j2 Global Communications Inc et al v. RingCentral Inc

Filing 47

PROTECTIVE ORDER by Magistrate Judge Andrew J. Wistrich re Stipulation for Protective Order 46 . See document for details. (yb)

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Robert A. Sacks (SBN 150146)
[e-mail]
Brian R. England (SBN 211335)
[e-mail]
Edward E. Johnson (SBN 241065)
[e-mail]
SULLIVAN & CROMWELL LLP
1888 Century Park East
Los Angeles, California 90067-1725
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs j2 Global, Inc.
and Advanced Messaging Technologies, Inc.
Clement S. Roberts (SBN 209203)
[e-mail]
Joseph C. Gratz (SBN 240676)
[e-mail]
Sonali D. Maitra (SBN 254896)
[e-mail]
DURIE TANGRI LLP
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant RingCentral, Inc.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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J2 GLOBAL
COMMUNICATIONS, INC., and
ADVANCED MESSAGING
TECHNOLOGIES, INC.

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Plaintiffs,
v.
RINGCENTRAL, INC.,
Defendant.
_______________________________
AND RELATED CROSS-ACTION

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K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

) Case No. 11-4686-DDP (AJWx)
)
) STIPULATED
PROTECTIVE ORDER
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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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The parties to this action stipulate to, and seek entry of, the following
Protective Order:
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“Confidential” information is information that, in good faith, a party

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believes to contain (a) proprietary or commercially sensitive information which is

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not publicly known and which its owner would not reveal to others except in

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confidence; (b) personal information; or (c) information that should otherwise be

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subject to confidential treatment under the Federal Rules of Civil Procedure. If a

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person producing information under this Order (the “Producing Person”) designates

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information as “Confidential,” the designated information shall be treated as

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Confidential unless successfully challenged under ¶ 11.

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documents, the Producing Person shall, where practical, mark each page containing

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Confidential information as “Confidential.”

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produced in native format may be marked as Confidential by placing such a

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designation in the title of the document.

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2.

When producing

Thus, for example, documents

“Restricted Confidential” information shall be limited to information

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that, in good faith, a party believes to contain (a) current and past (to the extent

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they reflect on current) business planning and financial information; (b) trade

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secrets; (c) past or current company personnel or employee information; (d) source

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code; and (e) information concerning a party’s sales or the design, structure or

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workings of a party’s products or systems which could, if it became known to other

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parties, harm the competitive position of its owner.

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designates information as Restricted Confidential under this Order, the designated

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information shall be treated as Restricted Confidential unless successfully

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challenged under ¶ 11. When producing documents, the Producing Person shall

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mark each page containing Restricted Confidential information as “Restricted

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Confidential.”

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3.

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K ENYON & K ENYON
LLP
PALO ALTO

If a Producing Person

Any Producing Person, whether or not a party to this action, may

designate information as Confidential or Restricted Confidential under this Order.
CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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4.

When a document is designated as Confidential or Restricted

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Confidential, the designation includes not only the document so designated, but

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also any information derived from that document, and any copies, excerpts,

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summaries, or compilations thereof.

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5.

A person or entity receiving information under this Order (the

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“Receiving Person”) shall use Confidential or Restricted Confidential information

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(together, “Protected Information”) only to conduct this litigation and related

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proceedings before the FCC and for no other purpose..

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6.

By receiving information under this Order, all Receiving Persons agree

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to be subject to the jurisdiction of this Court concerning their use of Protected

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Information.

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independent companies engaged by outside litigation counsel to perform litigation

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support service, shall sign an acknowledgment in the form attached hereto as

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Exhibit A, indicating that they have read and understood the terms of this Order and

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agree to submit to the jurisdiction of the Central District of California for

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enforcement of this Order.

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acknowledgments, and will produce the same to the opposing party when so

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ordered by the Court.

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7.

All receiving persons other than attorneys, their staff, and

Counsel for each party shall maintain all original

A Receiving Person may disclose Restricted Confidential information

only to the following:

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a. outside litigation counsel retained by a party in this action or a related

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matter before the FCC., including attorneys, their staff, and independent

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companies engaged by outside litigation counsel to perform litigation

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support services (such as document and graphics vendors);

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b. independent experts or consultants retained by outside litigation

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counsel,

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c. Participants in juror focus groups, provided they sign a confidentiality

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agreement not to use or disclose any such material and that they are not

K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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allowed to retain any notes or other written materials relating to the

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Restricted Confidential Materials;

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d. any person giving testimony in this action at deposition, trial or

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hearing witnesses, but only if the person giving testimony is the creator,

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author or recipient of the Restricted Confidential information, provided

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that such persons may not retain any documents containing Restricted

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Confidential information provided to them at such deposition, trial or

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hearing;

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e. the Court, its personnel and any court reporters and videographers

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involved in taking or transcribing testimony in this action; and

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f. any other person by written agreement of the parties or by order of the

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Court.

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Any person who receives Restricted Confidential information is prohibited from

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prosecuting, preparing, or having any substantive involvement with any patent

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application on behalf of any party to this action relating to e-mail to fax or fax to e-

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mail services, products, systems, or methods for three years after the completion of

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this lawsuit.

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participation in any post grant proceedings before the Patent and Trademark Office.

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8.

For the purpose of clarity, this provision shall NOT prevent

A Receiving Person may disclose Confidential information only to the

following:

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a. persons listed in ¶ 7; and

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b. any person giving testimony in this action at deposition, trial or

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hearing witnesses, but only for purposes of reasonable, material, and

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relevant testimony or preparation of such testimony in the litigation,

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provided that such persons may not retain any documents containing

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Protected Information; and

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c. employees of the Receiving Person to whom disclosure is reasonably

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necessary for the management, supervision, or oversight of the litigation.

K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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9.

Before a Receiving Person can share Protected Information received

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from another party in the litigation with an independent expert or consultant under ¶

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7.b, the Receiving Person shall provide the Producing Person written notice of its

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intention, which shall include the proposed expert’s curriculum vitae, a list of cases

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in which the expert or consultant has submitted a report or given testimony in the

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last five years, as well as a list of any previous or current relationship with any

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party to this action. If the Producing Person objects to the disclosure, it must send a

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written objection, including a detailed explanation of its objection, that is received

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within ten business days after the Producing Person’s receipt of the written notice.

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Absent a timely written objection, the Receiving Person may share Protected

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Information with the independent expert. If the Producing Person makes a timely

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written objection, the Receiving Person shall not share Protected Information with

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the independent expert until the objection is resolved by agreement or by the Court.

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If the parties cannot resolve this dispute, they may proceed under the Local Rules

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addressing discovery disputes, with the Producing Person bearing the burden of

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filing a motion and establishing good cause to support its objection. A producing

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party shall not seek discovery with respect to a consultant or other non-testifying

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expert of a party who has received Protected Information, absent a Court order

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pursuant to a motion made by the producing party. Draft expert reports, expert

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notes and all communications between litigation counsel and experts shall not be

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discoverable in this action.

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10.

If not so designated in the transcript, deposition testimony shall be

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deemed Restricted Confidential until thirty days following the reporter’s

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distribution of the final transcript. During those thirty days, a Producing Person

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may designate portions of the transcript under ¶ 1 or ¶ 2 by sending written

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designations to all parties to this action.

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K ENYON & K ENYON
LLP
PALO ALTO

11.

If a Receiving Person disagrees with a designation of information

under ¶ 1 or ¶ 2, it shall provide the Producing Person written notice of its
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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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challenge. If the parties cannot resolve this dispute, they may proceed under the

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Local Rules addressing discovery disputes, with the Receiving Person bearing the

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burden of filing a motion and showing that the information is Not Confidential or

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Restricted Confidential.

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waive a Receiving Person’s ability to bring a later challenge.

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12.

Failure to challenge a designation immediately does not

Source code designated “Restricted Confidential” and produced in

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electronic form shall be maintained in the sole custody and control of the Producing

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Person and shall be maintained, respectively, at the San Francisco office of lead

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outside counsel for RingCentral (with respect to source code produced by

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RingCentral) and at the Palo Alto office of lead outside counsel for j2 and AMT

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(with respect to source code produced by j2 and/or AMT). The Parties may vary

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the location by mutual agreement. The source code shall be made accessible to

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outside counsel for the Receiving Person and their independent experts or

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consultants who are actively assisting in the litigation during normal business hours

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upon five (5) days advance notice of the review.

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(a)

The Producing Person shall make its source code available in

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electronic form—if it exists in such form -on a stand-alone, i.e., non-

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networked, standard personal computer with Microsoft Windows, Linux or

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some other standard operating system installed in accordance with its

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standard installation processes. In the event that the source code to be

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produced does not exist in electronic form, the Producing Person shall so

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certify in writing and will meet and confer in good faith to make

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arrangements for the mutually-convenient review of such code;

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(b)

The Producing Person shall provide a dedicated, stand-alone

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printer connected to the computer used for source code review, and it shall be

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loaded with paper bearing pre-printed production control numbering. The

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Receiving Person’s outside counsel and/or independent experts or consultants

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may print excerpts of the source code that they in good faith consider to be

K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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relevant to the claim or defense of any party and only to the extent necessary

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to perform his or her responsibilities in connection with the action and no

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more than a maximum of 50 consecutive pages and 500 pages total. If the

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Receiving Person believes that more than 50 consecutive pages, and/or more

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than 500 pages of printouts is necessary, the Receiving Person may request

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permission to print out a specified larger number of pages. In requesting

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permission, the Receiving Person shall provide a written explanation. As an

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example, a particular source code file may be more than 50 pages long, and a

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printout of the entire source code file may be necessary. The Producing

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Person shall consider the Receiving Person’s request in good faith, and shall

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not unreasonably withhold permission. The originals of any printouts shall

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be provided to counsel for the Producing Person on that same day. The

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Producing Person’s counsel shall deliver copies of the printouts to the

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Receiving Person’s outside counsel within two (2) business days. The

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printouts of source code excerpts are to be maintained at all times in a secure

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location at the offices of outside counsel for the Receiving Person and may

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be reviewed by experts, consultants, and outside counsel only at outside

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counsel’s offices. The printouts or any of the information contained in the

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hard copies shall not be converted into an electronic format or further copied,

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without the express consent of the Producing Person, which consent shall not

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be unreasonably withheld.

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(c)

The Receiving Person’s outside counsel and/or independent

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experts or consultants shall be permitted to save, to a file on the hard drive of

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the stand-alone computer used for source code review, excerpts of the

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Producing Person’s source code, and results of searches through the source

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code, for storage or future potential printing. Such file(s) shall be preserved

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by the Producing Person until the conclusion of the Action.

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K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
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(d)

Upon request by the Receiving Person, the Producing Person

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shall work in good faith with the Receiving Person to provide software

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and/or tools used by the Producing Person and their independent experts or

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consultants who are actively assisting in the litigation to work with the source

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code, to the extent lawful and feasible. In the event that the Receiving

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Person’s outside counsel and/or independent experts or consultants requests

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that any source code analytical software be installed on the computer to be

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used for source code review, the Receiving Person’s outside counsel shall

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notify the Producing Person’s counsel and provide a copy of the source code

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analytical software to be installed. The Producing Person shall install such

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source code analytical software within three (3) business days of the

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Receiving Person’s request. Insofar as there is a charge or cost for a license

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to the software and/or tool requested by the Receiving Person, the Receiving

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Person shall be solely responsible for that cost and for obtaining and

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providing a copy to the Producing Person.

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(e)

All source code shall be produced for review in its native

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format. If the source code does not exist in searchable form, the Producing

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Person shall provide a written explanation and will meet and confer in good

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faith to reach a reasonable accommodation for the efficient review of such

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code.;

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(f)

No source code produced pursuant to this Paragraph 12 shall be

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redacted, password protected, deleted, modified or otherwise concealed or

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withheld from review by the Receiving Person’s outside counsel and/or

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independent experts or consultants. Receiving Person’s outside counsel is

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likewise prohibited from modifying, annotating, altering or otherwise

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changing any of the source code produced pursuant to this Paragraph 12.

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13. If a Producing Person inadvertently fails to designate material as

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Protected Information at the time of production, or inadvertently fails to designate

K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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Restricted Confidential material as such, it shall notify all Receiving Persons of its

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failure as soon as possible after discovery. The Producing Person shall promptly

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supply all Receiving Persons with new copies of any documents bearing corrected

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confidentiality designations. When such a designation is made, the Receiving

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Person shall promptly take all necessary steps to ensure that the document or

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information is treated according to its new designation from the date of the notice

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forward.

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14.

Any discovery documents produced in this litigation may be later

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designated as “Attorney Client Privileged” or “Attorney Work Product” promptly

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upon discovery by the Producing Person that any such privileged or immune

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document was produced through inadvertence, mistake, or other error, and no

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waiver of privilege or immunity shall be deemed to have occurred. Upon such

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designation, the Receiving Person promptly shall make best efforts to collect all

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copies of the documents and will return all copies it can locate to the Producing

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Person without regard to any claim of waiver or any other excuse. The Receiving

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Person will also promptly destroy any summaries, work-product or notes on or

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reflecting the Privileged or Work Product information.

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requesting the return of Privileged or Work-Product Material, the Producing Person

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will provide a privilege log for the recalled materials.

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assertion of privilege or work product over the recalled materials must be made on

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the basis of this log and may not be made using copies of the recalled materials

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(which must be returned pursuant to the provisions of this section).

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15.

Within five days of

Any challenge to the

In the event that any Protected Information is used in any proceeding

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in connection with this litigation, it shall not lose its Confidential or Restricted

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Confidential status through such use, and the parties shall take all steps reasonably

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required to protect its confidentiality during such use.

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K ENYON & K ENYON
LLP
PALO ALTO

16.

To the extent that any Confidential or Restricted Confidential

information subject to this Protective Order (or any pleading, motion, or
CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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memorandum referring to them) is proposed to be filed or is filed with the Court,

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those materials and papers, or any portion thereof which discloses Confidential or

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Restricted Confidential information, shall be presented to the judge (by the filing

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party) accompanied by an application to file under seal in accordance with the

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procedures set forth in Local Rule 79-5.1 and shall be marked “CONFIDENTIAL

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INFORMATION FILED UNDER SEAL” on the outside of the sealing envelopes;

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such application shall be directed to the judge to whom the papers are directed.

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Pending a ruling on the application submitted in accordance with Local Rule 79-

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5.1, the papers or portions thereof subject to the application shall be lodged under

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seal. However, only those portions of filings containing Confidential or Restricted

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Confidential information shall be filed under seal. The filing party shall also file

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with the Court for regular filing a redacted version of any filing submitted under

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Local Rule 79-5.1 in which any Confidential and/or Restricted Confidential

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information shall be redacted.

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17.

Nothing in this Order precludes any person from disclosing or using in

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any manner its own information, or information not obtained under this Order, even

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if the same information is also produced under this Order. Likewise, nothing in this

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Order precludes any person from disclosing or using in any manner Confidential or

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Restricted Confidential information which has become publicly available through

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no fault of the Receiving Person.

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18.

Nothing in this Order precludes any person from showing a document

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containing Protected Information to an individual who prepared or received the

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document, or from disclosing Protected Information to a current employee, officer

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or director of the Producing Person.

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19.

No information may be withheld from discovery on the ground that the

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material to be disclosed requires protection greater than that afforded by this

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Protective Order unless the party claiming a need for greater protection moves for

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K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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an order providing such special protection pursuant to Rule 26(c) and Local Rules

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37-1 through 37-4.

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20.

The Parties acknowledge and agree that nothing in this protective

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order is intended to be construed inconsistently with the rights and obligations of

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the Parties under Local Rules 37-1 through 37-4 governing cooperation during

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discovery, and that, in the event of any inconsistency, the procedures defined by the

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Local Rules shall govern. If the Parties wish to file the Joint Stipulation (or

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portions thereof) required by Local Rule 37-2 under seal, the Parties may file a

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separate stipulation to that effect, or the moving party may file an ex parte

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application making the appropriate request. The Parties acknowledge and agree

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that the stipulation or ex parte application must demonstrate good cause as to why

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the Joint Stipulation or portions thereof should be filed under seal.

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21.

Within sixty days of the termination of litigation between the parties,

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all Protected Information shall be destroyed or returned to the Producing Person,

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except that one designated outside litigation counsel of record for each party may

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maintain in its files one copy of each deposition transcript, each document filed

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with the Court, and each correspondence transmitted between outside counsel for

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the parties to this action.

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So ORDERED AND SIGNED this

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2nd day of November, 2012.
/s/

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HON. ANDREW J. WISTRICH
UNITED STATES MAGISTRATE JUDGE

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K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

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EXHIBIT A

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CERTIFICATE OF COMPLIANCE

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I,

(print name), declare as follows:

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I certify that I have received a copy of the Stipulated Protective Order (“Order”) in

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the matter captioned j2 Global Communications, Inc. and Advanced Messaging

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Technologies, Inc. v. RingCentral, Inc., United States District Court for the

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Central District of California, Case No. CV-11-4686 DDP (AJWx), which governs

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the production and use of Protected Information in this case. I have read and

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understand the Order. I hereby acknowledge that I am bound by the Order, and I

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agree to abide by it. I further understand that the Protected Information many only

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be used in strict accordance with the terms of the Order and then only for the

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prosecution and defense of this litigation.

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I further acknowledge that I may be held responsible for any failure on my

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part to comply with the provisions of the Order, and I agree to subject myself to the

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jurisdiction of the United States District Court for the Central District of California,

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for the purpose of enforcing the Order.

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I hereby declare under penalty of perjury that the foregoing is true and
correct.

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(Signature)

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(Print Name)

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K ENYON & K ENYON
LLP
PALO ALTO

CASE NO. CV-11-4686 DDP (AJWX)

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[PROPOSED] STIPULATED
PROTECTIVE ORDER