Mitsubishi Electric Corp. et al v. Sceptre, Inc.

Filing 48

ORDER ON STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING HIGHLY SENSITIVE CONFIDENTIAL INFORMATION #46 by Judge Otis D. Wright, II (lc) Modified on 12/17/2014 (lc).

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Susan L. Gutierrez
(State Bar No. 273980)
[e-mail]
PROSKAUER ROSE LLP
2049 Century Park East, 32nd Floor
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Steven M. Bauer (admitted pro hac vice)
[e-mail]
Justin J. Daniels (admitted pro hac vice)
[e-mail]
Safraz W. Ishmael (admitted pro hac vice)
[e-mail]
PROSKAUER ROSE LLP
One International Place
Boston, Massachusetts 02110
Telephone: [phone]
Facsimile: [phone]
Baldassare Vinti (admitted pro hac vice)
[e-mail]
PROSKAUER ROSE LLP
Eleven Times Square
New York, New York 10036
Telephone: [phone]
Facsimile: [phone]

Christopher Kao, State Bar No. 237716
[e-mail]
PERKINS COIE LLP
3150 Porter Drive
Palo Alto, CA 94304-1212
Telephone: [phone]
Facsimile: 650.383.4350
David J. Tsai, State Bar No. 244479
[e-mail]
PERKINS COIE LLP
Four Embarcadero Center, Suite 2400
San Francisco, CA 94111-4131
Telephone: [phone]
Facsimile: 415.344.7050
Christine Yang, State Bar No. 102048
[e-mail]
LAW OFFICE OF S.J. CHRISTINE
YANG
17220 Newhope Street, Suites 101-102
Fountain Valley, CA 92708
Telephone: [phone]
Facsimile: 714.641.2082
Attorneys for Defendant
SCEPTRE, INC.

Attorneys for Plaintiffs
UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MITSUBISHI ELECTRIC CORP.
(alternatively named MITSUBISHI
DENKI KABUSHIKI KAISHA),
KONINKLIJKE PHILIPS N.V.,
THOMSON LICENSING, GE
TECHNOLOGY DEVELOPMENT,
INC., PANASONIC CORPORATION,
and SONY CORPORATION,

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vs.

Plaintiffs,

Case No. 2:14-cv-04994-ODW
(AJWx)
DISCOVERY MATTER
ORDER ON STIPULATED
PROTECTIVE ORDER FOR
LITIGATION INVOLVING
HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION

SCEPTRE, INC.,
Defendant.

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ORDER ON STIPULATED PROTECTIVE ORDER

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The Court, having considered the Stipulation for Protective Order for

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Litigation Involving Highly Sensitive Confidential Information of Plaintiffs

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Mitsubishi Electric Corp. (alternatively named Mitsubishi Denki Kabushiki Kaisha),

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Koninklijke Philips N.V., Thomson Licensing, GE Technology Development, Inc.,

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Panasonic Corporation, and Sony Corporation, and Defendant Sceptre, Inc.

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(together, the “Parties”), and finding good cause appearing, HEREBY ORDERS the

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following protective order as its own.

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1.

PURPOSES AND LIMITATIONS

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Good cause exists to enter into this Stipulated Protective Order because

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disclosure in this action during or in conjunction with pre-motion meet and confer

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discussions, settlement negotiations and discussions, initial disclosures, fact and

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expert discovery are likely to involve production of confidential and proprietary

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information of the Parties, including, without limitation, highly sensitive technical,

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financial or business information or proprietary information that has not been

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disseminated to the public at large, which is not readily discoverable by competitors

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and has been the subject of reasonable efforts by the respective parties to maintain

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its secrecy, and for which special protection from public disclosure and from use for

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any purpose other than prosecuting this litigation would be warranted. Accordingly,

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the Parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The Parties acknowledge that this Stipulated Protective

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

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discovery and that the protection it affords from public disclosure and use extends

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only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The Parties further acknowledge that this

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Stipulated Protective Order does not entitle them to file confidential information

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under seal; Civil Local Rule 79-5.1 sets forth the procedures that must be followed

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and the standards that will be applied when a Party seeks permission from the Court

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to file material under seal.
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ORDER ON STIPULATED PROTECTIVE ORDER

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2.

GOOD CAUSE STATEMENT

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This case involves competitors and allegations of patent infringement. The

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Parties believe that good cause exists to enter this Stipulated Protective Order in

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order to protect confidential information from disclosure and certain confidential

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information from disclosure to each other’s employees.

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information includes information and data that could be used by the Parties and/or

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actual or potential competitors to gain an improper and unlawful competitive

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advantage in the marketplace. For example, confidential information relevant to this

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action may include, among other things, customer lists and contact information;

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business and technical information; pricing and historical purchasing information;

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and customers’ business and technical needs and preferences; sales data; research,

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development, and manufacturing information related to the Parties’ products. The

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Parties have attempted to draft this Stipulated Protective Order narrowly and in a

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manner no more restrictive than necessary to protect confidential information from

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public disclosure.

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3.

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DEFINITIONS
3.1

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That confidential

Challenging Party: a Party or Non-Party that challenges the designation

of information or items under this Stipulated Protective Order.
3.2

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“CONFIDENTIAL” Information or Items: information (regardless of

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

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protection under Federal Rule of Civil Procedure 26(c).
3.3

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Counsel (without qualifier): Outside Counsel of Record and In-House

Counsel (as well as their support staff).
3.4

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Designated In-House Counsel: In-House Counsel who seek access to

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this

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matter.
3.5

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Designating Party: a Party or Non-Party that designates information or

items that it produces in disclosures, depositions or in responses to discovery as
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ORDER ON STIPULATED PROTECTIVE ORDER

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“CONFIDENTIAL,”

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ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE”.
3.6

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

Disclosure or Discovery Material: all items or information, regardless

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of the medium or manner in which it is generated, stored, or maintained (including,

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among other things, testimony, transcripts, and tangible things), that are produced or

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generated in disclosures, depositions, or responses to discovery in this matter.
3.7

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

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pertinent to the litigation who (1) has been retained by a Party or its counsel to serve

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as an expert witness or as a consultant in this action, (2) is not a past or current

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employee of the opposing Party in this litigation, and (3) is not anticipated to

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become an employee of an opposing Party in this litigation.
3.8

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: information (regardless of how it is generated, stored or

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maintained) or tangible things that the Designating Party believes in good faith

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would constitute trade secrets or information concerning confidential research and

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development, or other commercial information that has value from not being

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generally known, and the disclosure of which creates a substantial risk of serious

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harm to the Designating Party. Parties may also in appropriate circumstances use

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the designation “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES

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ONLY,” for which the same protections and procedures would apply, except that, in

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addition, the designated material cannot be disclosed to individuals described in

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section 8.3(b).
3.9

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“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

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Items: extremely sensitive “Confidential” Information or Items representing

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computer code and associated comments and revision histories, and formulas that

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define or otherwise describe in detail the algorithms or structure of software or

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ORDER ON STIPULATED PROTECTIVE ORDER

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hardware designs, disclosure of which to another Party or Non-Party would create a

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substantial risk of serious harm that could not be avoided by less restrictive means.

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3.10 In-House Counsel: attorneys who are employees of a Party to this

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action and whose job responsibility is legal in nature. In-House Counsel does not

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include Outside Counsel of Record or any other outside counsel.
3.11 Non-Party: any natural person, partnership, corporation, association, or

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other legal entity not named as a Party to this action.

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3.12 Outside Counsel of Record: attorneys who are not employees of a Party

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but are retained to represent or advise a Party and have appeared in this action on

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behalf of that Party or are employed by a law firm which has appeared on behalf of

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that Party.
3.13 Party: any party to this action, including all of its officers, directors,

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and employees.
3.14 Producing Party: a Party or Non-Party that produces Discovery

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Material in this action.

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3.15 Professional Vendors: persons or entities that provide litigation support

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

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.
3.16 Protected Material: any Discovery Material that is designated as

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“CONFIDENTIAL,”

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE.”
3.17 Receiving Party: a Party that receives Discovery Material from a

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Producing Party.

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4.

4.1

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SCOPE
The protections conferred by this Stipulation and Order cover not only

Protected Material (as defined above), but also (1) any information copied or
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ORDER ON STIPULATED PROTECTIVE ORDER

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time of

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disclosure to a Receiving Party or becomes part of the public domain after its

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disclosure to a Receiving Party as a result of publication not involving a violation of

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this Stipulated Protective Order, and (b) any information known to the Receiving

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Party prior to the disclosure or obtained by the Receiving Party after the disclosure

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from a source who obtained the information lawfully and under no obligation of

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confidentiality to the Designating Party.

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5.

DURATION

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Even after Final Disposition of this litigation (as defined in Section), the

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confidentiality obligations imposed by this Stipulated Protective Order shall remain

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in effect until a Designating Party agrees otherwise in writing or a court order

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otherwise directs.

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dismissal of all claims and defenses in this action, with or without prejudice; and (2)

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final judgment herein after the completion and exhaustion of all appeals, rehearings,

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remands, trials, or reviews of this action, including the time limits for filing any

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motions or applications for extension of time pursuant to applicable law.

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6.

DESIGNATING PROTECTED MATERIAL
6.1

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“Final disposition” shall be deemed to be the later of (1)

Exercise of Restraint and Care in Designating Material for Protection.

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Each Party or Non-Party that designates information or items for protection under

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this Stipulated Protective Order must take care to limit any such designation to

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specific material that qualifies under the appropriate standards.

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If it comes to a Designating Party’s attention that information or items that it

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designated for protection do not qualify for protection at all or do not qualify for the

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ORDER ON STIPULATED PROTECTIVE ORDER

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level of protection initially asserted, that Designating Party must promptly notify all

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other Parties that it is withdrawing the designation.
6.2

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Manner and Timing of Designations. Except as otherwise provided in

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this Stipulated Protective Order (see, e.g., second paragraph of section 6.2(a)

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below), or as otherwise stipulated or ordered, Discovery Material that qualifies for

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protection under this Stipulated Protective Order must be clearly so designated

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before the material is disclosed or produced.

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Designation in conformity with this Stipulated Protective Order requires:

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

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but excluding transcripts of depositions or other pretrial or trial proceedings), that

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the

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

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OUTSIDE COUNSEL EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE

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CODE” to each page of the document unless the document is produced in a native

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format, in which case the Producing Party may affix the legend to a cover sheet,

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electronic slip sheet, or the storage media associated with the native document.

Producing

Party

affix

the

legend

“CONFIDENTIAL,”

“HIGHLY

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A Party or Non-Party that makes original documents or materials available for

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inspection need not designate them for protection until after the inspecting Party has

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indicated which material it would like copied and produced. During the inspection

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and before the designation, all of the material made available for inspection shall be

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deemed “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.”

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After the inspecting Party has identified the documents it wants copied and

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produced, the Producing Party must determine which documents qualify for

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protection under this Stipulated Protective Order.

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specified documents, the Producing Party must affix the appropriate legend

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE” to each page of the document;

Then, before producing the

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ORDER ON STIPULATED PROTECTIVE ORDER

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(b) for testimony given in deposition, the Designating Party may have up to

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twenty-one (21) days from the date the final transcript is provided to the

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Designating Party to identify the specific portions of the testimony as to which

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protection is sought and to specify the level of protection being asserted. Only those

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portions of the testimony that are appropriately designated for protection within the

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21 days shall be covered by the provisions of this Stipulated Protective Order.

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Pending this designation, the entire transcript and all testimony and information

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coming from the deposition, shall be treated as “HIGHLY CONFIDENTIAL –

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OUTSIDE COUNSEL EYES ONLY.”

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Parties shall give the other Parties notice if they reasonably expect a

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deposition, hearing or other proceeding to include Protected Material so that the

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other Parties can ensure that only authorized individuals who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those

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proceedings. The use of a document as an exhibit at a deposition shall not in any

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way affect its designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSEL EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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Transcripts containing Protected Material shall have an obvious legend on the

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title page that the transcript contains Protected Material, and the title page shall be

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followed by a list of all pages (including line numbers as appropriate) that have been

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designated as Protected Material and the level of protection being asserted by the

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Designating Party. The Designating Party shall inform the court reporter of these

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requirements; and

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(c) for information produced in some form other than that contemplated by

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sections 6.2(a) and 6.2(b), that the Producing Party affix in a prominent place on the

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exterior of the container or containers in which the information or item is stored the

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legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ORDER ON STIPULATED PROTECTIVE ORDER

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ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE.”
6.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent

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failure to designate qualified information or items does not, standing alone, waive

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the Designating Party’s right to secure protection under this Stipulated Protective

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Order for such material. Upon timely correction of a designation, the Receiving

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Party must make reasonable efforts to assure that the material is treated in

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accordance with the provisions of this Stipulated Protective Order.
6.4

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Redactions.

Counsel for a Party producing documents may redact

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material deemed exempt from discovery because it is protected from disclosure by

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an applicable privilege or privileges, and such privilege or immunity has not been

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waived. However, any document from which material is redacted must identify in

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the redacted area that redaction has occurred. The reason for such redaction must be

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stated either on the document itself or on a log to be provided within thirty (30) days

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after the production of the documents. The Parties reserve the right to pursue

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additional categories for redaction, by either consent of the Parties or order of the

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Court, to be addressed on a case-by-case basis.

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7.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
7.1

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Timing of Challenges.

Any Party may challenge a designation of

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confidentiality at any time.

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.
7.2

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A Party does not waive its right to challenge a

Meet and Confer. The Challenging Party shall initiate the dispute

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

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

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challenge has been made, the written notice must recite that the challenge to

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

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Stipulated Protective Order. The Parties shall attempt to resolve each challenge in
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ORDER ON STIPULATED PROTECTIVE ORDER

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good faith and must begin the process by conferring within 14 days of the date of

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service of notice. In conferring, the Challenging Party must explain the basis for its

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belief that the confidentiality designation was not proper and must give the

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Designating Party an opportunity to review the designated material, to reconsider

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

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

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

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establishes that the Designating Party is unwilling to participate in the meet and

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confer process in a timely manner.
7.3

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Judicial Intervention. If the Parties cannot resolve a challenge under

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section 7.2, the Challenging Party shall file and serve a motion to remove the

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confidentiality designation within 21 days of the initial notice of challenge or within

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14 days of the Parties agreeing that the meet and confer process will not resolve

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their dispute, whichever is earlier. Each such motion must be accompanied by a

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competent certification affirming that the movant has complied with the meet and

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confer requirements imposed in the preceding paragraph.

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Challenging Party to make such a motion including the required certification within

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21 days (or earlier, if applicable) shall automatically waive the challenge to the

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confidentiality designation for each challenged designation.

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Designating Party may file a motion upholding a confidentiality designation at any

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time it believes there is good cause for doing so. Any motion brought pursuant to

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this provision must be made in compliance with Local Rules 37-1 and 37-2

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(including the Joint Stipulation requirement).

Failure by the

In addition, the

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The burden of persuasion in any such challenge proceeding shall be on the

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Designating Party. Frivolous challenges and those made for an improper purpose

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(e.g., to harass or impose unnecessary expenses and burdens on other Parties) may

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expose the Challenging Party to sanctions. Unless the Designating Party has waived

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the confidentiality designation by failing to file a motion to retain confidentiality as
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ORDER ON STIPULATED PROTECTIVE ORDER

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described above, all Parties shall continue to afford the material in question the level

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of protection to which it is entitled under the Producing Party’s designation until the

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Court rules on the challenge.

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8.

ACCESS TO AND USE OF PROTECTED MATERIAL
8.1

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

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

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case only for prosecuting, defending, or attempting to settle this litigation. Such

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Protected Material may be disclosed only to the categories of persons and under the

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conditions described in this Stipulated Protective Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of section 15

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below (FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a

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

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authorized under this Stipulated Protective Order.
8.2

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Disclosure of “CONFIDENTIAL” Information or Items.

Unless

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

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Receiving

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“CONFIDENTIAL” only to:

Party

may

disclose

any

information

or

item

designated

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation;

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(b) the officers, directors, and employees (including In-House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(c) Experts (as defined in this Stipulated Protective Order) of the Receiving

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Party to whom disclosure is reasonably necessary for this litigation and who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the Court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A);

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(f) during their depositions, and in compliance with this Stipulated Protective

6

Order (see, e.g., section 14.4 below), witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the Court. Pages of transcribed deposition testimony or exhibits to depositions

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that reveal Protected Material must be separately bound by the Court reporter and

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may not be disclosed to anyone except as permitted under this Stipulated Protective

12

Order; and
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.
8.3

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” and

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“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated “HIGHLY

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

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OUTSIDE COUNSEL EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE

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CODE” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record to whom it is reasonably necessary to

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disclose the information for this litigation;

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(b) a maximum of two (2) Designated In-House Counsel of the Receiving

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Party (1) who have no involvement in competitive non-legal decision-making, (2) to

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whom disclosure is reasonably necessary for this litigation, (3) who have signed the
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ORDER ON STIPULATED PROTECTIVE ORDER

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom

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the procedures set forth in section 8.4(a)(1), below, have been followed, provided,

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however, that no information or item designated “HIGHLY CONFIDENTIAL –

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OUTSIDE COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE

5

CODE” may be disclosed to Designated In-House Counsel;

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(c) Experts (as defined in this Stipulated Protective Order) of the Receiving

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Party (1) to whom disclosure is reasonably necessary for this litigation, (2) who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and

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(3) as to whom the procedures set forth in section 8.4(a)(2), below, have been

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followed;

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(d) the Court and its personnel;

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(e) during their depositions, and in compliance with this Stipulated Protective

13

Order (see, e.g., section 14.4 below), witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the Court. Pages of transcribed deposition testimony or exhibits to depositions

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that reveal Protected Material must be separately bound by the Court reporter and

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may not be disclosed to anyone except as permitted under this Stipulated Protective

19

Order;

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(f) court reporters and their staff, professional jury or trial consultants, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A); and
(g) the author or recipient of a document containing the information or a

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custodian or other person who otherwise possessed or knew the information.
8.4

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Procedures for Approving or Objecting to Disclosure of “HIGHLY

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

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ORDER ON STIPULATED PROTECTIVE ORDER

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OUTSIDE COUNSEL EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE

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CODE” Information or Items to Designated In-House Counsel or Experts.

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(a)(1) Unless otherwise ordered by the Court or agreed to in writing by the

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Designating Party, a Party that seeks to disclose to Designated In-House Counsel

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any information or item that has been designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” pursuant to section 8.3(b) first must make a written

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request to the Designating Party that (1) sets forth the full name of the Designated

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In-House Counsel and the city and state of his or her residence, and (2) describes the

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Designated In-House Counsel’s current and reasonably foreseeable future primary

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job duties and responsibilities in sufficient detail to determine if In-House Counsel

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is involved, or may become involved, in any competitive decision-making.

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(a)(2) Unless otherwise ordered by the Court or agreed to in writing by the

13

Designating Party, a Party that seeks to disclose to an Expert (as defined in this

14

Stipulated Protective Order) any information or item that has been designated

15

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

16

CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or “HIGHLY

17

CONFIDENTIAL – SOURCE CODE” pursuant to section 8.3(c) first must make a

18

written request to the Designating Party that (1) sets forth the full name of the

19

Expert and the city and state of his or her primary residence, (2) attaches a copy of

20

the Expert’s current resume, (3) identifies the Expert’s current employer(s), (4)

21

identifies each person or entity from whom the Expert has received compensation or

22

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

23

professional services, including in connection with a litigation, at any time during

24

the preceding five years1, and (5) identifies (by name and number of the case, filing

25
26
27
28

1

If any of this information is subject to a confidentiality obligation to a thirdparty, then the Party seeking to disclose to the Expert shall provide whatever
information can be disclosed without violating any confidentiality agreements. The
Party seeking to disclose to the Expert shall also be available to meet and confer
13
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

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

2

offered expert testimony, including through a declaration, report, or testimony at a

3

deposition or trial, during the preceding five years.

4

(b) A Party that makes a request and provides the information specified in the

5

preceding respective paragraphs may disclose the subject Protected Material to the

6

identified Designated In-House Counsel or Expert unless, within five (5) court days

7

of delivering the request, the Party receives a written objection from the Designating

8

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

9

(c) A Party that receives a timely written objection must meet and confer with

10

the Designating Party to try to resolve the matter by agreement within five (5) court

11

days of the written objection. If no agreement is reached, the Party seeking to make

12

the disclosure to Designated In-House Counsel or the Expert may file a motion

13

seeking permission from the Court to do so. In addition, any such motion must be

14

accompanied by a competent certification describing the Parties’ efforts to resolve

15

the matter by agreement (i.e., the extent and the content of the meet and confer

16

discussions) and setting forth the reasons advanced by the Designating Party for its

17

refusal to approve the disclosure.

18

In any such proceeding, the Party opposing disclosure to Designated In-House

19

Counsel or the Expert shall bear the burden of proving that the risk of harm that the

20

disclosure would entail (under the safeguards proposed) outweighs the Receiving

21

Party’s need to disclose the Protected Material to its Designated In-House Counsel

22

or Expert.

23

9.

SOURCE CODE

24

Given the particularly sensitive nature of source code, additional protections

25

for source code are warranted. In addition to all other restrictions and protections,

26
27
28

with the Designating Party to substantiate, to the extent possible, the confidential
nature of such engagements.
14
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

the following additional restrictions and protections shall govern source code

2

designated as “HIGHLY CONFIDENTIAL – SOURCE CODE”:
(a)

3

only those persons qualified to receive “HIGHLY CONFIDENTIAL –

4

SOURCE CODE” material under section 8.3 above shall be permitted

5

access to source code disclosures;
(b)

6

the Producing Party shall make its source code available electronically

7

and in the form as kept in the ordinary course of business or other

8

format suitable for review;
(c)

9

the source code shall be made available for inspection on the premises

10

of where such code is stored in the ordinary course of business or at the

11

offices of producing counsel, and the source code shall be stored on a

12

secured computer in a secured room without Internet access or network

13

access to other computers, and the Receiving Party shall not copy,

14

remove, or otherwise transfer any portion of the source code onto any

15

recordable media or recordable device.

16

visually monitor the activities of the Receiving Party’s representatives

17

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

18

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

19

(d)

The Producing Party may

the host computer shall be made available during normal business

20

hours, 9 am to 5 pm local time, Monday through Friday (excluding

21

holidays);

22

(e)

counsel for the Receiving Party that requests a review of source code

23

must give at least five (5) business days’ notice to counsel for the

24

Producing Party that it will be sending specified individuals authorized

25

under section 9(a) above to review the source code made available on

26

the host computer;

27

(f)

28

the Receiving Party’s outside counsel and retained experts or
consultants otherwise allowed to view the source code shall be entitled
15
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

to take notes relating to the source code provided on a standalone

2

laptop or on a paper notepad, however, no one may copy more than

3

five (5) continuous lines of source code into said notes. No copies of

4

all or any portion of the source code may leave the room in which the

5

source code is inspected except as otherwise provided herein. Further,

6

no other written or electronic record of the source code is permitted

7

except as otherwise provided herein. Outside vendors shall not be used

8

to copy the source code. During the remainder of discovery, no one

9

from the Producing Party shall be permitted to log on to, boot up or
otherwise access any files on the secured computer.

10
(g)

11

the host computer shall be connected to a printer in the room with pre-

12

marked paper for local printing and review.

13

conclusion of each day of review, the Producing Party shall provide the

14

copies to the Receiving Party by the conclusion of the daily review

15

session;
(h)

16

In this event, at the

the Producing Party will produce source code in computer-searchable

17

format on the secured computer(s) as described above. At a minimum,

18

the search utilities or tools should provide the ability to (i) view,

19

search, and line-number any source file, (ii) search for a given pattern

20

of text through a number of files, and (iii) compare two files and

21

display their differences. The Receiving Party, at its own expense,

22

may request that the Producing Party install software on a source code

23

review computer to perform searches of the Producing Party’s source

24

code. Timely requests for the installation of such search software will

25

not be unreasonably denied so long as the requested search software is

26

compatible with the operating system, and other software necessary to

27

make the source code available for inspection, installed on a source

28

code review computer, does not prevent or impede the Receiving
16
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

Party’s access to the source code produced for inspection on a source

2

code review computer and does not circumvent any of the security

3

features enabled on a source code review computer (e.g. enable

4

connection and use of a USB thumb drive);
(i)

5

in no event is the Receiving Party entitled to receive from the

6

Producing Party electronic copies of desired portions of the disclosed

7

source code; furthermore no electronic copies of any portion of source

8

code may be made;
(j)

9

counsel for the Receiving Party may make limited paper copies of

10

excerpts of “HIGHLY CONFIDENTIAL – SOURCE CODE”

11

material, such paper copies to be used as an exhibit to testimony,

12

motion, expert report or disclosure, or otherwise as reasonably

13

necessary in connection with the litigation, but only if and to the extent

14

believed in good faith to be necessary. Any paper copies of source

15

code, if filed with the Court, shall be filed in accordance with section

16

14.3;
(k)

17

use of physical copies containing “HIGHLY CONFIDENTIAL –

18

SOURCE CODE” material for depositions, motions and trial shall only

19

occur in a manner that assures disclosure of such information only to

20

those permitted access to it under this Stipulated Protective Order and

21

only on a need-to-know and relevancy basis. Court reporters and/or

22

videographers

23

CONFIDENTIAL – SOURCE CODE” material;

24

(l)

shall

not

retain

copies

of

any

“HIGHLY

counsel for the Receiving Party shall keep a log of the working paper

25

copies of the source code, when the copies were made, to whom they

26

were provided, and when they were provided. Upon written request by

27

the Producing Party, the Receiving Party must provide a copy of the

28

log to the Producing Party within a reasonable time. At the final
17
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

conclusion of the litigation, the Receiving Party’s designated and

2

identified expert(s) must certify in writing that all copies of the source

3

code were returned to the counsel that provided the information.

4

Furthermore, counsel for the Receiving Party must provide to counsel

5

for the Producing Party the log and all paper copies of the source code

6

in possession of counsel, with the exception of any documents retained

7

in accordance with section 15;
(m)

8

the Producing Party may challenge the amount of source code

9

requested in hard copy form pursuant to the dispute resolution

10

procedure and timeframes set forth in section 7 whereby the Producing

11

Party is the “Designating Party” and the Receiving Party is the

12

“Challenging Party” for purposes of dispute resolution;
(n)

13

the Receiving Party shall maintain a record of any individual who has

14

inspected any portion of the source code in electronic or paper form.

15

The Receiving Party shall maintain all paper copies of any printed

16

portions of the source code in a secured, locked area;
(o)

17

subject to the restrictions of this Stipulated Protective Order, counsel

18

for the Receiving Party and the designated and identified expert(s) who

19

are allowed access to source code designated as “HIGHLY

20

CONFIDENTIAL – SOURCE CODE” under this Stipulated Protective

21

Order agree that the text of the source code or portions of the code

22

itself shall not be disclosed to any other person at any time other than

23

otherwise provided under this Stipulated Protective Order and the

24

information gained from access to or review of the source code shall

25

not be used for any purpose or reasons other than for the purposes of

26

this litigation.

27
28
18
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

10.

2
3
4
5
6

11
12

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or
“HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must:
(a) promptly notify in writing all other Parties, including the Designating
Party. Such notification shall include a copy of the subpoena or court order;
(b) promptly notify 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 subject to this Stipulated Protective Order.

(c) cooperate with respect to all reasonable procedures sought to be pursued
by the Designating Party whose Protected Material may be affected.

15
16
17
18

Such notification shall

include a copy of this Stipulated Protective Order; and

13
14

ORDERED

that compels disclosure of any information or items designated in this action as

9
10

OR

If a Party is served with a subpoena or a court order issued in other litigation

7
8

PROTECTED
MATERIAL
SUBPOENAED
PRODUCED IN OTHER LITIGATION

The Designating Party shall bear the burden and expense of seeking
protection in that court of its confidential material – and nothing in these provisions
should be construed as authorizing or encouraging a Receiving Party in this action
to disobey a lawful directive from another court.

19
20

11.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION

21

11.1 The terms of this Stipulated Protective Order are applicable to

22

information produced by a Non-Party in this action and designated as

23

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

24

ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

25

“HIGHLY CONFIDENTIAL – SOURCE CODE.” Such information produced by

26

Non-Parties in connection with this litigation is protected by the remedies and relief

27
28
19
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

provided by this Stipulated Protective Order. Nothing in these provisions should be

2

construed as prohibiting a Non-Party from seeking additional protections.

3

11.2 In the event that a Party appears to be required, by a valid discovery

4

request, to produce a Non-Party’s confidential information in its possession, and the

5

Party is subject to an agreement with the Non-Party not to produce the Non-Party’s

6

confidential information, then the Party shall:
(a)

7

promptly notify in writing the party requesting production and the Non-

8

Party that some or all of the information requested is subject to a confidentiality

9

agreement with a Non-Party;
(b)

10

promptly provide the Non-Party with a copy of the Stipulated

11

Protective Order in this litigation, the relevant discovery request(s), and a

12

reasonably specific description of the information requested; and
(c)

13
14

make the information requested available for inspection by the Non-

Party.

15

11.3 If the Non-Party fails to object or seek a protective order from this

16

court within 14 days of receiving the notice and accompanying information, the

17

Receiving Party may produce the Non-Party’s confidential information responsive

18

to the discovery request. If the Non-Party timely seeks a protective order, the

19

Receiving Party shall not produce any information in its possession or control that is

20

subject to the confidentiality agreement with the Non-Party before a determination

21

by the Court. Absent a Court order to the contrary, the Non-Party shall bear the

22

burden and expense of seeking protection in this Court of its Protected Material.

23

12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

24

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

25

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

26

Stipulated Protective Order, the Receiving Party must immediately (a) notify in

27

writing the Designating Party of the unauthorized disclosures, (b) use its best efforts

28

to retrieve all unauthorized copies of the Protected Material, (c) inform the person or
20
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

persons to whom unauthorized disclosures were made of all the terms of this

2

Stipulated Protective Order, and (d) request such person or persons to execute the

3

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

4

A.
13.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19

Nothing in this Stipulated Protective Order shall require production of
Discovery Material that a Party contends is protected from disclosure by the
attorney-client privilege, the work product immunity, common interest doctrine, or
other privilege, doctrine, right, or immunity (collectively “Privileged Information”).
In accordance with Rule 502 of the Federal Rules of Evidence, the Parties hereby
stipulate, and the Court orders, that no inadvertent or unintentional production of
Privileged Information shall prejudice the Producing Party or otherwise constitute a
waiver or estoppel as to any such privilege, doctrine, right or immunity. Any Party
that inadvertently produces Privileged Information may obtain the return of those
materials by promptly notifying the recipient(s) and expressly articulating the basis
for the asserted privilege or immunity. The recipient(s) shall gather and return all
copies of the inadvertently produced Privileged Information to the Producing Party,
or certify to the Producing Party that they have been destroyed and/or deleted.
14.

20
21

24
25
26
27

MISCELLANEOUS
14.1 Right to Further Relief. Nothing in this Stipulated Protective Order

abridges the right of any person to seek its modification by the Court in the future.

22
23

NO WAIVER OF PRIVILEGE; INADVERTENT PRODUCTION OF
PRIVILEGED OR OTHERWISE PROTECTED MATERIAL

14.2 Right to Assert Other Objections. By stipulating to the entry of this
Stipulated Protective Order no Party waives any right it otherwise would have to
object to disclosing or producing any information or item on any ground not
addressed in this Stipulated Protective Order. Similarly, no Party waives any right to
object on any ground to use in evidence of any of the material covered by this
Stipulated Protective Order.

28
21
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

14.3 Filing Protected Material. In the event any of the parties decides to file

2

or submit to the Court any document or material designated as Protected Material,

3

unless otherwise agreed to in writing by the Designating Party, the party intending

4

to make such a filing shall request in accordance with Local Rule 79-5.1 that the

5

Court permit such document containing or making reference to Protected Material to

6

be filed under seal. In addition the Designating Party shall have the right within

7

three (3) court days to file a supplemental motion to seal or otherwise show cause

8

for retaining the Protected Material under seal. Where possible, only the portion of

9

the filing that contains Protected Material should be filed under seal, and the parties

10

agree to work in good faith prior to the Court ruling to use redactions, stipulations of

11

fact or other means to avoid the need of making Protected Material publicly

12

available and avoid the need for any motion to seal or supplemental filing. Should

13

the Court deny any motion to seal or any supplemental motion filed by the

14

Designating party, the parties shall meet and confer within one (1) court day in a

15

further attempt to avoid the need for publicly filing Protected Material; if no

16

resolution is reached within that time, nothing shall preclude the party from filing

17

such documents in the ordinary manner or the Court from unsealing the Protected

18

Materials already filed, unless a writ has been taken.

19

14.4 Examination of Witnesses Using Protected Material. Except as the

20

Court otherwise orders, any person may be examined as a witness at a deposition,

21

hearing or trial and may testify concerning all information designated as

22

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

23

ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

24

“HIGHLY CONFIDENTIAL – SOURCE CODE” of which such person has prior

25

personal knowledge. Specifically, but without limitation:
(a)

26

A present director, officer, and/or employee of a Producing Party may

27

be examined and may testify concerning all information designated as

28

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
22
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

2

“HIGHLY CONFIDENTIAL – SOURCE CODE” which has been produced by that

3

Producing Party;

4

(b)

A former director, officer, agent and/or employee of a Producing Party

5

may be interviewed, examined and may testify concerning all information

6

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

7

EYES ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES

8

ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” of which he or she

9

has prior personal knowledge; and
(c)

10

Non-Parties may be examined or testify concerning any document

11

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

12

EYES ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES

13

ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” if it appears on its

14

face or from other documents or testimony to have been received from or

15

communicated to the Non-Party as a result of any contact or relationship with the

16

Producing Party, or a representative of such Producing Party. Any person other than

17

the witness, his or her attorney(s), and any person qualified to receive documents

18

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

19

EYES ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES

20

ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” under this Stipulated

21

Protective Order must be excluded from the portion of the examination concerning

22

such information, unless the Producing Party consents to such persons being present

23

at the examination. If the witness is represented by an attorney who is not permitted

24

under this Stipulated Protective Order to receive such information, then prior to the

25

examination, the attorney must be requested to provide a Confidentiality Agreement

26

in the form of Attachment A to this Stipulated Protective Order. If such attorney

27

refuses to sign such a Confidentiality Agreement, the Parties, by their attorneys,

28

may prior to the examination, jointly seek a protective Order from the Court
23
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

prohibiting such attorney from disclosing such documents designated as

2

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

3

ONLY,” “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY,” or

4

“HIGHLY CONFIDENTIAL – SOURCE CODE”.

5

15.

FINAL DISPOSITION

6

Within 60 days after the Final Disposition of this action (as defined in section

7

5) each Receiving Party must return all Protected Material to the Producing Party or

8

destroy such material. As used in this subdivision, “all Protected Material” includes

9

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

10

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

11

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

12

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

13

the 60-day deadline that (1) identifies (by category, where appropriate) all the

14

Protected Material that was returned or destroyed and (2) affirms that the Receiving

15

Party has not retained any copies, abstracts, compilations, summaries or any other

16

format reproducing or capturing any of the Protected Material. Notwithstanding this

17

provision, Counsel are entitled to retain an archival copy of all pleadings, motion

18

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

19

deposition and trial exhibits, expert reports, attorney work product, and consultant

20

and expert work product, even if such materials contain Protected Material. Any

21

such archival copies that contain or constitute Protected Material remain subject to

22

this Stipulated Protective Order as set forth in section 5 (DURATION).

23

PURSUANT TO STIPULATION, IT IS SO ORDERED.

24
25

Dated: December 17, 2014

26
_________________________________
United States District Judge

27
28

24
ORDER ON STIPULATED PROTECTIVE ORDER

.

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

4

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

5

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

6

was issued by the United States District Court for the Central District of California

7

on [date] in the case of Mitsubishi Electric Corp. et al. v. Sceptre, Inc., Case No.

8

2:14-cv-04994-ODW (AJWx). I agree to comply with and to be bound by all the

9

terms of this Stipulated Protective Order, and I understand and acknowledge that

10

failure to so comply could expose me to sanctions and punishment in the nature of

11

contempt.

12

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

13

or entity except in strict compliance with the provisions of this Stipulated Protective

14

Order.

I solemnly promise that I will not disclose in any manner any

15

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

16

for the Central District of California for the purpose of enforcing the terms of this

17

Stipulated Protective Order, even if such enforcement proceedings occur after

18

termination of this action.

19

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

20

_______________________________________ [print or type full address and

21

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

22

this action or any proceedings related to enforcement of this Stipulated Protective

23

Order.

24

Date: _________________________________

25

City and State where sworn and signed: _________________________________

26

Printed name: ______________________________

27

Signature: _________________________________

28
25
ORDER ON STIPULATED PROTECTIVE ORDER

.