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Lufthansa Technik AG v. Astronics Advanced Electronic Systems Corp.

United States District Court, W.D. Washington

March 20, 2018

Lufthansa Technik AG, Plaintiff,
v.
Astronics Advanced Electronic Systems Corp., Defendant.

          Bradley S. Keller, WSBA #10665 Keith D. Petrak, WSBA #19159 BYRNES KELLER CROMWELL LLP Lawrence D. Rosenberg, DC Bar #462091 JONES DAY (admitted pro hac vice) David M. Maiorana, OH Bar #0071440 Susan M. Gerber, OH Bar #0070945 JONES DAY Attorneys for Plaintiff Lufthansa Technik AG

          Louis D. Peterson, WSBA #5776 Michael R. Scott, WSBA #12822 HILLIS CLARK MARTIN & PETERSON P.S. Mark A. Chapman ANDREWS KURTH KENYON LLP Attorneys for Defendant KID-Systeme GmbH

          Stuart R. Dunwoody, WSBA #13948 Davis Wright Tremaine LLP James H. Bicks Benjamin M. Daniels Wiggin and Dana LLP Two Stamford Plaza Tresser Boulevard Joseph M. Casino Wiggin and Dana LLP Attorneys for Defendant Astronics Advanced Electronic Systems, Inc.

          ORDER SECOND AMENDED PROTECTIVE ORDER

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE.

         1. PURPOSES AND LIMITATIONS

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

         2. “CONFIDENTIAL MATERIAL” AND “ATTORNEY'S EYES ONLY MATERIAL”

         “Confidential Material” shall include those documents and tangible things that contain business information that is not publicly known, the disclosure of which could cause the producing party to be commercially disadvantaged or prejudiced. “Attorney's Eyes Only Material” shall include highly sensitive business information, including trade secrets and other technical, commercial, financial, personal and business information, the disclosure of which could result in harm that may be significant to the producing party's business and its competitive position, and for which there exists a good-faith claim of protection from disclosure. Confidential Material and Attorney's Eyes Only Material shall be collectively referred to as “Protected Material.”

         3. SCOPE

         The protections conferred by this agreement cover not only Confidential Material and Attorney's Eyes Only Material (as defined above) obtained by the parties from one another, and from third parties or non-parties, 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. However, the protections conferred by this agreement do not cover information that is in the public domain or becomes part of the public domain through trial or otherwise.

         4. ACCESS TO AND USE OF CONFIDENTIAL MATERIAL

         4.1 Basic Principles.

         A receiving party may use Protected Material that is disclosed or produced by another party or by a non-party in connection with this case only for prosecuting, defending, or attempting to settle (1) this litigation, (2) the infringement litigation currently pending in Germany, Civil Law Proceeding No. 7O 289/10, pending before the Mannheim Regional Court, and any appeals there from, as well as potential enforcement proceedings including but not limited to proceedings requesting court fines or requesting affirmations in lieu of oath and proceedings concerning the amount of damages to be paid as well as any other proceedings and procedural remedies relating to the rights of Lufthansa arising out of the German part of European Patent No. EP 881145 with regard to products manufactured and/or sold by AES (the “German Proceedings”), and (3) contemplated proceedings relating to the rights of Lufthansa arising out of any parts or foreign counterparts of European Patent No. EP 881145 being considered for filing in France, Spain, the United Kingdom and/or Japan (the “Contemplated Proceedings”). Protected Material may be disclosed only to the categories of persons and under the conditions described in this agreement. Protected Material must be stored and maintained by a receiving party at a location and in a secure manner that ensures that access to the Protected Material is limited to the persons authorized under this agreement.

         Notwithstanding the foregoing or any other provisions of this Second Amended Protective Order, including without limitation Paragraphs 4.1, 4.2, 4.3, and 11, Protected Material disclosed, produced, or filed by or on behalf of KID-Systeme GmbH (“KID”) in connection with this litigation: (a) shall be used only for purposes of this litigation and for no other purpose; (b) shall not be disclosed or used for any purpose in any other litigation or proceeding, including without limitation the German Proceedings and the Contemplated Proceedings; and (c) shall not be disclosed to any other court, tribunal, counsel, or person in connection with any other litigation or proceeding, including the German Proceedings or the Contemplated Proceedings, unless KID agrees in advance to such disclosure or use.

         4.2 Disclosure of Confidential Material.

         Unless otherwise ordered by the court or permitted in writing by the designating party, a receiving party may disclose any Confidential Material only to:

(a) the receiving party's counsel of record in this action, counsel in the German Proceedings, or counsel involved in the Contemplated Proceedings who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), as well as employees of such counsel to whom it is reasonably necessary to disclose the information for this litigation;
(b) the officers, directors, and employees (including in house counsel) of the receiving party to whom disclosure is reasonably necessary for this litigation;
(c) experts and consultants to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), subject to the provisions of Paragraph 10, below;
(d) the court, court personnel, and court reporters and their staff;
(e) courts in the German Proceedings or Contemplated Proceedings, subject to the provisions of Paragraph 11, below;
(f) copy or imaging services retained by counsel to assist in the duplication of Confidential Material, provided that counsel for the party retaining the copy or imaging service instructs the service not to disclose any Confidential Material to third parties and to immediately return all originals and copies of any Confidential Material;
(g) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Confidential Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this agreement; or
(h) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information.

         4.3 Disclosure of Attorney's ...


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