IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC., 

a Michigan corporation, 

Plaintiff, 

 Case No. 2:09-CV-10756 

vs. Hon. Marianne O. Battani 

 

NAVIGATION CATALYST SYSTEMS, INC., 

 a Delaware corporation; BASIC FUSION, INC., 

 a Delaware corporation; CONNEXUS CORP., 

 a Delaware corporation; and FIRSTLOOK, INC., 

 a Delaware corporation, 

Defendants. 

______________________________________________________________________ 

Enrico Schaefer (P43506) 

Brian A. Hall (P70865) 

TRAVERSE LEGAL, PLC 

810 Cottageview Drive, Unit G-20 

Traverse City, MI 49686 

231-932-0411 

enrico.schaefer@traverselegal.com 

brianhall@traverselegal.com 

Lead Attorneys for Plaintiff 

Anthony P. Patti (P43729) 

HOOPER HATHAWAY, PC 

126 South Main Street 

Ann Arbor, MI 48104 

734-662-4426 

apatti@hooperhathaway.com

Attorneys for Plaintiff 

William A. Delgado 

WILLENKEN WILSON LOH & LIEB LLP 

707 Wilshire Boulevard, Suite 3850 

Los Angeles, CA 90017 

(213) 955-9240 

williamdelgado@willenken.com

Lead Counsel for Defendants 

Nicholas J. Stasevich (P41896) 

Benjamin K. Steffans (P69712) 

J. Michael Hutet (P39150) 

BUTZEL LONG, P.C. 

150 West Jefferson, Suite 100 

Detroit, MI 48226 

(313) 225-7000 

stasevich@butzel.com

steffans@butzel.com

huget@butzel.com 

Local Counsel for Defendants 

______________________________________________________________________ 

 

STIPULATED PROTECTIVE ORDER

Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al Doc. 41

Dockets.Justia.com
Page 2 of 14

I. Except as otherwise ordered by this Court, this Stipulated Protective Order 

(hereinafter “Order”) shall apply to all documents produced and all discovery responses 

given or filed in this action both by the parties and by any non-party that produces 

discovery in this case pursuant to discovery demand, subpoena or agreement. For 

purposes of this Order, “document or discovery response” shall include, but not be 

limited to, documents and tangible things, responses to requests for production of 

documents or other things, responses to interrogatories, responses to requests for 

admissions, deposition testimony and exhibits and all copies, extracts, summaries or 

compilations. 

II. Any party or non-party from whom production is sought may designate a 

document or discovery response as CONFIDENTIAL only pursuant to the terms of this 

Order. 

A. CONFIDENTIAL information may include any discovery material 

that the producing party or non-party reasonably believes to be 

“confidential” “trade secret” or “proprietary” as those terms are 

defined under applicable state law. 

B. A document or information contained in a document or discovery 

response given or filed in this case may be designated by stamping 

or otherwise marking (in such manner as will not interfere with the 

legibility of the document) each page of a document containing 

confidential information or, in the case of electronic discovery, in 
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folders with an appropriate notation substantially in the form: 

CONFIDENTIAL. 

1. Any copies or reproductions, excerpts, summaries or other 

documents or media that paraphrase, excerpt or contain 

CONFIDENTIAL information shall also be treated as 

CONFIDENTIAL information pursuant to this Order. 

2. In the event deposition testimony concerns matters that a 

party or non-party deems CONFIDENTIAL, the entity 

seeking such protection may designate that portion of the 

transcript as such (a) during the course of the deposition (in 

which case participation in that portion of the deposition may 

be limited to those persons who are authorized to receive 

such information pursuant to this Order) or (b) by written 

designation made within fifteen (15) days of receipt of the 

relevant transcript. 

3. Regardless of the manner in which deposition designation 

as CONFIDENTIAL is initially made, such written 

designation shall be accomplished by clearly marking on a 

copy of that transcript each portion of the transcript 

containing CONFIDENTIAL information by placing the 

appropriate legend on the page of each portion of the 

transcript to be so designated. The marked transcript shall 
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be served on all parties to this action. In any Court filing or 

written discovery response, a party or non-party shall note 

on the cover page of the document or discovery response, 

that all or a portion of the document or discovery response 

contains CONFIDENTIAL information designated pursuant 

to this Order and shall furnish such information under seal 

pursuant to paragraph II.E. hereof. 

C. Deposition testimony designated as containing CONFIDENTIAL 

information may be so designated in response to a question, prior 

to any responsive testimony being given, or thereafter, regardless 

of whether the non-designating party objects to the designation. 

The objecting party, however, may challenge the designation 

before the Court, either during the deposition or after its conclusion. 

D. It is the responsibility of counsel for each party of this action to take 

reasonable precautions to prevent the unauthorized or inadvertent 

disclosure of any materials containing CONFIDENTIAL information 

obtained from any party or non-party by maintaining the information 

in a secure and appropriate manner. 

E. To the extent that CONFIDENTIAL information is contained in or 

attached to materials filed with the Court, such materials will be 

filed under seal. No one other than the Court, its agents and 

employees, and persons authorized by this Order or any 
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subsequent order of the Court or agreement of the parties, shall 

have access to such sealed materials. 

F. Except with the prior written consent of the party asserting 

confidential treatment or prior order of the Court, any 

CONFIDENTIAL document or discovery response, and the 

information contained therein, may not be disclosed other than in 

accordance with this Order. All persons to whom CONFIDENTIAL 

information is disclosed shall be required to abide by the terms of 

this Order. 

1. CONFIDENTIAL information may be disclosed to those 

officers, directors and employees of any party or producing 

non-party for purposes of participation and preparation of 

any claims or defenses to be asserted in the pending action 

as specified in II.I.

2. CONFIDENTIAL information may be disclosed to (a) expert 

witnesses, (b) consultants, (c) litigation support services, 

including outside copying services, (d) court reporters, (e) or 

companies engaged in the business of supporting 

computerized or electronic litigation discovery or trial 

preparation, engaged by counsel for a party to assist in the 

prosecution or defense of this action, provided that each 

person shall first have read a copy of this Order and 
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manifest his or her intent to assent to its terms by signing a 

copy of the attached “Acknowledgement Regarding The 

Stipulated Protective Order” attached hereto. Each such 

signed Acknowledgement shall be maintained by the party 

providing the CONFIDENTIAL information to that person and 

a copy thereof shall be provided to any party to this action 

and to the producing entity whose CONFIDENTIAL 

information was disclosed pursuant to this paragraph upon 

request. 

3. CONFIDENTIAL information may be disclosed to the Court 

and Court personnel under such safeguards as provided for 

in paragraph II.E. hereof. 

4. CONFIDENTIAL information may be disclosed to non-party 

witnesses and their counsel of record only to the extent that 

such information was written by, or to, such witness, or 

where counsel believes in good faith that the witness knows 

or should know of the existence and content of such 

information. 

5. CONFIDENTIAL information may be disclosed to deposition 

witnesses, including current or former employees, officers or 

directors of a party or non-party, reasonably believed to have 

relevant information regarding the CONFIDENTIAL 
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information. The deponent shall be provided a copy of this 

Protective Order and shall be subject to its terms. 

6. CONFIDENTIAL information may be disclosed to any other 

person as to whom the party or non-party producing the 

information has consented to disclosure in advance and in 

writing, on notice to each party hereto. Such consent shall 

not be unreasonably withheld. 

G. No recipient of CONFIDENTIAL information shall make any copies 

of or notes concerning such information for any purpose 

whatsoever, except in connection with this litigation and solely for 

the purposes of this litigation. 

H. Nothing in this Order shall preclude any party to this lawsuit or its 

counsel: (a) from showing any CONFIDENTIAL document or 

discovery response to an individual who either prepared, authored, 

or received the document or discovery response prior to the filing of 

this action; (b) from disclosing or using, in any manner or for any 

purpose, any information or documents from the party’s own files 

that that party itself has designated as CONFIDENTIAL; or (c) from 

disclosing or using, in any manner or for any purpose, any 

information or documents obtained legally from a source not 

governed by this Order. 
Page 8 of 14

I. A party disclosing CONFIDENTIAL information to a person 

described in paragraph II.F. hereof must first: (i) advise the 

recipient that the information is CONFIDENTIAL and may only be 

used in connection with this or related litigation; (ii) provide the 

recipient with a copy of this Order; and (iii) have that person 

execute the Acknowledgment Regarding The Stipulated Protective 

Order attached hereto. 

J. In the event that a party receiving CONFIDENTIAL or information, 

receives a subpoena or other compulsory process for any such 

CONFIDENTIAL documents or information from any court or local, 

state, or federal government entity, the receiving party shall provide 

notice of the subpoena in writing to the party that produced the 

information within 24 hours of receipt of such process. The notice 

will set forth the information subpoenaed, the person requesting the 

subpoenaed information, and attach a copy of the subpoena or 

other process. The purpose of the notice is to provide an 

opportunity for the party that had produced and designated the 

CONFIDENTIAL information to challenge the subpoena or other 

process. Any such subpoenaed information will not be turned over 

before the expiration of ten (10) days following service of this notice 

or resolution of the judicial challenge to said subpoena or other 

process, whichever is later. 
Page 9 of 14

K. Any party who believes in good faith that they have Confidential 

Information which requires more protection than provided in this 

Order (i.e. should only be available for ‘attorney eyes only’) may 

designate such information as HIGHLY CONFIDENTIAL upon 

disclosure. The disclosing party shall then have ten (10) calendar 

days to bring a motion asking the Court that the documents be 

granted this higher level of protection. Prior to the resolution of the 

motion, HIGHLY CONFIDENTIAL shall only be disclosed to legal 

counsel for the receiving party. In the event that the disclosing 

party fails to bring a motion within 10 days, the documents shall be 

designated CONFIDENTIAL in accordance with this Order. 

III. Any party who wishes to challenge another party’s designation of 

information as CONFIDENTIAL may proceed as follows: 

A. Any party receiving any information or documents that have been 

designated as CONFIDENTIAL may object in writing to such 

designation (and to a non-party if that is the designating entity), and 

identify the desired de-designation by specifying the information or 

material that the challenging party contends was improperly 

designated. The designating party (or any other interested party) 

shall then have ten (10) days to reject the desired de-designation 

by so informing the challenging party, in writing, on notice to all 

parties. (The 10-day period in which to respond is subject to 
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enlargement or extension by either consent of the challenging 

party, such consent not to be unreasonably withheld, or the Court.) 

Absent a timely rejection of the desired de-designation, the 

information shall be deemed to be de-designated in accordance 

with the challenging party’s notice of de-designation. If such 

objection cannot be resolved, in good faith, by agreement, the 

objecting party may file a motion with the Court to determine the 

propriety of the designation. 

B. The objecting party’s motion shall: 

1. certify that he or she has sought in good faith to confer with 

opposing counsel and has been unable to resolve the 

dispute by agreement; 

2. list by document number, deposition page and line number, 

or other appropriate designation of material lacking bates 

numbers, the information that the party claims was 

improperly designated CONFIDENTIAL. 

C. The burden of establishing the factual and legal basis for 

CONFIDENTIAL treatment of any information rests with the party 

requesting such confidentiality. 

D. If such motion is timely made as provided in paragraph III hereto, 

until the motion is ruled upon by the Court, the designation of 

confidentiality shall remain in full force and effect and the 
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information shall continue to be accorded the treatment required by 

this Order. 

E. For any motion brought pursuant to Section III, the Court may 

award attorneys’ fees, costs, or other appropriate sanctions against 

the non-prevailing party if the Court finds that the non-prevailing 

party’s designation or motion seeking de-designation was in bad 

faith. 

IV. Nothing contained in this Order shall affect the right of any party or 

producing entity to make any objection, claim privilege, or otherwise contest any request 

for production of documents, subpoena, interrogatory, request for admission, or 

question at a deposition as permitted by the Federal Rules of Civil Procedure. Nothing 

in this Order shall constitute an admission or waiver, in whole or in part, of any claim, 

privilege, or defense by any party or producing entity. If a producing party or non-party 

inadvertently produces privileged material, upon learning of the inadvertent disclosure, it 

shall promptly so notify in writing those persons to whom it produced that material and 

may seek further relief from the Court. 

V. Any party shall be free to move to modify this Order. 

VI. A failure to challenge the propriety of a designation of confidentiality at the 

time the designation is made shall not preclude or detract from a subsequent challenge 

thereto. 
Page 12 of 14

VII. All materials containing CONFIDENTIAL information that are submitted to 

the Court or used in any pretrial proceeding before this Court shall continue to be 

entitled to the protection provided by this Order. 

VIII. Each person who receives CONFIDENTIAL information hereby agrees to 

subject himself or herself to the jurisdiction of this Court for the purpose of any 

proceedings relating to the performance under, compliance with, or violation of, this 

Order. 

IX. Promptly upon the conclusion of this action, including any appeals, all 

CONFIDENTIAL information of any type, all copies thereof, and all excerpts therefrom 

shall be returned to counsel for the party or non-party producing the documents, or 

destroyed, at the producing entity’s option except that one (1) copy of such information 

may be retained by counsel for archival purposes 

X. After termination of this litigation, the provisions of this Order shall 

continue to be binding, except with respect to those documents and information that 

become a matter of public record. This Court retains and shall have jurisdiction over the 

parties and recipients of CONFIDENTIAL or HIGHLY-CONFIDENTIAL information of 

any type for enforcement of the provisions of this Order following termination of this 

litigation. 

XI. This Order shall have no effect on whether a document or information is 

discoverable. Any agreement of the parties embodied in this Order does not constitute 

an admission or agreement that any document or information designated 

CONFIDENTIAL or HIGHLY-CONFIDENTIAL by a party or non-party: (a) is entitled to 
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any confidentiality; (b) is competent, relevant, or material; (c) is subject to discovery; or 

(d) is admissible as evidence in this case. Designation of any information subject to this 

Order shall have no meaning or effect with respect to the substantive issues in this 

proceeding for the claims or defenses of any party hereto. 

XII. Nothing in this Order shall be construed to prohibit a party to petition the 

Court for a modification of this Order upon noticed motion. 

XII. This Order is binding on the parties immediately upon execution. 

SO STIPLUATED: 

/s/Enrico Schaefer____________ /s/ William A. Delgado _________ 

Enrico Schaefer (P43506) William A. Delgado 

Brian A. Hall (P70865) WILLENKEN WILSON LOH & LIEB LLP 

TRAVERSE LEGAL, PLC 707 Wilshire Boulevard, Suite 3850 

810 Cottageview Drive, Unit G-20 Los Angeles, CA 90017 

Traverse City, MI 49686 (213) 955-9240 

231-932-0411 williamdelgado@willenken.com 

enrico.schaefer@traverselegal.com Lead Counsel for Defendants 

brianhall@traverselegal.com 

Lead Attorneys for Plaintiff 

SO ORDERED: 

 S/Virginia M. Morgan 

 Virginia M. Morgan 

 United States Magistrate Judge 

Dated: February 22, 2010 

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record via the Court’s ECF System and/or U. S. Mail on 

February 22, 2010. 

 s/Jane Johnson 

 Case Manager to 

 Magistrate Judge Virginia M. Morgan