Opinion
2:24-cv-05607-GW-BFM
07-30-2024
MOVE, INC., a Delaware corporation; MOVE SALES, INC., a Delaware corporation; REALSELECT, INC., a Delaware corporation, Plaintiffs, v. COSTAR GROUP, INC., a Delaware corporation; JAMES KAMINSKY, an individual; and DOES 1 through 10, inclusive, Defendants.
LATHAM & WATKINS LLP NICHOLAS J. BOYLE MATTHEW W. WALCH (Admitted Pro Hac Vice) Attorneys for Defendant CoStar Group, Inc.
Complaint Filed: July 2, 2024
LATHAM & WATKINS LLP NICHOLAS J. BOYLE MATTHEW W. WALCH (Admitted Pro Hac Vice) Attorneys for Defendant CoStar Group, Inc.
CONFIDENTIALITY PROTECTIVE ORDER
Honorable Brianna Fuller Mircheff, United States Magistrate Judge
1. A. PURPOSES AND LIMITATIONS
Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation 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 Order does not confer blanket protections on all disclosures or responses to discovery and that 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. The parties further acknowledge, as set forth in Section 12.3 (Filing Protected Material), below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 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.
B. GOOD CAUSE STATEMENT
This action is likely to involve trade secrets and other valuable research, development, commercial, financial, technical and/or proprietary information for which special protection from public disclosure and from use for any purpose other than prosecution of this action is warranted. Such confidential and proprietary materials and information consist of, among other things, confidential business or financial information, information regarding confidential business practices, or other confidential research, development, or commercial information (including information implicating privacy rights of third parties), information otherwise generally unavailable to the public, or which may be privileged or otherwise protected from disclosure under state or federal statutes, court rules, case decisions, or common law. Accordingly, to expedite the flow of information, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that the parties are permitted reasonably necessary uses of such material in preparation for and in the conduct of trial, to address their handling at the end of the litigation, and serve the ends of justice, a protective order for such information is justified in this matter. It is the intent of the parties that information will not be designated as confidential for tactical reasons and that nothing be so designated without a good faith belief that it has been maintained in a confidential, non-public manner, and there is good cause why it should not be part of the public record of this case.
2. DEFINITIONS
2.1 Action: this pending federal lawsuit, Move, Inc., et al. v. CoStar Group, Inc., et al., U.S. District Court for the Central District of California Case No. 2:24-cv-05607-SK, and any appellate proceedings.
2.2 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.
2.3 Confidentiality Designations: a Party or Non-Party's designation of confidential information or items under this Order as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY”.
2.3.1 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c), and as specified above in the Good Cause Statement.
2.3.2 “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” Information or Items: CONFIDENTIAL Information or Items that the Producing Party reasonably and in good faith believes: (1) contains trade secrets, proprietary technical, business, or financial information; and (2) the disclosure of which would create a substantial risk of competitive, commercial, or financial harm to the Producing Party or its personnel, clients, or customers.
2.3.3 “OUTSIDE COUNSEL ONLY” Information or Items: HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY Information or Items that the Producing Party reasonably and in good faith believes includes competitively sensitive information that disclosure to House Counsel would create a substantial risk of competitive, commercial, or financial harm to the Producing Party or its personnel, clients, or customers.
2.4 Counsel: Outside Counsel of Record and House Counsel (as well as their support staff).
2.5 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY”.
2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.
2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this Action.
2.8 House Counsel: attorneys who are employees of a party to this Action. House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: attorneys who are not employees of a party to this Action but are retained to represent or advise a party to this Action and have appeared in this Action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party, including support staff.
2.11 Party: any party to this Action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.12 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this Action.
2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.
2.14 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY”.
2.15 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.
3. SCOPE
The protections conferred by this Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
Any use of Protected Material at trial shall be governed by the orders of the trial judge. This Order does not govern the use of Protected Material at trial.
4. DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this Action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.
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 Order 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 Order.
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 the case development process or to impose unnecessary expenses and burdens on other parties) may 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, that Designating Party must promptly notify all other Parties that it is withdrawing the inapplicable designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.
Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix at a minimum, the legend “CONFIDENTIAL” (hereinafter “CONFIDENTIAL legend”), “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” (hereinafter “AEO legend”) or “OUTSIDE COUNSEL EYES ONLY”. (hereinafter “OCEO legend”) to each page that contains protected 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).
A Party or Non-Party that makes original documents available for inspection need not designate them for protection until after the inspecting Party has indicated which documents it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “OUTSIDE COUNSEL EYES ONLY.” After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the “CONFIDENTIAL legend”, the “AEO legend,” or the OCEO Legend, as applicable, to each page that contains Protected 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) for testimony given in depositions, that the Designating Party identify the Disclosure or Discovery Material on the record whenever possible, but a Party or Non-Party may designate portions of depositions as containing Protected Material after transcription of the proceedings; a Party or Non-Party will have until thirty (30) days after receipt of the deposition transcript to inform the parties to the action of the portions of the transcript to be designated CONFIDENTIAL, “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY”. From the time of the deposition until the designation, the deposition and transcript shall be deemed “OUTSIDE COUNSEL EYES ONLY” unless otherwise agreed to by the parties. Counsel for a Party or a Non-Party witness shall have the right to exclude from depositions any person who is not authorized to receive “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY”, or “OUTSIDE COUNSEL ONLY” information pursuant to this Order, but such right of exclusion shall be applicable only during periods of examination or testimony during which “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY”, or “OUTSIDE COUNSEL ONLY” information is being used or discussed.
Any document designated as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY”, or “OUTSIDE COUNSEL ONLY” that is marked as an exhibit in any deposition shall be treated according to the designation of that document prior to the deposition.
(c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information is stored the legend “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY”. If only a portion or portions of the information warrants 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 Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.
5.4 Altering or Amending Designations. A party may change the designation of any Disclosure or Discovery Material produced by another Producing Party without a designation to a designation of “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY”, or “OUTSIDE COUNSEL ONLY” or designate any Disclosure or Discovery Material produced as “CONFIDENTIAL” as “HIGHLY CONFIDENTIAL-ATTORNEYS' EYESONLY” or “OUTSIDE COUNSEL ONLY”, or “HIGHLY CONFIDENTIAL” as “OUTSIDE COUNSEL ONLY”, provided that said Disclosure or Discovery Material contains the upward Designating Party's own confidential information as described in Section 2. Increasing a designation shall be accomplished by providing written notice to all Parties identifying the Disclosure or Discovery Material whose designation is to be increased. Promptly after providing such notice, the upward Designating Party shall provide re-labeled copies of the material to each Receiving Party reflecting the new designation. The Receiving Party will replace the incorrectly designated material with the newly designated material and will destroy the incorrectly designated material. Any Party may object to the increased designation pursuant to Section 6.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time that is consistent with the Court's Scheduling Order. 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 Action, 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 Challenging Party Shall initiate the dispute resolution process under Civil Local Rule 37-1 et seq.
6.3 The burden of persuasion in any such challenge proceeding 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. Unless the Designating Party has waived or withdrawn the confidentiality designation, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation until the Court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Discovery Material that is disclosed or produced by another Party or by a Non-Party in connection with this Action only for prosecuting, defending, or attempting to settle this Action. Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the Action has been terminated, a Receiving Party must comply with the provisions of Section 13 below (FINAL DISPOSITION).
Protected 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 Order.
7.2 Disclosure of “OUTSIDE COUNSEL EYES ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “OUTSIDE COUNSEL EYES ONLY” only to:
(a) the Receiving Party's Outside Counsel of Record in this Action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this Action;
(b) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) the Court and its personnel;
(d) court reporters and their staff;
(e) professional jury or trial consultants, mock jurors, Professional Vendors, and insurance counsel to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) the author or recipient of a document containing the information, provided that the Receiving Party identifies any purported “author” or “recipient” who intends to review “OUTSIDE COUNSEL EYES ONLY” Information or Items, prior to such person reviewing any “OUTSIDE COUNSEL EYES ONLY” Information or Items. After the disclosure of any such person, the Producing Party shall then have three business days to object to disclosure to that person. The Producing Party must identify with specificity the reason for such a challenge, and the burden of demonstrating good cause for the purported “author” or “recipient” to review any “OUTSIDE COUNSEL EYES ONLY” Information or Items shall fall on the Producing Party. The disclosed purported “author” or “recipient” shall not be permitted to review “OUTSIDE COUNSEL EYES ONLY” Information or Items during the three-day objection period or while an objection remains pending.
If the parties cannot resolve the dispute over an objection, the Receiving Party may move the Court for an order permitting the identified “author” or “recipient” to review the Information or Items. All persons identified pursuant to this provision shall not be permitted to keep any Protected Material, have been advised of their obligations under this Order, and have signed the “Acknowledgement and Agreement to Be Bound.” (Exhibit A).
(g) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary. A witness who is shown documents or information containing Protected Material but who is not otherwise authorized to have access to copies of documents or testimony containing Protected Material shall not retain or copy portions of the transcripts of their depositions or testimony or any documents that contain Protected Material except to the extent necessary for the witness to review, make any changes, and sign the deposition transcript pursuant to Federal Rule of Civil Procedure 30(e). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Order; and
(h) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the parties engaged in settlement discussions.
7.3 Disclosure of “HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY” only to:
(a) the Receiving Party's Outside Counsel of Record in this Action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this Action;
(b) up to two House Counsel, as defined in Section 2.8 above, and one non-
attorney member of the legal department for the Receiving Party, to whom disclosure is reasonably necessary for this Action. The Receiving Party will identify, by name and title, any House Counsel or non-attorney member of the legal department who intends to review HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information or Items, prior to such House Counsel or non-attorney member of the legal department reviewing any HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information or Items. After the disclosure of any House Counsel or non-attorney member of the legal department, the Producing Party shall then have three days to object to disclosure to that House Counsel or non-attorney member of the legal department. The Producing Party must identify with specificity the reason for such a challenge. The disclosed House Counsel or non-attorney member of the legal department shall not be permitted to review HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY Information or Items during the three-day objection period or while an objection remains pending. If the parties cannot resolve the dispute over an objection, the Receiving Party may move the Court for an order permitting the identified House Counsel or non-attorney member of the legal department to review the Information or Items. In the event that any of the identified House Counsel or non-attorney member of the legal department cease to be employed by the Receiving Party or the Receiving Party wishes to replace any of the identified House Counsel or non-attorney, the Receiving Party shall be entitled to identify the House Counsel or non-attorney's successor or replacement who intends to review HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONLY Information or Items, prior to such successor or replacement reviewing any HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY Information or Items; the same three-day objection period shall apply. All House Counsel and non-attorneys designated pursuant to this provision shall not be permitted to keep any Protected Material, have been advised of their obligations under this Order, and have signed the “Acknowledgement and Agreement to be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the Court and its personnel;
(e) court reporters, videographers, and their staff, and any other tribunal or dispute resolution officer duly appointed or assigned in connection with this Action;
(f) professional jury or trial consultants, mock jurors, Professional Vendors, and insurance counsel to whom disclosure is reasonably necessary for this Action and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g) the author or recipient of a document containing the information, provided that the Receiving Party identifies any purported “author” or “recipient” who intends to review “OUTSIDE COUNSEL EYES ONLY” Information or Items, prior to such person reviewing any “OUTSIDE COUNSEL EYES ONLY” Information or Items. After the disclosure of any such person, the Producing Party shall then have three business days to object to disclosure to that person. The Producing Party must identify with specificity the reason for such a challenge, and the burden of demonstrating good cause for the purported “author” or “recipient” to review any “OUTSIDE COUNSEL EYES ONLY” Information or Items shall fall on the Producing Party. The disclosed purported “author” or “recipient” shall not be permitted to review “OUTSIDE COUNSEL EYES ONLY” Information or Items during the three-day objection period or while an objection remains pending. If the parties cannot resolve the dispute over an objection, the Receiving Party may move the Court for an order permitting the identified “author” or “recipient” to review the Information or Items. All persons identified pursuant to this provision shall not be permitted to keep any Protected Material, have been advised of their obligations under this Order, and have signed the “Acknowledgement and Agreement to Be Bound.” (Exhibit A).;
(h) during their depositions, witnesses, and attorneys for witnesses, in the Action to whom disclosure is reasonably necessary. A witness who is shown
documents or information containing Protected Material but who is not otherwise authorized to have access to copies of documents or testimony containing Protected Material shall not retain or copy portions of the transcripts of their depositions or testimony or any documents that contain Protected Material except to the extent necessary for the witness to review, make any changes, and sign the deposition transcript pursuant to Federal Rule of Civil Procedure 30(e). Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material may be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Order; and
(i) any mediator or settlement officer, and their supporting personnel, mutually agreed upon by any of the Parties engaged in settlement discussions
7.4 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 information or item designated “CONFIDENTIAL” only to:
(a) the persons and entities identified in Section 7.2 above; and
(b) and the officers, directors, and employees (including House Counsel) of the Receiving Party or any parent company of Receiving Party to whom disclosure is reasonably necessary for this Action.
7.5 The Parties' Use of Their Own Protected Material. This Order shall have no effect upon, and shall not apply to, the Parties' use or disclosure of their own Protected Material for any purpose.
7.6 Retention of Exhibit A. Outside Counsel of Record for the Party that obtains the signed “Acknowledgment and Agreement to Be Bound” (Exhibit A) by any persons or entities receiving Protected Material shall retain the signed exhibit throughout this Action. If any Designating Party has good cause to believe that another Party has improperly disclosed Protected Material, it may move for an order allowing it to inspect such records.
8. 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”, “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall 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 Protective Order. Such notification shall include a copy of this Confidentiality Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY” before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party's permission. The Designating Party shall bear the burden and expense of seeking protection in that court of its confidential material, and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this Action to disobey a lawful directive from another court.
9. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-Party in this Action and designated as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “OUTSIDE COUNSEL EYES ONLY.” Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to produce a 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) promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party;
(2) promptly provide the Non-Party with a copy of the Confidentiality Protective Order in this Action, the relevant discovery request(s), and a reasonably specific description of the information requested; and
(3) make the information requested available for inspection by the NonParty, if requested.
(c) If the Non-Party fails to seek a protective order from this Court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party's confidential information responsive to the discovery request. If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the Court. Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this Court of its Protected Material.
10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this
Confidentiality Protective Order, 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 Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. In the event the Receiving Party fails to comply with its obligations under Section 10, the Designating Party shall be entitled to seek from the Court specific performance of Section 10.
11. 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 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the parties may incorporate their agreement in a stipulated protective order submitted to the Court.
12. MISCELLANEOUS
12.1 Right to Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future.
12.2 Right to Assert Other Objections. By the entry of this Confidentiality Protective Order, no Party loses any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Protective Order. Similarly, no Party loses any right to object on any ground to use in evidence of any of the material covered by this Protective Order.
12.3 Filing Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. If a Party's request to file Protected Material under seal is denied by the court, then the Receiving Party may file the information in the public record unless otherwise instructed by the court. If a Party wishes to use Protected Material at a hearing, it shall meet and confer with the Designating Party within three court days before the hearing. If the Parties cannot reach a resolution on the appropriate procedures to protect the Protected Material at the hearing, the Party seeking to introduce the Protected Material at the hearing shall not do so prior to informing the Court of the designation, and providing the Designating Party an opportunity to show the Court good cause why the strong presumption of public access in civil cases should be overcome.
12.4 Advice to Clients. This Order shall not bar any attorney in the course of rendering advice to such attorney's client with respect to this Action and, in the course thereof, relying generally on Protected Material; provided, however, that in rendering such advice and otherwise communicating with the client, the attorney shall not disclose the contents of any Protected Material produced by another Party if such disclosure would be contrary to the terms of this Order.
12.5 Duty to Ensure Compliance. Any Receiving Party disclosing Protected Material to any person not a Party as permitted by this Order shall have the duty to reasonably ensure that such person or entity observes the terms of this Order and shall be responsible upon breach of such duty for the failure of such person or entity to observe the terms of this Order.
12.6 Modification and Exceptions. The Parties and any non-Parties may, by stipulation, provide for exceptions to this Order and any Party may seek an order of this Court modifying this Order.
13.FINAL DISPOSITION
After the final disposition of this Action, as defined in Section 4 (DURATION), within 60 days of a written request by the Designating Party, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving 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 appropriate) all the Protected Material that was returned or destroyed; and (2) affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries, or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are not required to destroy (1) data from disaster recovery or business continuity backups, (2) data stored in back-end databases critical to application operability, system-generated temporary folders, and inaccessible nearline storage, (3) archived data with limited end-user accessibility, or (4) filed and draft versions of pleadings, motion papers, other Court filings, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition, hearing and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION).
14. Any violation of this Order may be punished by any and all appropriab measures including, without limitation, contempt proceedings and/or monetar sanctions.
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.
EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I,___, of___[print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Confidentiality Protective Order that was issued by the United States District Court for the Central District of California on July, 2024 in the case of Move, Inc., et al, v. CoStar Group, Inc. et al, U.S. District Court for the Central District of California, Case No. 2:24-cv-05607-SK. I agree to comply with and to be bound by all the terms of this Confidentiality 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 Confidentiality 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 Central District of California for the purpose of enforcing the terms of this Confidentiality Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint___[print or type full name] of___[print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Confidentiality Protective Order.