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Bally Gaming, Inc. v. Aristocrat Technologies, Inc.

United States District Court, D. Nevada

March 24, 2017

BALLY GAMING, INC. Plaintiff,
v.
ARISTOCRAT TECHNOLOGIES, INC., VIDEO GAMING TECHNOLOGIES, INC., AND ARISTOCRAT LEISURE LIMITED Defendants.

          For Plaintiff Bally Gaming, Inc. J. RANDALL JONES, SPENCER H. GUNNERSON, KEMP, JONES & COULTHARD, LLP TIMOTHY C. MEECE (pro hac vice) MICHAEL J. HARRIS (pro hac vice) AUDRA C. EIDEM HEINZE (pro hac vice) BANNER & WITCOFF, LTD.

          For Defendants Aristocrat Technologies, Inc., Video Gaming Technologies, Inc. and Aristocrat Leisure Limited: NICHOLAS J. SANTORO SANTORO WHITMIRE, LTD. ROBERT T. HASLAM (pro hac vice) COVINGTON & BURLING LLP GARY M. RUBMAN (pro hac vice) PETER A. SWANSON (pro hac vice) DANIEL W. CHO (pro hac vice) COVINGTON & BURLING LLP

          STIPULATED PROTECTIVE ORDER

         Pursuant to Federal Rule of Civil Procedure 26(c), Plaintiff Bally Gaming, Inc. ("Bally Gaming") and Defendants Aristocrat Technologies, Inc., Video Gaming Technologies, Inc., and Aristocrat Leisure Limited (collectively, "Defendants") (Bally Gaming and Defendants collectively "The Parties" and individually each is a "Party"), by and through their respective counsel, hereby stipulate and agree that discovery in this Civil Action ("Action") may involve the disclosure of certain documents, things, and information that constitute or contain trade secrets, financial records, or other confidential research, development, or commercial information within the meaning of Rule 26(c), which must be protected in order to preserve legitimate business interests. Accordingly, good cause exists for the entry of this Protective Order pursuant to Rule 26(c) to protect against improper disclosure or use of confidential information produced or disclosed in this case. The Parties therefore further stipulate and agree, subject to the approval of the Court, that the terms and conditions of this Protective Order shall govern the handling of documents, depositions, pleadings, exhibits and all other information exchanged by the Parties in this Action, or provided by or obtained from non-parties in this Action.

         SCOPE

         1. This Protective Order shall apply to all documents, electronically stored information, tangible thing, testimony, or other discovery material in this Action, including responses to requests for production of documents, answers to interrogatories, responses to requests for admissions, deposition testimony, expert testimony and reports, exhibits and all other discovery taken pursuant to the Federal Rules of Civil Procedure, matters in evidence and any other information hereafter furnished, directly or indirectly, by or on behalf of any party, non-party or witness in connection with this Action ("Discovery Material").

         2. As used herein, "Producing Party" shall refer to any party to this Action and to any non-party who produces Discovery Material, and "Receiving Party" shall refer to any individual who properly receives or is shown Discovery Material.

         DESIGNATION

         3. A Producing Party may designate Discovery Material as "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" in accordance with this Protective Order if the party in good faith believes that such Discovery Material contains CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY information as defined in Paragraph 4. The burden of establishing that Discovery Material is CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY as defined herein shall be on the Producing Party. The designation of any Discovery Material as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY shall be deemed effective unless and until the Court orders otherwise or the Producing Party withdraws the designation.

         4. CONFIDENTIAL and CONFIDENTIAL-ATTORNEYS' EYES ONLY Discovery Material includes the following:

a. CONFIDENTIAL Discovery Material refers to confidential information that reflects proprietary business information or technical information relating to a trade secret or other confidential research, development, or commercial information.
b. CONFIDENTIAL-ATTORNEYS' EYES ONLY Discovery Material refers to confidential information, the disclosure of which to the other party, non-parties, or the public could cause actual damage to the competitive position of the Producing Party, including, without limitation, information that may be subject to an existing obligation of confidentiality by the Producing Party or its affiliates, financial information (e.g., detailed nonpublic financial information such as information relating to sales, sales volume, profits, account balances, and money transfers), commercial, proprietary, marketing or technical information, as well as competitive information that the Producing Party believes would provide significant technical or business advantage to the Receiving Party, including, without limitation, information that reflects unit selling prices to specific customers, customer lists (actual and/or potential), forecasts, or strategic business plans and marketing plans.

         FORM AND TIMING OF DESIGNATION

         5. Confidential documents shall be so designated by placing or affixing the word "CONFIDENTIAL" or "CONFIDENTIAL-ATTORNEYS' EYES ONLY" on the document in a manner which will not interfere with the legibility of the document and which will permit complete removal of the CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY designation. Documents shall be designated CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY prior to, or contemporaneously with, the production or disclosure of the documents.

         6. Portions of depositions shall be deemed CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY if designated as such when the deposition is taken or within fourteen (14) calendar days after receipt of the transcript. Depositions shall be automatically treated as CONFIDENTIAL-ATTORNEYS' EYES ONLY until fourteen (14) calendar days after receipt of the transcript.

         7. Information from inspection of things and premises shall be deemed CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY if designated as such at the time of the inspection or within fourteen (14) calendar days after the inspection. All information gleaned from inspection of things and premises shall be automatically treated as CONFIDENTIAL-ATTORNEYS' EYES ONLY for fourteen (14) calendar days after the day of inspection.

         8. To the extent that any party wishes to file or submit for filing as part of the Court record any materials subject to this Protective Order, or any pleading, motion or memorandum referring to them, the party wishing to do so shall cause to be filed a motion for leave to file such materials under seal pursuant to the Court's local rules and any other applicable rules governing sealed documents. If a party is filing a document that it has itself designated as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY, then that party shall reference this Protective Order in submitting the document it proposes to maintain under seal. If a non-designating party is filing a document that another party has designated as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY, then the non-designating party shall file the document under seal. A non-designating party may make a written request to have the document unsealed and if the designating party does not agree to the request, within ten (10) calendar days, the non-designating party may file an appropriate motion or application as provided by the Court's procedures that shows good cause to unseal the document.

         USE

         9. Discovery Material designated CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY under this Protective Order may be used only for purposes of this litigation and any appeal therefrom, and shall not be used for any other purpose including, but not limited to, any business, proprietary, commercial, governmental or other legal purpose, including in connection with any other litigation, arbitration or claim. Nothing in this Protective Order precludes a Producing Party from using or disseminating its own CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY information. Nothing herein shall prevent disclosure beyond the terms of this Protective Order if the Producing Party consents in writing to such disclosure, or if the Court, after notice to all affected parties, orders or permits such disclosure.

         10. Discovery Material designated CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY shall be protected from disclosure as specified herein, unless a party obtains an order of the Court declaring that all or certain portions of such Discovery Material are not, in fact, protected and may be disclosed.

         11. Non-parties may designate as CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY transcripts of depositions of their witnesses and any documents or information they produce, whether voluntarily or by subpoena, to the same extent and in the same manner as parties to this Action, and any such Discovery Material shall be treated by parties to this Action in the same manner as materials and information so designated by a party. Non-parties shall have the same rights and obligations under this Protective Order as parties and may move the Court to enforce the provisions of this Protective Order. A non-party's use of this Protective Order to protect its own information does not entitle that third party access to CONFIDENTIAL or CONFIDENTIAL-ATTORNEYS' EYES ONLY Discovery Material produced by any party in this case.

         DISCLOSURE

         12. Unless otherwise directed by the Court or authorized in writing by the Producing Party, Discovery Material designated as CONFIDENTIAL may be disclosed by the Receiving Party only to the following persons:

(a) outside attorneys of record for each party in this Action, including any attorneys employed by firms of record who are representing a party in this Action even if not otherwise identified specifically on pleadings, provided the attorneys are working on this litigation. Support personnel for these outside attorneys (e.g., law clerks, analysts, paralegals, litigation assistants, secretaries and support staff) also are allowed access under this provision.;
(b) subject to the disclosure requirements set forth in Paragraph 14 below, two (2) designated in-house counsel for each party who is assisting in the conduct of this Action, and support personnel for the in-house counsel, such as law clerks, analysts, paralegals, litigation assistants, secretaries and support staff, provided the in-house counsel does not actively ...

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