Enfish LLC v. Microsoft Corporation et al

Filing 107

PROTECTIVE ORDER by Judge Mariana R. Pfaelzer. Refer to document for details of the Court's order. 106 (pso)

1
2
3
4
5
6
7
8
9
10
11
12
13
14

Tom Friel (SBN 80065)
[e-mail]
COOLEY LLP
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone: [phone]
Facsimile: [phone]

Chad S. Campbell (SBN 258723)
[e-mail]
PERKINS COIE LLP
2901 North Central Avenue, Suite 2000
Phoenix, AZ 85012-2788
Telephone: [phone]
Facsimile: [phone]

Jim Brogan (SBN 155906)
[e-mail]
Orion Armon (pro hac vice)
[e-mail]
Sarah Guske (SBN 232467)
[e-mail]
Peter Sauer (pro hac vice)
[e-mail]
COOLEY LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021
Telephone: [phone]
Facsimile: [phone]

Lauren Sliger (SBN 213880)
[e-mail]
PERKINS COIE LLP
1888 Century Park East, Suite 1700
Los Angeles, CA 90067-1721
Telephone: [phone]
Facsimile: [phone]
Amy E. Simpson (SBN 241090)
[e-mail]
PERKINS COIE LLP
11988 El Camino Real, Suite 200
San Diego, CA 92130-3579
Telephone: [phone]
Facsimile: [phone]

Attorneys for Plaintiff
ENFISH, LLC

Attorneys for Defendants
MICROSOFT CORPORATION,
FISERV, INC., INTUIT INC., and
JACK HENRY & ASSOCIATES, INC.

(Continued on next page)

15
16
17
18
19
20
21
22
23

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
Case No. CV12-7360 MRP
(MRWx)

ENFISH, LLC,
Plaintiff,

STIPULATED PROTECTIVE ORDER

v.
MICROSOFT CORPORATION;
FISERV, INC.; INTUIT INC.; SAGE
SOFTWARE, INC.; and JACK
HENRY & ASSOCIATES, INC.,
Defendants.

24
25

AND RELATED COUNTERCLAIMS.

26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

1.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

Amanda Tessar
[e-mail]
PERKINS COIE LLP
1900 Sixteenth Street, Suite 1400
Denver, CO 80202-5255
Telephone: [phone]
Facsimile: [phone]

2
3
4
5

Attorneys for Defendants
MICROSOFT CORPORATION,
FISERV, INC., INTUIT INC., and
JACK HENRY & ASSOCIATES, INC.

6
7

William J. Brown, Jr.
[e-mail]
Janet Suejean Park
[e-mail]
BROWN, WEGNER & BERLINER
LLP
2603 Main Street, Suite 1050
Irvine, CA 92614-6232
Telephone: [phone]

8
9
10
11
12
13

Attorneys for Defendant
SAGE SOFTWARE, INC.

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

2.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

I.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this Litigation are likely to involve

2
3

production of confidential, proprietary, or private information for which special

4

protection from public disclosure and from use for any purpose other than

5

prosecuting this Litigation would be warranted. Accordingly, the parties hereby

6

stipulate to and petition the court to enter the following Stipulated Protective Order.

7

This Order does not confer blanket protections on all disclosures or responses to

8

discovery, and the protection it affords extends only to the limited information or

9

items that are entitled under the applicable legal principles to treatment as

10

confidential.

11

II.

12

DEFINITIONS
1.

This Litigation or the Litigation: Case Number CV12-7360 MRP

13

(MRWx), for so long as the case may be pending in the United States District Court

14

for the Central District of California or any appellate court, regardless of whether

15

any individual parties to the case settle or are dismissed, and any case that is

16

consolidated with or arises from the aforementioned case. This definition is the

17

same for and shall be identically construed as to all past, present, or future parties to

18

the case.

19

2.

Party: any party to this Litigation.

20

3.

Disclosure or Discovery Material: all items or information, regardless

21

of the medium or manner generated, stored, or maintained (including, among other

22

things, testimony, transcripts, or tangible things) that are produced or generated in

23

disclosures or responses to discovery in this matter.

24

4.

“CONFIDENTIAL” Information or Items: information (regardless of

25

how generated, stored or maintained) or tangible things that qualify for protection

26

under standards developed under Fed. R. Civ. P. 26(c).

27
28

5.

“HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY”

Information or Items: extremely sensitive “CONFIDENTIAL” Information or Items

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

3.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

whose disclosure to another Party or non-Party would create a substantial risk of

2

serious injury that could not be avoided by less restrictive means.

3

6.

“HIGHLY CONFIDENTIAL – SOURCE CODE”: extremely sensitive

4

Confidential Information or Items representing computer code and associated

5

comments and revision histories, the disclosure of which to another Party or non-

6

Party would create a substantial risk of serious harm that could not be avoided by

7

less restrictive means.

8
9
10
11
12

7.

Receiving Party: a Party that receives Disclosure or Discovery

Material from a Producing Party.
8.

Producing Party: a Party or non-Party that produces Disclosure or

Discovery Materials in this Litigation.
9.

Designating Party: a Party or non-Party that designates Disclosure or

13

Discovery Materials produced in this Litigation as “CONFIDENTIAL,” “HIGHLY

14

CONFIDENTIAL – COUNSELS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL

15

– SOURCE CODE.”

16

10.

Protected Material: any Disclosure or Discovery Material that is

17

designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – COUNSELS’

18

EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE,” as well as all

19

copies, excerpts, summaries, or compilations thereof. Public documents or publicly

20

available information may not be designated as Protected Material.

21

11.

Outside Counsel: attorneys who are not employees of a Party but who

22

are retained to represent or advise a Party in this Litigation, as well as their

23

employed paralegals, secretaries, and other administrative support staff.

24
25
26
27
28

12.

In-house Counsel: attorneys who are employees of a Party, as well as

their employed paralegals, secretaries, and other administrative support staff.
13.

Counsel (without qualifier): Outside Counsel and In-house Counsel (as

well as their support staffs).
14.

Expert: a person with specialized knowledge or experience in a matter

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

4.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

pertinent to the Litigation who has been retained by a Party or its counsel to serve

2

as an expert witness or as a consultant in this Litigation.

3

15.

Professional Vendors: persons or entities that provide litigation

4

support services (e.g., photocopying; videotaping; translating; preparing exhibits or

5

demonstrations; organizing, storing, retrieving data in any form or medium; etc.)

6

and their employees and subcontractors. This definition includes a professional

7

jury or trial consultant retained in connection with this Litigation.

8
9

16.

Final Disposition: the date of the final, legal conclusion of this

Litigation with respect to all Parties thereto, whether by entry of a final, non-

10

appealable judgment, by voluntary dismissal(s), or by settlement(s). The Final

11

Disposition shall be the same date for all Parties, regardless of whether the

12

Litigation is legally concluded as to an individual Party on an earlier date.

13

III.

SCOPE

14

The protections conferred by this Order cover not only Protected Material (as

15

defined above), but also any information copied, excerpted, or extracted therefrom,

16

as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,

17

conversations, or presentations by Parties or Counsel to or in court or in other

18

settings that might reveal Protected Material.

19

IV.

DURATION

20

Even after the Final Disposition in this Litigation, the confidentiality

21

obligations imposed by this Order shall remain in effect until a Designating Party

22

agrees otherwise in writing or a court order otherwise directs.

23

V.

24

DESIGNATING PROTECTED MATERIAL
1.

Manner and Timing of Designations. Except as otherwise provided in

25

this Order, or as otherwise stipulated or ordered, material that qualifies for

26

protection under this Order must be clearly so designated before the material is

27

disclosed or produced.

28

Designation in conformity with this Order requires:

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

5.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

(a)

for information in documentary form (e.g., paper or electronic

2

documents, but excluding transcripts of depositions or other pretrial or trial

3

proceedings), that the Producing Party affix the legend “CONFIDENTIAL,”

4

“HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY,” or “HIGHLY

5

CONFIDENTIAL – SOURCE CODE” at the top or bottom of each page that

6

contains Protected Material.

7

A Party or non-Party that makes original documents or materials

8

available for inspection need not designate them for protection until after the

9

inspecting Party has indicated which material it would like copied and produced.

10

During the inspection and before the designation, all of the material made available

11

for inspection shall be deemed “HIGHLY CONFIDENTIAL – COUNSELS’ EYES

12

ONLY,” unless it includes Source Code, in which case it will be governed by

13

Section VIII below. After the inspecting Party has identified the documents it

14

wants copied and produced, the Producing Party must determine which documents

15

qualify for protection under this Order, then, before producing the specified

16

documents, the Producing Party must affix the appropriate legend

17

(“CONFIDENTIAL”, “HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY”

18

or “HIGHLY CONFIDENTIAL – SOURCE CODE”) at the top or bottom of each

19

page that contains Protected Material.

20

(b)

for testimony given in deposition or in other pretrial or trial

21

proceedings, Parties or non-Parties providing testimony may designate deposition

22

transcripts, or portions thereof, as Protected Material by indicating the appropriate

23

designation on the record before the close of the deposition, hearing, or other

24

proceeding, or by notifying the court reporter and all counsel in writing of the

25

appropriate designation within fourteen (14) business days after receiving the

26

transcript, during which fourteen (14) day period the deposition transcript shall be

27

treated as HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY.

28

Transcripts containing Protected Material shall have an obvious legend

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

6.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

on the title page that the transcript contains Protected Material, and the title page

2

shall be followed by a list of all pages (including line numbers as appropriate) that

3

have been designated as Protected Material and the level of protection being

4

asserted by the Designating Party. The Designating Party shall inform the court

5

reporter of these requirements. Any transcript that is prepared before the expiration

6

of a 14-day period for designation shall be treated during that period as if it had

7

been designated “HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY” in its

8

entirety unless otherwise agreed. After the expiration of that period, the transcript

9

shall be treated only as actually designated.

10

(c)

for information produced in some form other than documentary

11

and for any other tangible items, that the Producing Party must either affix in a

12

prominent place on the exterior of the container or containers or media in which the

13

information or item is stored and/or produced the legend “CONFIDENTIAL,”

14

“HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY” or “HIGHLY

15

CONFIDENTIAL – SOURCE CODE” or, if that is not practicable, use other

16

reasonable efforts to communicate the designation to the Receiving Party, in

17

writing.

18

(d)

for information or items produced by non-parties (e.g.,

19

documents obtained by third-party subpoenas), the non-Party shall determine in

20

accordance with this Protective Order whether the information should be designated

21

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY”

22

or “HIGHLY CONFIDENTIAL – SOURCE CODE.” Such information disclosed

23

by any non-Party will be given the same protection as information disclosed by any

24

Party to this Litigation, and will be subject to the same procedures as those

25

governing disclosure of the Parties’ “CONFIDENTIAL,” “HIGHLY

26

CONFIDENTIAL – COUNSELS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

27

– SOURCE CODE” information pursuant to this Protective Order.

28

2.

Inadvertent Failures to Designate. A Designating Party that

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

7.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

inadvertently fails to mark information or items as “CONFIDENTIAL,” “HIGHLY

2

CONFIDENTIAL – COUNSELS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

3

– SOURCE CODE” at the time of production shall be allowed to correct such

4

failure at any time. In that event, the Designating Party shall provide notice in

5

writing to all Receiving Parties, accompanied, as necessary, by appropriately

6

marked substitute copies of such information or items. Upon receipt of such notice,

7

a Receiving Party will take appropriate steps to assure that the previously unmarked

8

information or items are treated as Protected Material in accordance with the

9

provisions of this Order, including retrieving and returning or destroying all

10

previously unmarked or mismarked copies of the information or items. To the

11

extent the Receiving Party has already disclosed such information, such disclosure

12

shall not be a violation of this Protective Order, but the Receiving Party shall

13

promptly collect any copies of disclosed material that have been provided to

14

individuals other than those authorized under this Protective Order, and shall

15

destroy or return them to the Producing Party.

16

3.

De-Designating Material for Protection. If it comes to a Designating

17

Party’s attention that information or items that it designated for protection do not

18

qualify for protection, in whole or in part, that Party or non-Party must promptly

19

notify all other parties that it is withdrawing the mistaken designation.

20

VI.

21

CHALLENGING CONFIDENTIALITY DESIGNATIONS
1.

Timing of Challenges. Unless a prompt challenge to a Designating

22

Party’s confidentiality designation is necessary to avoid foreseeable substantial

23

unfairness, unnecessary economic burdens, or a later significant disruption or delay

24

of the Litigation, a Party does not waive its right to challenge a confidentiality

25

designation by not mounting a challenge promptly after the original designation is

26

disclosed.

27
28

2.

Meet and Confer. The party challenging a designation shall initiate the

dispute resolution process by providing written notice of each designation it is

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

8.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

challenging and describing the basis for each challenge. To avoid ambiguity as to

2

whether a challenge has been made, the written notice must recite that the challenge

3

to confidentiality is being made in accordance with this specific paragraph of the

4

Protective Order. The parties shall attempt to resolve each challenge in good faith

5

and must begin the process by conferring directly (in voice to voice dialogue; other

6

forms of communication are not sufficient) within 10 days of the date of service of

7

notice. In conferring, the Challenging Party must explain the basis for its belief that

8

the confidentiality designation was not proper and must give the Designating Party

9

an opportunity to review the designated material, to reconsider the circumstances,

10

and, if no change in designation is offered, to explain the basis for the chosen

11

designation. A Challenging Party may proceed to the next stage of the challenge

12

process only if it has engaged in this meet and confer process first or establishes

13

that the Designating Party is unwilling to participate in the meet and confer process

14

in a timely manner.

15

3.

Judicial Intervention. If the parties’ dispute is not resolved through the

16

meet-and-confer process, the challenging Party may, following the procedures set

17

forth in Local Rule 37, file a motion that identifies the challenged material and sets

18

forth in detail the basis for the challenge that was given by the Designating Party in

19

the meet and confer dialogue. The burden of persuasion in any such challenge

20

proceeding shall be on the Designating Party. Until the Court rules on the

21

challenge, all parties shall continue to afford the material in question the level of

22

protection to which it is entitled under the Designating Party’s designation. The

23

parties shall attempt in good faith to combine as many disputed issues as possible

24

when bringing a motion under this Section.

25

VII. ACCESS TO AND USE OF PROTECTED MATERIAL

26

1.

Basic Principles. A Receiving Party may use Protected Material that is

27

disclosed or produced by another Party or by a non-Party in connection with this

28

Litigation only for prosecuting, defending, or attempting to settle this Litigation. A

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

9.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

Receiving Party may not use Protected Material for any business, commercial, or

2

competitive purpose, or during the course of any other case, litigation, or

3

proceeding. Such Protected Material may be disclosed only to the categories of

4

persons and under the conditions described in this Order. When the Final

5

Disposition of the Litigation has occurred, a Receiving Party must comply with the

6

provisions of Section XIV below.

7

2.

Protected Material must be stored and maintained by a Receiving Party

8

at a location and in a secure manner that ensures that access is limited to the

9

persons authorized under this Order.

10

3.

Disclosure of “CONFIDENTIAL” Information or Items. Unless

11

otherwise ordered by the Court or permitted in writing by the Designating Party, a

12

Receiving Party may disclose any information or item designated

13

CONFIDENTIAL only to:

14

(a)

Outside Counsel in this Litigation, as well as employees of said

15

counsel to whom it is reasonably necessary to disclose the information for this

16

Litigation;

17

(b)

Two (2) employees for each Party who have first signed the

18

“Acknowledgment and Agreement of Confidentiality” (Exhibit A) and to whom the

19

Receiving Party concludes disclosure is reasonably necessary for this Litigation.

20

Notwithstanding the foregoing, no In-house Counsel or employee of a given

21

Defendant shall have access to the Protected Material of any other Defendant

22

without the written consent of the producing Defendant;

23

(c)

Up to five (5) designated In-house Counsel of the Receiving

24

Party and their employee support staff to whom the Receiving Party concludes

25

disclosure is reasonably necessary for this Litigation who have signed the

26

“Acknowledgment and Agreement of Confidentiality” (Exhibit A).

27

Notwithstanding the foregoing, no In-house Counsel or employee of a given

28

Defendant shall have access to the Protected Material of any other Defendant

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

10.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1
2

without the written consent of the producing Defendant;
(d)

Experts (1) who have been retained for the purposes of this

3

Litigation; (2) to whom the Receiving Party concludes disclosure is reasonably

4

necessary for this Litigation; (3) who have signed the “Acknowledgement and

5

Agreement of Confidentiality” (Exhibit A); and (4) as to whom the procedures set

6

forth in Section VII.7, below, have been followed;

7
8
9

(e)

The Court and its personnel (and any mediator or technical

advisor appointed by the Court);
(f)

Court reporters and their staffs, to whom the Receiving Party

10

concludes disclosure is reasonably necessary for this Litigation, and for court

11

reporters and their staff that are not employed by the Court, they must first sign the

12

“Acknowledgment and Agreement of Confidentiality” (Exhibit A);

13

(g)

Professional Vendors to whom the Receiving Party concludes

14

disclosure is reasonably necessary for this Litigation and who have first signed the

15

“Acknowledgment and Agreement of Confidentiality” (Exhibit A);

16

(h)

Any persons who are witnesses during a deposition, court

17

hearing, or trial where specific documentary or testimonial evidence establishes on

18

the record that the witness has seen the Protected Material before or that the

19

Protected Material is otherwise known to the witness without any violation of any

20

confidentiality obligation owed to any Party in this Litigation, including, but not

21

limited to, where the person is identified in a Designating Party’s document or in

22

deposition testimony of a Designating Party’s employee as a person who already

23

has knowledge of the information contained in the document; and

24

(i)

Mock jurors hired by trial consultants in connection with this

25

litigation, who may only be told about or shown CONFIDENTIAL documents

26

provided: (1) they are not affiliated with any party to this case or their direct

27

competitors; (2) they agree in writing to be bound by confidentiality; and (3) they

28

are not themselves given custody of any documents, nor permitted to remove any

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

11.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

presentations, questionnaires, or notes taken during the exercise from any room in

2

which the research is conducted.

3

4.

Disclosure of “HIGHLY CONFIDENTIAL – COUNSELS’ EYES

4

ONLY” Information or Items. Unless otherwise ordered by the Court or permitted

5

in writing by the Designating Party, a Receiving Party may disclose any

6

information or item designated “HIGHLY CONFIDENTIAL – COUNSELS’

7

EYES ONLY” only to:

8
9
10
11

(a)

Outside Counsel in this Litigation, as well as employees of said

counsel to whom it is reasonably necessary to disclose the information for this
Litigation;
(b)

Up to five (5) designated In-house Counsel of the Receiving

12

Party and their support staff to whom the Receiving Party concludes disclosure is

13

reasonably necessary for this Litigation who have signed the “Acknowledgment

14

and Agreement of Confidentiality” (Exhibit A). Notwithstanding the foregoing, no

15

In-house Counsel or employee of a given Defendant shall have access to the

16

Protected Material of any other Defendant without the written consent of the

17

producing Defendant;

18

(c)

Experts (1) who have been retained for the purposes of this

19

Litigation; (2) to whom the Receiving Party concludes disclosure is reasonably

20

necessary for this Litigation, (3) who have signed the “Acknowledgement and

21

Agreement of Confidentiality” (Exhibit A), and (4) as to whom the procedures set

22

forth in Section VII.7, below, have been followed;

23
24
25

(d)

The Court and its personnel (and any mediator or technical

advisor appointed by the Court);
(e)

Court reporters and their staffs, to whom the Receiving Party

26

concludes disclosure is reasonably necessary for this Litigation, and for court

27

reporters and their staff that are not employed by the Court, they must first sign the

28

“Acknowledgment and Agreement of Confidentiality” (Exhibit A);

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

12.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

(f)

Professional Vendors to whom the Receiving Party concludes

2

disclosure is reasonably necessary for this Litigation and who have first signed the

3

“Acknowledgment and Agreement of Confidentiality” (Exhibit A);

4

(g)

Mock jurors hired by trial consultants in connection with this

5

litigation may only be told about or shown HIGHLY CONFIDENTIAL –

6

COUNSELS’ EYES ONLY documents provided: (1) they are not affiliated with

7

any party to this case or their direct competitor; (2) they agree in writing to be

8

bound by confidentiality; and (3) they are not themselves given custody of any

9

documents, nor permitted to remove any presentations, questionnaires or notes

10

taken during the exercise from any room in which the research is conducted.

11

Parties may not show mock jurors any HIGHLY CONFIDENTIAL – SOURCE

12

CODE documents; and

13

(h)

Any persons who are witnesses during a deposition, court

14

hearing, or trial where specific documentary or testimonial evidence establishes on

15

the record that the witness has seen the Protected Material before or that the

16

Protected Material is otherwise known to the witness without any violation of any

17

confidentiality obligation owed to any Party in this Litigation, including, but not

18

limited to, where the person is identified in a Designating Party’s document or in

19

deposition testimony of a Designating Party’s employee as a person who already

20

has knowledge of the information contained in the document.

21

5.

Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE”

22

Information or Items. Unless otherwise ordered by the Court or permitted in

23

writing by the Designating Party, a Receiving Party may disclose any information

24

or item designated “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:

25

(a)

Outside Counsel in this Litigation, as well as employees of said

26

counsel to whom it is reasonably necessary to disclose the information for this

27

Litigation;

28

(b)

Experts (1) who have been retained for the purposes of this

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

13.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

Litigation; (2) to whom the Receiving Party concludes disclosure is reasonably

2

necessary for this Litigation, (3) who have signed the “Acknowledgement and

3

Agreement of Confidentiality” (Exhibit A), and (4) as to whom the procedures set

4

forth in Section VII.7, below, have been followed;

5
6

(c)

The Court and its personnel (and any mediator or technical

advisor appointed by the Court);

7

(d)

Court reporters and their staffs, to whom the Receiving Party

8

concludes disclosure is reasonably necessary for this Litigation, and for court

9

reporters and their staff that are not employed by the Court, they must first sign the

10

“Acknowledgment and Agreement of Confidentiality” (Exhibit A); and

11

(e)

Any persons who are witnesses during a deposition, court

12

hearing, or trial where specific documentary or testimonial evidence establishes on

13

the record that the witness has seen the Protected Material before or that the

14

Protected Material is otherwise known to the witness without any violation of any

15

confidentiality obligation owed to any Party in this Litigation, including, but not

16

limited to, where the person is identified in a Designating Party’s document or in

17

deposition testimony of a Designating Party’s employee as a person who already

18

has knowledge of the information contained in the document.

19

6.

For the avoidance of doubt, no employee of a Party, including In-

20

House Counsel, may review any “HIGHLY CONFIDENTIAL – SOURCE CODE”

21

produced by another Party.

22

7.

Procedures for Approving Disclosure of “CONFIDENTIAL,”

23

“HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY,” and “HIGHLY

24

CONFIDENTIAL – SOURCE CODE” Information or Items to Experts

25

(a)

Unless otherwise ordered by the Court or agreed in writing by

26

the Designating Party, a Receiving Party that seeks to disclose to an Expert any

27

information or items that have been designated “CONFIDENTIAL,” “HIGHLY

28

CONFIDENTIAL – COUNSELS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

14.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

– SOURCE CODE” first must make a written request to the Designating Party that

2

(1) sets forth the full name and professional address and/or affiliation of the

3

proposed expert or consultant and the city and state of his or her primary residence,

4

(2) includes an up-to-date curriculum vitae identifying all present and prior

5

employments or consultancies from which the expert or consultant has received

6

compensation for work in his or her areas of expertise or to whom the expert has

7

provided professional services in the last seven years, (3) identifies each company

8

with which the Expert has a formal or informal agreement to provide professional

9

services in the future, (4) identifies (by name and number of the case, filing date,

10

and location of court) any litigation in connection with which the Expert has

11

provided any professional services during the preceding five years, with an

12

identification of which party that the Expert provided those services, (5) indicates

13

whether the Expert will have access to “HIGHLY CONFIDENTIAL – SOURCE

14

CODE,” and (6) attaches the Expert’s execution of the “Acknowledgement and

15

Agreement of Confidentiality” that is attached hereto as Exhibit A.

16

(b)

A Party that makes a request and provides the information

17

specified in the preceding paragraph may disclose the subject Protected Material to

18

the identified Expert unless, within seven (7) calendar days of delivering the

19

request, the Party receives a written objection from the Designating Party. Any

20

such objection must set forth in detail the grounds on which it is based.

21

(c)

A Party that makes a timely written objection must meet and

22

confer with the Receiving Party to try to resolve the matter by agreement within ten

23

(10) business days of making the objection. If no agreement is reached, the Party

24

seeking to make the disclosure to the Expert may file a motion for leave to provide

25

Protected Materials to the Expert with the Court, following the procedures set forth

26

in Local Rule 37. Until the Court rules on any such motion, the Protected Material

27

shall not be disclosed to the Expert, unless the objecting Party consents in writing.

28

The Designating Party shall bear the burden of showing why disclosure to the

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

15.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

Expert should be precluded.

2

VIII. PROCEDURES FOR DISCLOSURE OF HIGHLY CONFIDENTIAL
SOURCE CODE

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1.

Nothing in this Protective Order shall be deemed to be a conclusion or

order with respect to the question of what Source Code, if any, that a Party must
make available for review. Each Party reserves the right to object to any request for
Source Code, including without limitation, objections based on burden or
relevance. To the extent that any Party makes Source Code available for review,
the terms herein shall govern.
2.

Each party shall make a single electronic copy of relevant and

responsive “HIGHLY CONFIDENTIAL – SOURCE CODE” available for
inspection by the opposing party’s outside counsel and any other person qualified to
access the Source Code under the Protective Order, subject to the following
provisions:
(a)

All Source Code produced for inspection pursuant to these

provisions shall be made available at one office of Outside Counsel for the
Producing Party, or another mutually agreed upon location, or as otherwise ordered
by the Court.
(b)

Each Producing Party shall make source code available for

inspection by authorized persons through the fact discovery period and until expert
discovery (including depositions) concludes.
(c)

Once a Producing Party has confirmed that source code is

available for review, any single reviewing session shall be conducted during regular
business hours (9:00 A.M. to 5:00 P.M. local time, Monday-Friday, excluding
holidays) on five (5) business days’ written notice, or on such other dates as may be
mutually agreed. Such notice shall identify all persons who will review the
Producing Party’s Source Code during the reviewing session, who may be required
to provide photo identification before any review session.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

16.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

(d)

All Source Code produced for inspection pursuant to these

2

provisions shall be made available in a private, secure room on a secured, stand-

3

alone computer without Internet access or network access to other computers, or

4

shall be made available in another form mutually agreed upon by the parties.

5

Multiple defendants shall not make their Source Code available on the same

6

secured computer. All secured computers to be used during any single reviewing

7

session shall be located in the same private, secure room.

8
9
10

(e)

The Source Code review may be supervised at the Producing

Party’s discretion, so long as the supervision is done in a way that does not interfere
with the Receiving Party’s ability to review the Source Code.

11

(f)

No recordable media or recordable devices shall be permitted

12

into the Source Code review room, including without limitation sound recorders,

13

computers, peripheral equipment, cell phones, cameras, CDs, DVDs, or drives any

14

kind.

15

(g)

The Producing Party will provide source code for review on a

16

computer of similar quality, and with similar technical specifications, to the

17

computers used by professionals who work in the hosting location.

18

(h)

The Receiving Party may request that commercially available

19

software tools for viewing and searching Source Code be installed on the review

20

computer, provided, however that such software tools are reasonably necessary for

21

the Receiving Party to perform its review of the Source Code consistent with all of

22

the protections herein. The Receiving Party must provide the Producing Party with

23

a CD or DVD containing such licensed software tool(s) at least two weeks in

24

advance of the date on which the Receiving Party wishes to have the additional

25

software tools available for use on the Source Code computer. The Producing Party

26

shall make reasonable efforts to ensure that the software is installed and will notify

27

the Receiving Party if any technical difficulties are encountered. The Producing

28

Party shall notify the Receiving Party of any objections to such software tools being

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

17.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

installed. The Source Code may not be compiled by the Receiving Party.

2

(i)

The Receiving Party may print-out a reasonable number of

3

pages of Source Code on pre-labeled pages provided by the Producing Party. The

4

Receiving Party may not leave the review room with any such pages. The

5

Receiving Party will only print portions of the Source Code that are reasonably

6

necessary to facilitate the Receiving Party’s preparation of the case, including (1)

7

when reasonably necessary to prepare any filing with the Court or to serve any

8

pleadings or other papers on any other party, (2) to prepare internal attorney work

9

product materials, or (3) to prepare other necessary case materials such as testifying

10

expert reports, consulting expert written analyses, and related drafts and

11

correspondences.

12

(j)

The Producing Party shall have five business days to review any

13

printouts and, absent any objection, produce the printouts. The Producing Party

14

may challenge any request for printouts pursuant to the dispute resolution procedure

15

set forth in Paragraph VI, whereby the Producing Party is the “Challenging Party”

16

and the Receiving Party is the “Designating Party” for purposes of dispute

17

resolution.

18

(k)

The Receiving Party will not copy, remove, or otherwise

19

transfer any Source Code from the review computer including, without limitation,

20

copying, removing, or transferring the Source Code onto any recordable media or

21

recordable device, including without limitation sound recorders, computers, cellular

22

telephones, peripheral equipment, cameras, CDs, DVDs, or drives of any kind. The

23

Receiving Party will not transmit any Source Code in any way from the review

24

facility.

25

(l)

During inspection of the Source Code, the Receiving Party may

26

take notes, but may not copy the Source Code into the notes. The Receiving Party

27

shall maintain and store any paper copies of the Source Code or notes related to

28

such Source Code in a manner that prevents duplication of or unauthorized access

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

18.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

to the Source Code or notes, including, storing the Source Code or notes in a locked

2

room or cabinet at all times when those materials are not in use. Any such notes

3

must be labeled “HIGHLY CONFIDENTIAL – SOURCE CODE.”

4

(m)

Unless otherwise agreed by the parties in writing, following

5

each reviewing session, the Receiving Party shall remove all notes, documents, and

6

all other materials from the room that may contain work product and/or attorney-

7

client privileged information. The Producing Party shall not be responsible for any

8

items left in the room following each reviewing session.

9

(n)

The Receiving Party may make no more than five (5) additional

10

paper copies of any printed portions of Source Code, not including copies attached

11

to court filings or used at depositions. The Receiving Party’s outside counsel shall

12

maintain a log of all paper copies of Source Code printed or copied by the

13

Receiving Party or received from the Producing Party that are disclosed by the

14

Receiving Party to any person qualified to view the material under the Protective

15

Order. The log shall include the names of the reviewers and/or recipients of the

16

paper copies of the Source Code and locations where the paper copies of the Source

17

Code are stored. Upon seven days written notice, the Receiving Party shall provide

18

a copy of this log to the Producing Party. Notwithstanding the foregoing, nothing

19

in this section shall prevent a Party from making such hard copies of Source Code

20

as are necessary for use by persons authorized to access Source Code under the

21

Protective Order for use in pleadings, exhibits, expert reports, discovery documents,

22

other Court documents, or any drafts of these documents. A Receiving Party may

23

quote a Producing Party’s Source Code in, or attach portions of the Producing

24

Party’s Source Code to, any Court filing; provided, however, that the Receiving

25

Party must file any document containing Source Code under seal.

26

(o)

All hard copies of printouts designated “HIGHLY

27

CONFIDENTIAL – SOURCE CODE” shall be maintained in the custody and

28

control of the Receiving Party’s Outside Counsel of record. Any and all “HIGHLY

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

19.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

CONFIDENTIAL – SOURCE CODE” materials shall be stored and viewed only

2

within the United States; it shall not leave the geographic boundaries of the United

3

States. Any paper copies must be maintained at all times by Receiving Party’s

4

Outside Counsel of record in a locked and secure location. If the source code

5

printouts are being transported, they shall be transported in a locked container by a

6

recognized and secure overnight delivery service (with the key or combination sent

7

separately) or in the personal custody of Outside Counsel. The only exceptions to

8

this subsection (o) shall be that authorized experts are permitted to review and store

9

source code printouts (i) at a secure office or place of business that is their usual

10

place of work (i.e., not a home office) in the United States; (ii) where the office or

11

place of business has exterior locks that are locked whenever entrances are not

12

supervised; (iii) that has an interior lock on the specific interior space or internal

13

office where the printouts are stored, which is kept locked at all times; and (iv)

14

where the code is stored in a locked, secure container when it is not actively being

15

reviewed.

16

(p)

No electronic copies (including scanned or photographed

17

versions) of Source Code printouts may be made by the Receiving Party except as

18

necessary to comply with Court filing rules. Images or copies of “HIGHLY

19

CONFIDENTIAL – SOURCE CODE” materials shall not be included in

20

correspondence between the parties (references to production numbers shall be used

21

instead), and shall be omitted from pleadings and other papers whenever possible.

22

If a party reasonably believes that it needs to submit a portion of “HIGHLY

23

CONFIDENTIAL – SOURCE CODE” material as part of a filing with the Court,

24

the filing party shall limit the portion of the “HIGHLY CONFIDENTIAL –

25

SOURCE CODE” material filed to those lines of code that are cited in the any

26

accompanying pleading or submission and/or that are directly relevant to and

27

necessary for deciding the issue for which the Source Code is being filed or offered.

28

The Receiving Party shall additionally submit the filing to the Court under seal and

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

20.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

in accordance with Local Rule 79-5. The Receiving Party shall maintain a log of

2

all such electronic copies of any portion of Source Code in its possession, including

3

the names of the reviewers and/or recipients of any such electronic copies, and the

4

locations where the electronic copies are stored. Additionally, any such electronic

5

copies must be labeled “HIGHLY CONFIDENTIAL – SOURCE CODE” and

6

treated as provided for in this Order and be encrypted and password protected.

7

(q)

Copies of “HIGHLY CONFIDENTIAL – SOURCE CODE”

8

materials that are marked as deposition exhibits shall not be provided to the court

9

reporter or attached to deposition transcripts; rather, the deposition record will

10

identify the exhibit by its production numbers. All paper copies of “HIGHLY

11

CONFIDENTIAL – SOURCE CODE” materials brought to the deposition shall be

12

securely destroyed in a timely manner following the deposition.

13

(r)

A Receiving Party shall not request print outs of any Source

14

Code for review in the first instance elsewhere, as such an approach would defeat

15

the purposes of this Section.

16

IX.

17
18
19
20
21
22
23
24
25
26
27
28

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION
1.

If a Receiving Party is served with a subpoena or an order issued in

other litigation that would compel disclosure of any information or items
designated in this Litigation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL
– COUNSELS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
CODE,” the Receiving Party must so notify the Designating Party in writing,
promptly. Such notification must include a copy of the subpoena or court order.
2.

The Receiving Party also must promptly inform in writing the Party

who caused the subpoena or order to issue in the other litigation that some or all of
the material covered by the subpoena or order is the subject of this Order. Such
notice must be given at least 30 days prior to any date for production of such
documents. In addition, the Receiving Party must deliver a copy of this Order

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

21.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

promptly to the party in the other action that caused the subpoena or order to issue.

2

3.

The purpose of imposing these duties is to alert the interested parties to

3

the existence of this Protective Order and to afford the Designating Party in this

4

Litigation an opportunity to try to protect its confidentiality interests in the court

5

from which the subpoena or order issued. The Designating Party shall bear the

6

burdens and the expenses of seeking protection of its confidential material.

7

4.

Nothing in these provisions should be construed as authorizing or

8

encouraging a Receiving Party in this Litigation to disobey a lawful directive from

9

another court.

10
11

X.

PROSECUTION BAR
1.

Unless otherwise specifically agreed to in writing by the parties, any

12

receiving person who reviews any of Defendants’ HIGHLY CONFIDENTIAL –

13

COUNSELS’ EYES ONLY or HIGHLY CONFIDENTIAL – OUTSIDE

14

COUNSELS’ EYES ONLY – SOURCE CODE under this Protective Order

15

(“Prosecution Bar Materials”) shall immediately refrain from drafting or amending

16

patent claims (or assisting with the drafting or amending of patent claims) before

17

any foreign or domestic agency, including the United States Patent and Trademark

18

Office, on behalf of any party to this Action or third-party that relates to the subject

19

matter of the patents-in-suit or the Prosecution Bar Materials from the person’s first

20

access to the Prosecution Bar Materials until the earlier of (a) two (2) years after the

21

person provides written notice to each Producing Party of the date of the person’s

22

final access to any material that is designated under this Protective Order; or (b)

23

two (2) years after a final, non-appealable judgment is entered in this action.

24

2.

Notwithstanding the foregoing, and for the avoidance of doubt,

25

persons who access Defendants’ Protected Material may participate in a Patent

26

Office post-grant proceeding, provided, however, that such participation does not

27

involve in any way the drafting, or amending of patent claims or assisting with the

28

drafting or amending of patent claims.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

22.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

3.

The Prosecution Bar set forth herein shall be personal to any person

2

who reviews Prosecution Bar Materials and shall not be imputed to any other

3

persons or attorneys at the person’s law firm or employer. Attorneys who work on

4

this matter without reviewing Prosecution Bar Materials shall not be restricted from

5

engaging in prosecution activity on matters that fall within the Prosecution Bar.

6

XI.

LEGAL ADVICE

7

Nothing in this Protective Order shall prevent outside counsel from giving

8

legal advice based on information that has been designated “CONFIDENTIAL,”

9

“HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY,” or “HIGHLY

10

CONFIDENTIAL – SOURCE CODE,” provided such legal advice shall not reveal

11

the substance of any designated information to a person who is not authorized to

12

receive it.

13

XII. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

14

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

15

Protected Material to any person or in any circumstance not authorized under this

16

Order, the Receiving Party must immediately (a) notify in writing the Designating

17

Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of

18

the Protected Material, (c) inform the person or persons to whom unauthorized

19

disclosures were made of all the terms of this Order, and (d) request such person or

20

persons to execute the “Acknowledgement and Agreement of Confidentiality” that

21

is attached hereto as Exhibit A.

22

XIII. FILING PROTECTED MATERIAL

23

Without written permission from the Designating Party or a court order

24

secured after appropriate notice to all interested persons, a Party may not file in the

25

public record in this Litigation any Protected Material. A Party that seeks to file

26

under seal any Protected Material must comply with Local Rule 79-5.

27

XIV. FINAL DISPOSITION

28

Unless otherwise ordered or agreed in writing by the Producing Party, within

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

23.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

ninety (90) calendar days after the Final Disposition of this Litigation, each

2

Receiving Party must destroy all Protected Material or return all Protected Material

3

to the Producing Party. As used in this section, “all Protected Material” includes all

4

copies, abstracts, compilations, summaries, or any other form of reproducing or

5

capturing any of the Protected Material. Whether the Protected Material is returned

6

or destroyed, the Receiving Party must submit a written certification to the

7

Producing Party (and, if not the same person or entity, to the Designating Party) by

8

the 90-day deadline that all the Protected Material was returned or destroyed and

9

affirming that the Receiving Party has not retained any copies, abstracts,

10

compilations, summaries or other forms of reproducing or capturing any of the

11

Protected Material. Notwithstanding this provision, Outside Counsel of record (but

12

not Experts or anyone else) are entitled to retain all pleadings, motion papers,

13

transcripts, legal memoranda, correspondence, or attorney work product that do not

14

contain “HIGHLY CONFIDENTIAL – SOURCE CODE” materials, even if such

15

materials contain other Protected Material, provided that such retained materials are

16

stored in a secure manner that ensures that access is limited to such Outside

17

Counsel or their staff. Any such copies that contain or constitute Protected Material

18

remain subject to this Protective Order as set forth in Section IV (DURATION),

19

above. Nothing herein requires any person to alter the operation of their back-up

20

systems.

21

XV. MISCELLANEOUS

22
23
24

1.

Right to Further Relief. Nothing in this Order abridges the right of any

person to seek its modification by the Court in the future.
2.

Use of Party’s Own Materials. Nothing in this Order shall restrict a

25

Party’s ability to use and disclose its own designated information and items as it

26

chooses. Such disclosure shall not waive the protections of this Order and shall not

27

entitle other Parties or non-parties to disclose such information or items in violation

28

of this Order.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

24.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

3.

Right to Assert Other Objections. By stipulating to the entry of this

2

Order, no Party waives any right it otherwise would have to object to disclosing or

3

producing any information or item on any ground not addressed in this Order.

4

Nothing in this Order shall be construed as requiring disclosure of privileged

5

materials, materials subject to protection under the work product doctrine, or

6

materials which are otherwise beyond the scope of permissible discovery.

7

Similarly, no Party waives any right to object on any ground to the use in evidence

8

of any of the material covered by this Order. Moreover, no Party waives any right

9

to seek further protection of any documents or to oppose requests for production.

10

4.

Inadvertent Production of Privileged Information. If material subject

11

to a claim of attorney-client privilege, work-product immunity or any other

12

privilege or immunity is inadvertently produced, such production shall in no way

13

prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of

14

privilege or immunity for such information in this or any other state, federal or

15

international proceeding. When a Producing Party gives notice to Receiving Parties

16

that certain inadvertently produced material is subject to a claim of privilege or

17

other protection, the obligations of the Receiving Parties are those set forth in

18

Federal Rule of Civil Procedure 26(b)(5)(B). Employing electronic keyword

19

searching to identify and prevent disclosure of privileged material constitutes

20

“reasonable steps to prevent disclosure” under FRE 502(b)(2). Other methods may

21

also constitute such reasonable steps.

22

5.

Transmission and Communication of Protected Material. Nothing in

23

this Order shall prohibit the transmission or communication of “CONFIDENTIAL”

24

or “HIGHLY CONFIDENTIAL – COUNSELS’ EYES ONLY” Information or

25

Items between or among qualified recipients:

26

(a)

by e-mail, if the material is “CONFIDENTIAL” or “HIGHLY

27

CONFIDENTIAL – COUNSELS’ EYES ONLY,” but not if the material is

28

“HIGHLY CONFIDENTIAL – SOURCE CODE”;

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

25.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

(b)

by hand-delivery;

2

(c)

in sealed envelopes or containers via certified mail, return

3

receipt requested, or an established freight, delivery or messenger service, but not if

4

the material is “HIGHLY CONFIDENTIAL – SOURCE CODE”; or

5

(d)

by telephone, telegraph, facsimile or other electronic

6

transmission system; where, under the circumstances, there is no reasonable

7

likelihood that the transmission will be intercepted or misused by any person who is

8

not a qualified recipient, but not if the material is “HIGHLY CONFIDENTIAL –

9

SOURCE CODE.”

10

6.

Receipt of Documents Containing a Party’s Own Protected Material.

11

In the event that a Party receives a document that has been designated under this

12

Protective Order in this Litigation, but the document appears to have been so

13

marked solely because it contains the Party’s own Protected Material (for example,

14

an interrogatory response, brief, or expert report that refers to the Party’s own

15

Protected Material), the Party will not be restricted in its disclosure or use of such a

16

document after the Party confirms with Outside Counsel for the Party that produced

17

the document that the document was marked solely because it contains the Party’s

18

own Protected Material.

19

7.

Inclusion of Protected Material in Expert Reports, Briefs, and Motions.

20

A Party may include in expert reports, briefs, motions, exhibits or other litigation-

21

related documents to be served or filed in this Litigation or to be presented at

22

hearings or in trial, Protected Material received from more than one Producing

23

Party in this Litigation, regardless of whether each Producing Party remains a Party

24

to the Litigation, provided however such Protected Material is afforded all the same

25

protections set forth above based on its confidentiality designation.

26

8.

Availability to Non-Parties. It is expressly contemplated that the

27

protections of this Protective Order apply to non-parties. Any Party issuing a

28

subpoena to a non-party shall enclose a copy of this Protective Order. Non-parties

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

26.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

shall not be entitled to access information of others designated under this Protective

2

Order.

3
4
5

9.

Privilege Logs. No Party shall be required to log any information

created or dated on or after the date this Litigation was filed.
10.

Expert Discovery. A testifying Expert’s draft reports, notes, outlines,

6

and any other writings leading up to his or her final report(s) in this case are exempt

7

from discovery. In addition, all communications with a testifying Expert with

8

respect to his or her work on this case are exempt from discovery unless relied upon

9

by the Expert in forming his or her opinions.

10
11

11.

Retained Jurisdiction. The Court shall retain jurisdiction to enforce

this Order after the Final Disposition, unless the Order is vacated.

12
13

DATED: October 4, 2013

14

Respectfully submitted,
COOLEY LLP

15
By: /s/ Orion Armon
Orion Armon
James P. Brogan
Tom Friel
Sarah Guske
Peter Sauer

16
17
18
19

Attorneys for Plaintiff
ENFISH, LLC

20
21
22
23
24
25
26
27

DATED: October 4, 2013

PERKINS COIE LLP
By:/s/ Amanda Tessar
Chad S. Campbell
Lauren Sliger
Amy Simpson
Amanda Tessar
Attorneys for Defendants
MICROSOFT CORPORATION, FISERV,
INC., INTUIT, INC., and JACK HENRY &
ASSOCIATES, INC.

28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

27.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

DATED: October 4, 2013

2
3

BROWN, WEGNER & BERLINER
LLP
By:/s/ William J. Brown, Jr.
William J. Brown, Jr.
Janet Park

4
5

Attorneys for Defendant
SAGE SOFTWARE, INC.

6
7
8

IT IS SO ORDERED.

9
10
11

DATED: October 7, 2013

MARIANA R. PFAELZER
UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

28.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER

1

Exhibit A

2

IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

3
4
5

ENFISH, LLC,
Plaintiff,

6

v.

7

MICROSOFT CORPORATION, et al.

8
9

Defendants.

§
§
§
§
§
§
§
§
§
§
§

Case No. CV12-7360 MRP (MRWx)

JURY TRIAL DEMANDED

10
11
12
13
14
15
16
17
18
19
20
21

ACKNOWLEDGEMENT AND AGREEMENT OF CONFIDENTIALITY

I certify that I have read the Protective Order for the above-styled case. I
fully understand the terms of the Order. I acknowledge that I am bound by the
terms of the Order, and I agree to comply with those terms. I understand and
acknowledge that failure to comply with the terms of this Order could expose me to
sanctions and punishment in the nature of contempt. I solemnly promise that I will
not disclose in any manner, nor take any actions that would lead to the disclosure
of, any information or item that is subject to this Protective Order to any person or
entity except in strict compliance with the provisions of this Order. I consent to the
personal jurisdiction of the United States District Court, Central District of
California, for any proceeding involving the enforcement of this Order.

22
23
Signature

24
25

Name

26

Affiliation

27

Date

28
COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

29.

CV12-7360 MRP (MRWX)
[PROPOSED] STIPULATED PROTECTIVE
ORDER