Guardian Media Technologies, Ltd. v. Amazon.com, Inc. et al

Filing 128

PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams 121 (ch)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GUARDIAN MEDIA
TECHNOLOGIES, LTD,

Case No. 2:13-cv-08369 PSG (PLAx)
PROTECTIVE ORDER

Plaintiff,

Honorable Paul L. Abrams

v.
AMAZON.COM, INC., et al.
Defendant.

GOOD CAUSE STATEMENT

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Disclosure and discovery activity in this action are likely to involve

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production of confidential license and settlement agreements, sales information,

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schematics, source code, technical documentation or other confidential research,

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development, commercial, proprietary, or private information for which special

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

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litigation may be warranted. Accordingly, the parties hereby stipulate to and

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request that the Court enter the following Protective Order pursuant to Rule 26(c)

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of the Federal Rules of Civil Procedure.

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The parties believe that good cause exists for the entry of this Order because

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protected material constitutes confidential or proprietary information, the

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disclosure of which is likely to have the effect of harming the competitive position
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of the designating party or violating an obligation of confidentiality owed to a third

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party.

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Protected material designated under the terms of this Order shall be used by

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a receiving party solely for this litigation and shall not be used directly or

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indirectly for any other purpose whatsoever, and its disclosure is prohibited except

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as expressly provided in this Order.

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The parties acknowledge that this Order does not confer blanket protections

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on all disclosures or responses to discovery. Designations of confidentiality shall

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be made with care and shall not be made absent a good faith belief that the

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Protected Material satisfies the criteria set forth below for each category.

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PURPOSE AND LIMITS OF THIS ORDER

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Discovery in this action is likely to involve confidential, proprietary, or

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private information containing or reflecting financial information, contractual

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terms, or the design and operation of products such as financial statements and

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records, license and settlement agreements, design specifications, source code, etc.

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Such information may require special protection from public disclosure and from

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use for any purpose other than this litigation. Thus, the Court enters this Protective

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Order. This Order does not confer blanket protections on all disclosures or

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responses to discovery, and the protection it gives from public disclosure and use

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extends only to the specific material entitled to confidential treatment under the

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applicable legal principles.

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This Order does not automatically authorize the filing under seal of material

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designated under this Order. Instead, the parties must comply with L.R. 79-5.1 if

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they seek to file anything under seal. See Section 10 (“Filing Under Seal”) below.

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This Order applies to all pre-trial proceedings but does not govern the use at

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trial of material designated under this Order. The parties agree that a separate

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confidentiality agreement will govern the trial in this matter. The parties agree to

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negotiate such agreement prior to trial to govern the use of information designated
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under this Order and documents during trial. Counsel for the parties will submit

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such agreement (or their respective proposals, if no agreement can be reached) to

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the Court for consideration.

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2.

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DESIGNATING PROTECTED MATERIAL
2.1

Over-Designation Prohibited. Any party or non-party who

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designates information or items for protection under this Order as

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” (a “designator”)

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must only designate specific material that qualifies under the appropriate standards.

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To the extent practicable, only those parts of documents, items, or oral or written

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communications that require protection shall be designated. Designations with a

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higher confidentiality level when a lower level would suffice are prohibited. Mass,

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indiscriminate, or routinized designations are prohibited. Unjustified designations

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expose the designator to sanctions, including the Court’s striking all confidentiality

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designations made by that designator. Designation under this Order is allowed

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only if the designation is necessary to protect material that, if disclosed to persons

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not authorized to view it, would cause competitive or other recognized harm.

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Material may not be designated if it has been made public, or if designation is

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otherwise unnecessary to protect a secrecy interest. If a designator learns that

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information or items that it designated for protection do not qualify for protection

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at all or do not qualify for the level of protection initially asserted, that designator

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must promptly notify all parties that it is withdrawing the mistaken designation.

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2.2

Manner and Timing of Designations. Designation under this Order

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requires the designator to affix the applicable legend (“CONFIDENTIAL,”

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“HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY,” or “HIGHLY

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CONFIDENTIAL – SOURCE CODE”) to each page that contains protected

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material. For testimony given in deposition or other proceeding, the designator

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shall specify all protected testimony and the level of protection being asserted. It
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may make that designation during the deposition or proceeding, or may invoke, on

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the record or by written notice to all parties on or before the next business day, a

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right to have up to 21 days from the deposition or proceeding to make its

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designation.

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2.2.1 A party or non-party that makes original documents or

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materials available for inspection need not designate them for protection

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until after the inspecting party has identified which material it would like

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copied and produced. During the inspection and before the designation, all

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material shall be treated as HIGHLY CONFIDENTIAL – ATTORNEY

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EYES ONLY. After the inspecting party has identified the documents it

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wants copied and produced, the producing party must designate the

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documents, or portions thereof, that qualify for protection under this Order.

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2.2.2 Parties shall give advance notice if they expect a deposition or

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other proceeding to include designated material so that the other parties can

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ensure that only authorized individuals are present at those proceedings

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when such material is disclosed or used. The use of a document as an

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exhibit at a deposition shall not in any way affect its designation.

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Transcripts containing designated material shall have a legend on the title

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page noting the presence of designated material. The designator shall

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inform the court reporter of these requirements. Any transcript that is

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prepared before the expiration of the 21-day period for designation shall be

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treated during that period as if it had been designated HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY unless otherwise agreed.

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After the expiration of the 21-day period, the transcript shall be treated only

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as actually designated.

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2.3

Inadvertent Failures to Designate. An inadvertent failure to

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designate does not, standing alone, waive protection under this Order. Upon timely

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assertion or correction of a designation, all recipients must make reasonable efforts
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to ensure that the material is treated according to this Order.

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3.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
All challenges to confidentiality designations shall proceed under L.R. 37-1

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through L.R. 37-4.

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4.

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ACCESS TO DESIGNATED MATERIAL
4.1

Basic Principles. A receiving party may use designated material only

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for this litigation. Designated material may be disclosed only to the categories of

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persons and under the conditions described in this Order.

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4.2

Disclosure of CONFIDENTIAL Material Without Further

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Approval. Unless otherwise ordered by the Court or permitted in writing by the

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designator, a receiving party may disclose any material designated

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CONFIDENTIAL only to:

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4.2.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom disclosure is

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reasonably necessary;

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4.2.2 The officers, directors, and employees of the receiving party to

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whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.3 Experts retained by the receiving party’s outside counsel of

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record to whom disclosure is reasonably necessary, and who have signed the

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Agreement to Be Bound (Exhibit A);

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4.2.4 The Court and its personnel;

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4.2.5 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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4.2.6 During their depositions, witnesses in the action and their

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outside counsel to whom disclosure is reasonably necessary and who have

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signed the Agreement to Be Bound (Exhibit A); and
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4.2.7 The author or recipient of a document containing the material, or a

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custodian or other person who otherwise possessed or knew the information, and

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such person’s outside counsel who have signed the Agreement to Be Bound

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(Exhibit A).

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4.3

Disclosure of HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY and HIGHLY CONFIDENTIAL – SOURCE CODE Material Without

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Further Approval. Unless permitted in writing by the designator, a receiving

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party may disclose material designated HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE

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without further approval only to:
4.3.1 The receiving party’s outside counsel of record in this action

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and employees of outside counsel of record to whom it is reasonably

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necessary to disclose the information;

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4.3.2 The Court and its personnel;

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4.3.3 Outside court reporters and their staff, professional jury or trial

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consultants, and professional vendors to whom disclosure is reasonably

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necessary, and who have signed the Agreement to Be Bound (Exhibit A);

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and
4.3.4 The author or recipient of a document containing the material,

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or a custodian or other person who otherwise possessed or knew the

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information, and such person’s outside counsel who have signed the

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Agreement to Be Bound (Exhibit A).

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4.4

Procedures for Approving or Objecting to Disclosure of

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CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE Material to In-

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House Counsel or Experts. Unless agreed to in writing by the designator:

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4.4.1 A party seeking to disclose to in-house counsel any material
designated HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY must
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first make a written request to the designator providing the full name of the

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in-house counsel, the city and state of such counsel’s residence, and such

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counsel’s current and reasonably foreseeable future primary job duties and

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responsibilities in sufficient detail to determine present or potential

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involvement in any competitive decision-making; supervising litigation,

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including participating in decisions regarding settlement of litigation, does

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not constitute competitive decision-making . In-house counsel are not

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authorized to receive material designated HIGHLY CONFIDENTIAL –

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SOURCE CODE.

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4.4.2 A party seeking to disclose to an expert retained by outside

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counsel of record any information or item that has been designated

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CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEY EYES

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ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE must first make a

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written request to the designator that (1) identifies the category or categories

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of information, i.e., CONFIDENTIAL, HIGHLY CONFIDENTIAL –

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ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE

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CODE information that the receiving party seeks permission to disclose to

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the expert, (2) sets forth the full name of the expert and the city and state of

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his or her primary residence, (3) attaches a copy of the expert’s current

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resume, (4) identifies the expert’s current employer(s), (5) identifies each

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person or entity from whom the expert has received compensation or

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funding for work in his or her areas of expertise (including in connection

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with litigation) in the past five years, and (6) identifies (by name and number

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of the case, filing date, and location of court) any litigation where the expert

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has offered expert testimony, including by declaration, report, or testimony

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at deposition or trial, in the past five years. If the expert believes any of this

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information at (4) - (6) is subject to a confidentiality obligation to a third

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party, then the expert should provide whatever information the expert
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believes can be disclosed without violating any confidentiality agreements,

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and the party seeking to disclose the information to the expert shall be

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available to meet and confer with the designator regarding any such

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confidentiality obligations.

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4.4.3 A party that makes a request and provides the information

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specified in paragraphs 4.4.1 or 4.4.2 may disclose the designated material to

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the identified in-house counsel or expert unless, within seven days of

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delivering the request, the party receives a written objection from the

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designator providing detailed grounds for the objection.
4.4.4 All challenges to objections from the designator shall proceed

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under L.R. 37-1 through L.R. 37-4.
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SOURCE CODE
5.1

Designation of Source Code. If production of source code is

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necessary, a party may designate it as HIGHLY CONFIDENTIAL – SOURCE

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CODE if it is, or includes, confidential, proprietary, or trade secret source code.

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5.2

Location and Supervision of Inspection. Any HIGHLY

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CONFIDENTIAL – SOURCE CODE produced in discovery shall be made

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available for inspection, in a format allowing it to be reasonably reviewed and

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searched, during normal business hours or at other mutually agreeable times, at an

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office of the designating party’s counsel or another mutually agreeable location.

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The source code shall be made available for inspection on a secured computer in a

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secured room, and the inspecting party shall not copy, remove, or otherwise

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transfer any portion of the source code onto any recordable media or recordable

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device. The designator may visually monitor the activities of the inspecting party’s

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representatives during any source code review, but only to ensure that there is no

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unauthorized recording, copying, or transmission of the source code.

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5.3

Paper Copies of Source Code Excerpts. The inspecting party may

request paper copies of limited portions of source code that are reasonably
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necessary for the preparation of court filings, pleadings, expert reports, other

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papers, or for deposition or trial. The designator shall provide all such source code

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in paper form, including Bates numbers and the label “HIGHLY CONFIDENTIAL

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– SOURCE CODE.”
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Access Record. The inspecting party shall maintain a record of any

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individual who has inspected any portion of the source code in electronic or paper

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form, and shall maintain all paper copies of any printed portions of the source code

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in a secured, locked area. The inspecting party shall not convert any of the

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information contained in the paper copies into any electronic format other than for

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the preparation of a pleading, exhibit, expert report, discovery document,

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deposition transcript, or other Court document. Any paper copies used during a

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deposition shall be retrieved at the end of each day and must not be left with a

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court reporter or any other unauthorized individual.

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6.

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PROSECUTION BAR
Absent written consent from the designator, any individual who receives

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access to HIGHLY CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY

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CONFIDENTIAL – SOURCE CODE information shall not be involved in the

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prosecution of patents or patent applications concerning the field of the invention

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of the patents-in-suit for the receiving party or its acquirer, successor, predecessor,

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or other affiliate during the pendency of this action and for one year after its

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conclusion, including any appeals. “Prosecution” means drafting, amending,

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advising on the content of, or otherwise affecting the scope or content of patent

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claims or specifications. These prohibitions shall not preclude counsel from

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participating in reexamination or inter partes review proceedings to challenge or

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defend the validity of any patent, but counsel may not participate in the drafting of

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amended claims in any such proceedings.

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///

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///
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7.

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PRODUCED IN OTHER LITIGATION

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PROTECTED MATERIAL SUBPOENAED OR ORDERED
7.1

Subpoenas and Court Orders. This Order in no way excuses non-

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compliance with a lawful subpoena or court order. The purpose of the duties

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described in this section is to alert the interested parties to the existence of this

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Order and to give the designator an opportunity to protect its confidentiality

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interests in the court where the subpoena or order issued.

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7.2

Notification Requirement. If a party is served with a subpoena or a

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court order issued in other litigation that compels disclosure of any information or

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items designated in this action as CONFIDENTIAL, HIGHLY CONFIDENTIAL

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– ATTORNEY EYES ONLY, or HIGHLY CONFIDENTIAL – SOURCE CODE,

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that party must:
7.2.1 Promptly notify the designator in writing. Such notification

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shall include a copy of the subpoena or court order;
7.2.2 Promptly notify in writing the party who caused the subpoena

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or order to issue in the other litigation that some or all of the material

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covered by the subpoena or order is subject to this Order. Such notification

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shall include a copy of this Order; and
7.2.3 Cooperate with all reasonable procedures sought by the

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designator whose material may be affected.

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7.3

Wait For Resolution of Protective Order. If the designator timely

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seeks a protective order, the party served with the subpoena or court order shall not

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produce any information designated in this action as CONFIDENTIAL, HIGHLY

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CONFIDENTIAL – ATTORNEY EYES ONLY or HIGHLY CONFIDENTIAL –

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SOURCE CODE before a determination by the court where the subpoena or order

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issued, unless the party has obtained the designator’s permission. The designator

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shall bear the burden and expense of seeking protection of its confidential material

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in that court.
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8.

UNAUTHORIZED DISCLOSURE OF DESIGNATED MATERIAL

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If a receiving party learns that, by inadvertence or otherwise, it has disclosed

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designated material to any person or in any circumstance not authorized under this

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Order, it must immediately (1) notify in writing the designator of the unauthorized

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disclosures, (2) use its best efforts to retrieve all unauthorized copies of the

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designated material, (3) inform the person or persons to whom unauthorized

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disclosures were made of all the terms of this Order, and (4) use reasonable efforts

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to have such person or persons execute the Agreement to Be Bound (Exhibit A).

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9.

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INADVERTENT PRODUCTION OF PRIVILEGED OR

OTHERWISE PROTECTED MATERIAL

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When a producing party gives notice that certain inadvertently produced

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material is subject to a claim of privilege or other protection, the obligations of the

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receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).

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This provision is not intended to modify whatever procedure may be established in

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an e-discovery order that provides for production without prior privilege review

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pursuant to Federal Rule of Evidence 502(d) and (e).

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10.

FILING UNDER SEAL

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Without written permission from the designator or a Court order, a party

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may not file in the public record in this action any designated material. A party

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seeking to file under seal any designated material must comply with L.R. 79-5.1.

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Filings may be made under seal only pursuant to a court order authorizing the

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sealing of the specific material at issue. The fact that a document has been

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designated under this Order is insufficient to justify filing under seal. Instead,

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parties must explain the basis for confidentiality of each document sought to be

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filed under seal. In addition, if the filing relates to a dispositive motion, the party

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seeking to file under seal must show “compelling reasons” for sealing such

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materials. See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1180-81

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(9th Cir. 2006). Because a party other than the designator will often be seeking to
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file designated material, cooperation between the parties in preparing, and in

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reducing the number and extent of, requests for under seal filing is essential. If a

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receiving party’s request to file designated material under seal pursuant to L.R. 79-

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5.1 is denied by the Court, then the receiving party may file the material in the

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public record unless (1) the designator seeks reconsideration within four days of

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the denial, or (2) as otherwise instructed by the Court.

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11.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, each party shall

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return all designated material to the designator or destroy such material, including

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all copies, abstracts, compilations, summaries, and any other format reproducing or

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capturing any designated material. The receiving party must submit a written

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certification to the designator by the 60-day deadline that (1) identifies (by

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category, where appropriate) all the designated material that was returned or

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destroyed, and (2) affirms that the receiving party has not retained any copies,

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abstracts, compilations, summaries, or any other format reproducing or capturing

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any of the designated material, except as permitted by this Order. This provision

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shall not prevent counsel from retaining an archival copy of all pleadings, motion

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papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work

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product, and consultant and expert work product, even if such materials contain

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designated material. Any such archival copies remain subject to this Order.

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IT IS SO ORDERED.
DATED: November 24, 2014

____________________________
Paul L. Abrams
United States Magistrate Judge

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EXHIBIT A

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AGREEMENT TO BE BOUND

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I, _____________________________ [print or type full name], of

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_________________ [print or type full address], declare under penalty of perjury

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that I have read in its entirety and understand the Protective Order that was issued

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by the United States District Court for the Central District of California on

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_______ [date] in the case of ___________ [insert formal name of the case and

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the number and initials assigned to it by the court]. I agree to comply with and

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to be bound by all the terms of this Protective Order, and I understand and

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acknowledge that failure to so comply could expose me to sanctions and

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punishment for contempt. I solemnly promise that I will not disclose in any manner

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any information or item that is subject to this Protective Order to any person or

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entity except in strict compliance with this Order.

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I further agree to submit to the jurisdiction of the United States District

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Court for the Central District of California for the purpose of enforcing this Order,

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even if such enforcement proceedings occur after termination of this action.

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I hereby appoint __________________________ [print or type full name] of

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_______________________________________ [print or type full address and

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telephone number] as my California agent for service of process in connection with

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this action or any proceedings related to enforcement of this Order.

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Date: ___________________________

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City and State where sworn and signed: _________________________________

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Printed name: ____________________

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[printed name]

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Signature: _______________________

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[signature]
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