Plaintiff,

vs.

ERIC SIEGEL,

Defendant.

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STIPULATED PROTECTIVE ORDER

IT IS HEREBY STIPULATED AND AGREED, by and among the undersigned,

subject to the approval of the Court, that:

1. All documents, deposition testimony, interrogatory responses, admissions and

other information taken, given or exchanged in. the course of pretrial discovery in this action and

any copies, abstracts, excerpts, analyses, sum.m.ades or other materials that contain, reflect or

disclose any such documents, testimony, responses, admissions or other information are herein

referred to as "Discovery Material."

2. Except as provided herein, Discovery Material shall be used solely for the

prosecution or defense of the above-captioned action (the "Action"), an.d shall not be used for

any other purpose.

3. A pa:iiy may designate Discovery Material as "Confidential." Axiy copies~

abstracts, excerpts, analyses, summaries or other materials that contain, reflect or disclose

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Case 2:13-cv-06252-GP Document 16 Filed 09/17/14 Page 1 of 14


information. contained in Discovery Material that has been designated Confidential shall

themselves be marked with the same designation as the source material.

4. The term "Confidential" mean.s Discovery Material that a designating party

PAGE 04/16

believes in good faith to contain: (a) proprietary or commercially sensitive business information;

(b) information subject by law or by contract to a legally protected right of privacy; or (c)

personal or confidential infonnation which may include, by way of example and not limitation,

income, credit) banking, wealth) tax, and health information.

S. Confidential Discovery Material may be disclosed only to those persons identified

in paragraph 9 below. All persons receiving Confidential Discovery Material shall be bound by

the terms of this Stipulation and Order. If any person violates or threatens to violate any of the

terms hereof, the aggrieved party may seek any appropriate relief from the Court.

6. Any party may designate Discovery Material as Confidential by: (a) stamping

each page containfag Confidential material with the legend "Confidential;" or (b) by separate

written notification of such designation.

7. Deposition testimony may be designated as Confidential either: (a) at the

deposition, by making a statement for inclusion in the deposition transcript; or (b) on or before

thirty (30) calendar days after receipt of the transcript, by making a notAtion on the transcript of

the deposition and informing all other counsel in writing of such designation. Until the

expiration of such thirty (30) day period with respect to any deposition transcript, all deposition

testimony and transcripts, and any information contained therein, or exhibits thereto, shall be

deemed to be Confidential and treated as if so designated. When Confidential information. is

designated in a deposition transcript, the party making the designation shall instruct the reporter

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to make the following notations: (i) on the fast page of the transcript: "This transcript contains

Confidential Discovery Material"; and (ii) on each page containing Confidential information:

"Co1tfidential."

8. Responses to document requests and interrogatories may be designated

"Confidential" by: (a) so indicating in the response; or (b) by separate written notification. of

such designation within. thirty (30) days of the service of the response. Until the expiration of

such thirty (30) day period with respect to any responses to document request and

interrogatories, any information contained therein shall be deemed to be Confidential and treated

as if so designated.

9. Discovery Material designated as Confidential shall n.ot be given, shown,

disclosed, exhibited, or made available in any way, directly or indirectly, to any person other

than:

(a) Counsel of record for the respective parties and employees of such counsel to the

extent necessary to assist counsel in this litigation;

(b) In-house counsel for any party;

( c) The parties, including those employees of the parties assisting counsel in this

litigation;

(d) The Court, persons employed.by the Court and stenographers transcribing the

testimony or argument at a hearing, trial or deposition in the Action;

( e) Experts retained by counsel in connection with the Action, and employees of such

experts, to the extent necessary to assist counsel in the preparation of the Action,

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provided that such experts and their employees sha.ll 11ot discuss or disclose material

designated as Confidential with anyone other than counsel;

(f) Professional vendors retained to provide litigation support services involving

Discovery Material;

(g) As to a particular document that has been marked Confidential, the author or preparer

of that document; and

(h) Actual or potential non-party fact witnesses, including fact witnesses in preparation

for deposition or trial, provided there is a reasonable basis to believe that the witness

will give relevant testimony regarding Discovery Material that has been designated as

Confidential.

10. Attendance at depositions at which Confidential Materials are identified,

discussed or disclosed shall be limited to the those persons who are authorized to receive such

documents or information under the terr.n.s of this Order. If any person not entitled to receive

such documents or information is in attendance at a deposition, a party at its request may have

that individual excluded from the room in which the deposition is taking place for the duration. of

time in which the documents or infonnation are being discussed.

11. All persons listed in paragraphs 9( e ), (f), and (h) to whom Confidential Discovery

Material is disclosed shall be informed of and agree to be bound by the terms of this Stipulation

and Order. Prior to the disclosure to such persons of any Discovery Material designated as

Confidential, the person shall execute a written acknowledgement, substantially in the form of

Exhibit A ann.exed hereto. Counsel for the party disclosing the Confidential Discovery Material

pursuant to this paragraph shall be responsible for maintaining the executed acknowledgement.

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12. In the event a 11on-party witness refuses to agree to be bound by this Order,

documents or infounation designated as Confidential shall not be revealed to the non.-party

witness without the consent of all parties to this Order or by leave of Court.

PAGE 07/16

13. An inadvertent failure to designate Discovery Material as Confidential does not,

standing alone, waive the designating party's right to secure protection for such Discovery

Matedal. If Discovery Material is appropriately designated as Confidential after the Discovery

Material was initially produced, the receiving party, on timely notification of the designation,

must treat the Discovery Material in accordance with this Stipulation and Order, including

making reasonable efforts to retrieve aU copies and excerpts of any re-designated Discovery

Material from persons not entitled to receive it.

14. Nothing in this Order shall operate as a waiver of, or otherwise prejudice,

Defendants' or Plaintiffs rights under applicable law regarding the treatment of inadvertently

produced Discovery Materials produced prior to the entry of this Order.

15. This Stipulation and Order shall apply with equal force to any Discovery Material

produced by any non-party to this Action. Non-parties may avail themselves of the protections

of this Stipulation and Order, and may designate materials produced by them as Co11fidenti.al.

16. Any party to the Action to whom infonnati.on designated as Confidential is

produced may object at any time during the pendency of the Action to the designation of

Discovery Material as Confidential. TI1e objection shall be made in writing to counsel for the

designating party. Counsel shall confer in good faith in an effort to resolve any dispute

concerning such designation. If the objection cannot be resolved by agreement within ten {10)

business days of the date of service of the objection, the objecting party may file a motion with

5



the Court, seeking an order determining whether the Discovery Material was properly designated

and the objecting party shall bear the burden or persuasion on any such motion. In the event of

such motion, all Discovery Materials whose designation is so objected to shall continue to be

treated as Confidential until the Court issues an order reclassifying such Discovery Material. If

no such motion is ma.de, the documents or inform.ation shall r.em.ain. as designated.

17. Entering into, agreeing to and/or producing Discovery Material designated as

Confidential or otherwise complying with the tenn.s of this Stipulation and Order shall not:

(a) operate as an admissio11 by any party that any particular Confidential Discovery

Material contains or reflects trade secrets or any other type of Confidential or

information;

(b) prejudice in any way the rights of the parties to object to the production of documents

they consider not subject to discovery, or operate as an admission by any party that

the restrictions and procedures set forth herein constitute adequate protection for any

particular information deemed by any pany to be Confidential;

(c) prejudice in any way the rights of any party to object to the authenticity or

admissibility into evidence of any document, testimony or other evidence subject to

this Stipulation and Or.der;

(d) prejudice in any way the rights of a. party to seek a detennination by the Court

whether any Discovery Material designated as Confidential should be subject to the

terms of this Stipulation and Order;

( e) prejudice in any way the rights of a party to petition the Court for. a further protective

order relating to any Discovery Material or such designated as Confidential; or

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(f) prevent the parties from agreeing to alter or waive the provisions or protections

provided for in this Stipulation and Order with respect to any particular Discovery

Materials.

18. This Stipulation and Order may be modified with the written consent of the

PAGE 09/16

parties, or by an Order of the Court, and nothing in this Stipulation and Order shall be deemed to

prevent such modification.

19. A party's inadvertent disclosllre in connectfon with this Action of Discovery

Material that such party believes constitutes, contains or reflects information otherwise protected

by any applicable privilege or immunity from discovery, such as the attorney-client privilege and

the work product doctrine ("Privileged Material"), shall not constitnte a waiver, with respect to

such Privileged Material or generally, of any such privilege or immunity. In the event of such an.

inadvertent disclosure of Privileged Material, the producing party at any time may provide notice

to the other party directing that aU copies of such inadvertently disclosed Privileged Material be

returned to the producing party and barring the other party from using that material or any copies

thereot~ or any information derived therefrom in this Action or otherwise. The party receiving

such notice shall immediately set aside all copies of the Privileged Material described in such

notice and shall not use such Privileged Material, or any infonnation derived therefrom,

provided, however, that an.y party receiving such notice, after setting aside the Privileged

Material, may move, on reasonable notice, and on such grounds other than the inadvertent

prod.uctj:on of such material, for an. order challenging the designation of such material as

Privileged. Material, and may submit for an in camera inspection copies of the Material in

question.

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20. Nothing herein shall be deemed a waiver of, or otherwise preclude a party from

asserting objections to discovery requests (including seekil1g a protective order) based on claims

of privilege, work-product imm.unity, undue burden, lack of relevance, or other limitations on

discovery recognized by applicable law.

21. Nothing contained herein shall prevent any party from disclosing its own

Confidential Infonn.ation as it deems appropriate. Nothing contained in this Stipulation and

Ord.er shall obligate any party to treat as confidential documents or other evidence obtained

outside of formal discovery or other evidence obtained outside of formal discovery in this case;

provided, however, that nothing in this Stipulation and Order shall authorize any party to use any

documents or information in this action or otherwise if such con.fiden.tial document or

information was obtained on a confidential basis and was not intended for use in this litigation or

otherwise.

22. Any pa.rty who wishes to file with the Court documents, pleadings, motion or

other papers containing, affixing, or reflecting Confidential materials (hereafter "Court

Documents") shall be responsible for filing a motion to seal such Court Documents (or the

portions containing Confidential materials) pursuant to Local Rule 5.1.5. ShouJd the motion to

seal not be resolved by the date the Court Documents are scheduled to be filed with the Court,

the filing party shall serve the other party with the Court Documents on the day they are

scheduled to be filed with the Court and, in lieu of filing such Court Documents (or the portions

thereof containing Confidential Materials), will file instead a certificate of service with the

Court. The Court Documents (or portions thereof containing any Confidential Materi.als or

8



Highly Confidential Materials) will then be filed with the Court after the Court has resolved the

motion to seal.

23. In the event that any Confidential Materials are to be disclosed at a hearing or trial

in this action, the d1sclosing party (if not the designating party) will give the designating party no

fewer than ten (10) business days advance notice (or, jn the case of an emergency or expedited

heari11g, as much prior notice as is reasonable under the circumstances, and in any event will use

its best efforts under the circumstances to provide no fewer than three (3) business days notice)

so that the party whose information is to be disclosed may seek an appropriate order from the

Court to protect such documents or information from public disclosure. By agreeing to this

Stipulation and Order, no party waives any right it may have to oppose such relief. With respect

to documents to be introduced as exhibits at trial, the parties shall be governed by the Court's

pre-trial order and future orders of the Court.

24. Within. sixty (60) days after this Action is concluded, counsel for each party who

received any Discovery Material designated as Confidential shall (a) return to each party who

produced such Confidential Discovery Material all copies of the Confidential infonnation

produced by such party, or (b) destroy all documents containing Confide.ntial information.;

provided, however, that coun.seJ of record for each party may keep for their records copies of all

documents filed with the Court in the Action.

25. Plaintiff has expressed a desire to engage a forensic computer expert to examine

and analyze certain computers, storage media, and data produced by Defendant.

(a) Plaintiffs forensic expert, as identified in Plaintiffs Fed. R. Civ. P. 26(a)

Disclosures, will create a forensically sound image ( .. image") of all such computers,

9



storage media) and data produced by Defendant then examine the images to ascertain

if a peer-to-peer client or Plaintiffs copyrighted works are on any of the images. If

not, Plaintiffs forensic expert will continue to search the images for evidence of

deletions, spoliation, and suppressing of evidence. Plaintiffs forensic expert will

perform a search of the images for: (1) torrent files; (2) torrent file fragments; (3) any

files pertaining to peer-to-peer clients; ( 4) any files pertaining to peer-to-peer

distribution; (5) web history relating to BitTorrent activity; and (6) any evidence that

significant alterations have been made to the bard drives consistent with the deletion

or suppressing of evidence. Plaintiffs forensic expert may conduct any other actions

that may be necessary to detennin.e if significant alterations have been made to the

hard drives consistent with the deletion or suppr.essin.g of evidence.

(b) After completing a search of the images, Plaintiff's forensic expert shall disclose

whether or not he found any relevant documents. If so, it will provide the

information to Plaintiffs counsel. Determination as to the form, foundation, and

admissibility of the information will be made by the judge and or magistrate prior to

trial.

(c) In order to ensure that any privileged information will be protected, Plaintiffs

forensic expert will be advised as to the identity ofDefendant(s)' counsel, and will

segregate all potentially attorney-client privileged or attorney-work product from his

search results. Plaintiffs forensic expert will not disclose any such privileged

i11fonnation. to Plaintiff and/or its attorneys.

10



(d) The parties expressly agree that neither Plaintiffs forensic expert's review of

privileged information, nor any inadvertent disclosure thereof will constitute a waiver

of any privilege by Defendant.

(e) Plaintiffs forensic expert will disclose to Plaintiff's counsel whether or not he found

potentially privileged information. The forensic expert will identify this potentially

privileged information to Defendant,s counsel, who will determine whether

Defendant wishes to assert a claim. of privilege to the information. Plaintiff reserves

the right to move the Court for an in camera inspection of any information whose

privileged status it disputes. Plaintiff's forensic expert shall not disclose any

potentially privileged materials to an.yone other than Defendant's counsel in the

absence of one of the following: (a) notification from Defendant's counsel that the

potentially privileged material is not privileged; (b) notification from Defendant's

counsel that any applicable privilege is waived; or (c) an Order of the Court expressly

permitting disclosure.

(f) If Plaintiffs forensic expert's search reveals infonnation or data th.at cann.ot be

reproduced into paper documents (i.e. computer programming instructions, scripts,

execution programs, downloads~ etc.) he may provide a printout of the matchin.g files

and/or data which will be Sltpplied to Plaintiffs counsel. Determination as to the

form, foundatfon, and admissibility of the printout information will be made by the

judge and or magistrate prior to tTial.

(g) If Plaintiff's forensic expert's search reveals relevant information or data matching

the above search criteria, he shall be allowed to disclose the stored location of the

11



data and/or the allocation format of the information. Determination as to the form,

foundation, and admissibility of the location and/or allocation fonnat of the

information will be made by the judge and or magistrate prior to trial.

PAGE 14/16

26. The parties agree that Plaintiffs forensic expert's initial analysis shall be limited

to the steps set forth in this stipulation, plus an analysis of the location of files discovered in

performin.g those steps. No f"urther analysis shall be performed without the agreement of the

parties or Court Order.

27. The parties agree that the search of all Defendant's images shall be limited to the

manner described above and that there shall be no modification or deviation of the methods of

data extraction without prior written agreement of the parties or Order of the Court.

28. The Court retains the right sua sponte to allow disclosure of any subject covered

by the Stipulated Protective Order and/or modify the Stipulated Protective Order at any time the

interest of justice so requires.

29. Counsel for all parties agree to treat this Stipulation as though it has been "So

Ordered'' by the court as of the date of its execution by all parties or their respective counsel of

record.

SIGNATURES ON FOLLOWING PAGE


09/15/2014 15:35 8557950574

I 132!83Svl

Isl Christopher .P. Fiore Christopher P. Fiore Fiore & Barber LLC Attorneys At Law 418 Main Street, Suite 200 Harleysville, PA 19438 Tel: 215-256-0205 Attorneys for the Plaintiff

13

ARCHER & GREINER PC

Isl Darth M. Newman Darth M. Newman ARCHER & GREINER, P.C. One Centennial Sq Haddonfield, NJ Tel: 856-354-3136 A tto1·neys for Defendant

PAGE 15/15 Case 2:13-cv-06252-GP Document 16 Filed 09/17/14 Page 13 of 14


Exhibit A

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA

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MALIBU MEDIA, LLC,

PAGE 16/16

Civil Action No. 2: 13-cv-06252-GP Plaintiff,

vs.

ERIC SIEGEL,

Def end.ant.

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l. I hereby certify my understanding that Discovery Material is being provided to

me pursuant to the terms and restrictions of the Stipulation Protective Order dated

, 2014. ------

2. I have read the Stipulation Protective Order, un.derstand its terms, and agree to be

:fhlly bound by them.

Dated:

Signature:

Name:

14
