4829-9413-1987.1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DIVISION OF ILLINOIS

EASTERN DIVISION

MUSIC DEALERS, LLC, )

)

Plaintiff/Counter-Defendant, ) Case No. 12 CV 712

)

v. ) Judge Sharon J. Coleman

)

SIERRA BRAVO CORPORATION, ) Magistrate Judge Rowland

)

Defendant/Counter-Plaintiff. )

AGREED PROTECTIVE ORDER

THIS MATTER having come before the Court on the agreement and joint motion of 

Plaintiff/Counter-Defendant, Music Dealers, LLC (“MDL”) and Defendant/Counter-Plaintiff, 

Sierra Bravo Corporation (“Sierra Bravo”) (individually each “Party” and collectively the

“parties”) for entry of a Protective Order pursuant to Rule 26(c) of the Federal Rules of Civil 

Procedure and LR 26.2(b); the Court having been advised that confidential and proprietary 

information may be disclosed in discovery and at trial of this cause,

IT IS HEREBY ORDERED:

In the course of the proceedings in this action, the parties anticipate that they, or nonparty 

witnesses (the “Producing Party”), shall disclose confidential, technical, strategic, non-public, 

proprietary, or financial information (“Confidential Information”), the disclosure of which will 

result in prejudice to the Producing Party. Accordingly, when Confidential Information is 

produced in this action, the following procedures shall be employed:

1. Confidential Information as used herein means: (i) strategic information, and 

business plans relating to the business of MDL or Sierra Bravo, (ii) financial information relating 

to the business of MDL or Sierra Bravo, and (iii) proprietary, technical information relating to 

the functionality of the software application that is the subject of this dispute, whether that 

information be a document, information contained in a document, information revealed during a 

deposition, information revealed in an interrogatory answer, answers to requests for admission, 

or otherwise. Should any such strategic, technical, non-public, proprietary, financial, or other 

sensitive information be publicly disclosed, MDL or Sierra Bravo would suffer prejudice and be 

at competitive disadvantage in the marketplace.

2. All Confidential Information produced or exchanged pursuant to pretrial 

discovery in this litigation shall be used solely for the purpose of this litigation except by further 

order of the Court and shall be disclosed solely to any Qualified Person as set forth below or as 

otherwise agreed by the parties in writing or by further order of the Court.

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4829-9413-1987.1 2

3. “Qualified Person” as used herein means: (i) Counsel of record for the parties as 

well as employees of their law firms, (ii) Parties to the lawsuit and their employees, (iii) 

Independent experts retained to assist outside counsel and who agree in writing to be bound by 

the terms of this Order; (iv) witnesses during, or in preparation for, deposition or trial testimony; 

(v) any other person agreed upon in writing by the parties hereto; and (vi) the Court, under 

conditions satisfactory to the Court to preserve the parties’ rights to the Confidential Information. 

No third party shall become a Qualified Person until he or she has signed the acknowledgement 

attached hereto as Exhibit A.

4. Transcripts, depositions, exhibits, answers to interrogatories, and other documents 

and things produced by a party or Producing Party pursuant to pretrial discovery may be 

designated as Confidential Information by marking each page “Confidential.” In lieu of marking 

the original, if the original is not produced, the designating party may mark the copies that are 

produced or exchanged, but any other party, by its counsel, shall have the right to examine the 

original, to be provided with a full and complete copy thereof, and to call for production of the 

original at the trial of this action.

5. Confidential Information contained or embodied in a form other than writing, 

such as electronic documents, films, tapes, apparatus, and the like, shall be designated as being 

Confidential by affixing a tag or label to the item or electronic file conspicuously bearing the 

word ”Confidential.”

6. Counsel need not designate specific testimony as Confidential during the course 

of a deposition but may request that the entire contents of the deposition shall be designated 

Confidential and subject to the provisions of this Order. The attorney designating an entire 

deposition Confidential shall have thirty (30) days after receipt of the transcript to designate 

those portions of the testimony deemed Confidential and to inform opposing counsel of such 

designation. The portions of the testimony so designated shall be subject to the provisions of this 

Order. Failure to so designate shall remove the deposition from the provisions of this Order.

7. Confidential Information shall not be disclosed or made available to persons other 

than Qualified Persons or the party who produced the Confidential Information without further 

order of the Court except as otherwise provided in this paragraph. 

8. No person or party may disclose, in public or private, designated material except 

as set forth in this Order, but nothing contained in this Order shall affect the right of any 

designating party to disclose to anyone information it designated as Confidential.

9. Nothing herein shall prevent disclosure of Confidential Information beyond the 

terms of this Order if all parties consent to such disclosure, or, if the Court, after notice to all 

parties, orders such disclosure. Nothing herein shall prevent any counsel of record from utilizing 

Confidential Information in the examination or cross-examination of any person who is alleged 

to be or has claimed to be the author or source of or the recipient of a copy of the Confidential 

Information, irrespective of which party produced such information.

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4829-9413-1987.1 3

10. Unless any item which is subject to the provisions of this Order is designated as 

Confidential in accordance with this Order, the information disclosed by the parties shall not be 

subject to this Order, unless otherwise ordered or stipulated.

11. A party shall not be obligated to challenge the propriety of a Confidential 

Information designation at the time made, and a failure to do so shall not preclude a subsequent 

challenge thereto. In the event that any party to this litigation disagrees at any stage of these 

proceedings with the propriety of a designation by the supplying party of any information as 

Confidential, or should any interested member of the public disagree with the propriety of a 

designation by a supplying party of any information filed under seal, the parties shall first 

attempt to dispose of such dispute in good faith on an informal basis. If the dispute cannot be 

resolved, the objecting party may seek appropriate relief from this Court; provided, however, that 

the party claiming information as Confidential shall have the burden of proving that the 

information is appropriately the subject of protection hereunder.

12. No document may be filed under seal absent an order by the Court granting a 

motion, filed and noticed for hearing prior to the due date of the particular filing, showing good 

cause for sealing that particular document or portion of document. Confidential Materials used 

or submitted to the Court in connection with any filing or proceeding in this litigation shall at all 

times be subject to the provisions of Northern District of Illinois Local Rule 26.2. 

13. The inadvertent or unintentional disclosure by a party producing Confidential 

Information in discovery (a “Producing Party”) of information, documents or things that it 

believes should have been designated as “Confidential,” regardless of whether the information, 

documents or things were so designated at the time of disclosure, shall not be deemed a waiver in 

whole or in part of the party’s claim that the information is confidential, either as to the specific 

information disclosed or as to any other information relating thereto or on the same or related 

subject matter; provided, however, the party must notify the opposing party promptly upon 

discovery of the inadvertent or unintentional failure to designate by giving written notice to the 

opposing party that the information, documents or things are Confidential and should be treated 

in accordance with the provisions of this Protective Order. The opposing party must treat such 

information, documents or things as Confidential from the date such written notice is 

received. Disclosure of such information or material prior to receipt of such notice to persons 

not authorized to receive Confidential materials shall not be deemed a violation of this Protective 

Order; however, those persons to whom disclosure was made must be immediately advised that 

the material disclosed is Confidential, as appropriate, and must be treated in accordance with this 

Protective Order and the Confidential materials must be retrieved from them.

14. If a party through inadvertence produces or provides discovery which it believes 

is subject to a claim of attorney-client privilege or work product immunity, the party may give 

written notice to the opposing party that the document or thing is subject to a claim of attorneyclient privilege or work product immunity and request that the document or thing be returned to 

the party. Upon such request, the opposing party shall return such documents or things, 

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4829-9413-1987.1 4

including all copies. Return of the document by the opposing party shall not constitute an 

admission or concession, or permit any inference, that the returned document or thing is, in fact, 

properly subject to a claim of attorney-client privilege or work product immunity, nor shall it 

foreclose any party from moving the Court for an order that such document or thing has been 

improperly designated or should otherwise be producible.

15. Promptly upon final termination of this action, including appeals and any 

injunctive relief, each party having documents containing Confidential Information or material 

designated as Confidential by another party or nonparty witness shall assemble and return to the 

producing party or destroy, if requested by the producing party, all such documents and 

materials. Nothing in this provision shall require the return of documents that are incorporated 

in, or part of, attorney work-product documents or materials. Destruction of any Confidential 

Information or material shall be confirmed in writing by the party destroying such information or 

materials, and the return of any Confidential Information or material shall be acknowledged by 

the party receiving same. 

16. Third parties and the parties to this litigation may designate information 

Confidential in accordance with this Order. The Confidential designations contained thereon, if 

any, shall have the same force and effect as if those designations were made pursuant to the 

terms of this Order.

17. Each Qualified Person shall have the duty to use reasonable care and precautions 

to ensure observance of this Order.

18. Nothing contained herein shall constitute an admission that Confidential 

Information is Confidential, proprietary, or constitutes a trade secret of the producing party. 

Likewise, it shall not constitute an admission that such Confidential Information is admissible in 

evidence at trial of this action, or otherwise be construed to affect the admissibility of any 

document, material or information at any trial or hearing. Any request for confidentiality, 

closure, or sealing of any hearing or trial must be made to the judge then presiding.

19. The Court may enter such other and further relief as it deems appropriate, and this 

Order is without prejudice to the right of any party to apply for such relief.

20. Nothing in this Order shall be construed to affect the use of any document, 

material, or information at any trial or hearing. A party that intends to present or that anticipates 

that another party may present Confidential information at a hearing or trial shall bring that issue 

to the Court’s and parties’ attention by motion or in a pretrial memorandum without disclosing

the Confidential Information. The Court may thereafter make such orders as are necessary to 

govern the use of such documents or information at trial.

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4829-9413-1987.1 5

One of the attorneys for Plaintiff

MUSIC DEALERS, LLC

One of the attorneys for Defendant

SIERRA BRAVO CORPORATION

/s/ Elvis D. Gonzalez_____________________

Elvis D. Gonzalez

ELVIS GONZALEZ, LTD.

Three First National Plaza

70 West Madison Street, Suite 1515

Chicago, IL 60602

egonzalez@elvisgonzalezltd.com

/s/ Hillard M. Sterling_____________________

Signed with permission

Hillard M. Sterling, Esq.

LEWIS BRISBOIS BISGAARD & SMITH LLP

550 West Adams Street, Suite 300

Chicago, IL 60661

hsterlin@lbbslaw.com

Dated: April 5, 2013

E N T E R:

MARY M. ROWLAND

United States Magistrate Judge

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4829-9413-1987.1 6

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DIVISION OF ILLINOIS

EASTERN DIVISION

MUSIC DEALERS, LLC, )

)

Plaintiff/Counter-Defendant, ) Case No. 12 CV 712

)

v. ) Judge Sharon J. Coleman

)

SIERRA BRAVO CORPORATION, ) Magistrate Judge Nan R. Nolan

)

Defendant/Counter-Plaintiff. )

STATEMENT ACKNOWLEDGING PROTECTIVE ORDER

The undersigned hereby acknowledges receipt of a copy of the RESTRICTING ORDER 

entered in the above case on _________________, 2011, and states that he or she is bound by the 

ORDER.

Dated: ___________________, 20__.

_________________________________

Signature

_________________________________

Printed Name

__________________________________

__________________________________

Address

EXHIBIT A

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