DTS, Inc. et al v. Nero AG et al

Filing 55

PROTECTIVE ORDER by Magistrate Judge Patrick J. Walsh 54 . SEE ORDER. (im)

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DURIE TANGRI LLP
RYAN M. KENT (SBN 220441)
[e-mail]
SONALI D. MAITRA (SBN 254896)
[e-mail]
ZAC A. COX (SBN 283535)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415-236-6300
Attorneys for Plaintiffs and Counterdefendants
DTS, INC. and DTS LICENSING LTD.

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GLASER WEIL FINK HOWARD AVCHEN & SHAPIRO LLP
ADRIAN M. PRUETZ (SBN 118215)
[e-mail]
10 ANDREW Y. CHOUNG (SBN 203192)
[e-mail]
11 CHARLES KOOLE (SBN 259997)
[e-mail]
12 10250 Constellation Boulevard, 19th
Los Angeles, CA 90067
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Attorneys for Defendants and Counterclaimants
NERO AG and NERO INC.

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IN THE UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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DTS, INC. and DTS LICENSING LTD.,
Plaintiffs,

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v.
NERO AG and NERO INC.,

Case No. 2:14-cv-09791-RGK (PJWx)
STIPULATED PROTECTIVE ORDER
FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION
AND/OR TRADE SECRETS

Defendants.
23 NERO AG and NERO INC.,
Counterclaimants,
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v.
DTS, INC. and DTS LICENSING LTD.,
Counterdefendants.

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be

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warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the

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following Stipulated Protective Order. The parties acknowledge that this Order does not

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confer blanket protections on all disclosures or responses to discovery and that the

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protection it affords from public disclosure and use extends only to the limited

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information or items that are entitled to confidential treatment under the applicable legal

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principles.

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2.

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DEFINITIONS
2.1.

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

information or items under this Order.

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2.2.

“CONFIDENTIAL” Information or Items: information (regardless of how

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

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Federal Rule of Civil Procedure 26(c).

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2.3.

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

Counsel (as well as their support staff).

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2.4.

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

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items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”

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

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CONFIDENTIAL – SOURCE CODE.”

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2.5.

Disclosure or Discovery Material: all items or information, regardless of

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

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

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disclosures or responses to discovery in this matter.

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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2.6.

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 as an

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

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Party or of a Party’s competitor, and (3) at the time of retention, is not anticipated to

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become an employee of a Party or of a Party’s competitor.

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2.7.

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items: extremely sensitive “Confidential Information or Items,” disclosure

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of which to another Party or Non-Party would create a substantial risk of serious harm that

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could not be avoided by less restrictive means.

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2.8.

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:

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extremely sensitive “Confidential Information or Items” representing computer code and

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associated comments and revision histories, formulas, engineering specifications, or

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schematics that define or otherwise describe in detail the algorithms or structure of

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

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create a substantial risk of serious harm that could not be avoided by less restrictive

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means.

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2.9.

House Counsel does not include Outside Counsel of Record or any other outside counsel.

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House Counsel: attorneys who are employees of a party to this action.

2.10.

Non-Party: any natural person, partnership, corporation, association, or

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

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2.11.

Outside Counsel of Record: attorneys who are not employees of a party to

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this action but are retained to represent or advise a party to this action and have appeared

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in this action on behalf of that party or are affiliated with a law firm which has appeared

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on behalf of that party.

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2.12.

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

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employees, consultants, retained experts, and Outside Counsel of Record (and their

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support staffs).

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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2.13.

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

Discovery Material in this action.

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2.14.

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) and

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their employees and subcontractors.

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2.15.

Protected Material: any Disclosure or Discovery Material that is

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

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EYES ONLY” or as “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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2.16.

Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

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

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Material (as defined above), but also (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected

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Material; and (3) any testimony, conversations, or presentations by Parties or their

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Counsel that might reveal Protected Material. However, the protections conferred by this

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Stipulation and Order do not cover the following information: (a) any information that is

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in the public domain at the time of disclosure to a Receiving Party or becomes part of the

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public domain after its disclosure to a Receiving Party as a result of publication not

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involving a violation of this Order, including becoming part of the public record through

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trial or otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who

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obtained the information lawfully and under no obligation of confidentiality to the

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Designating Party. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed

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by this Order shall remain in effect until a Designating Party agrees otherwise in writing

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or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)

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

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

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

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applications for extension of time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

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 this

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Order must take care to limit any such designation to specific material that qualifies under

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the appropriate standards. To the extent it is practical to do so, the Designating Party must

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designate for protection only those parts of material, documents, items, or oral or written

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communications that qualify – so that other portions of the material, documents, items, or

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communications for which protection is not warranted are not swept unjustifiably within

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the ambit of this Order.

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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 level

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

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parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or

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ordered, Protected Material that qualifies for protection under this Order must be clearly

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so designated before the material is disclosed or produced. Designation in conformity
with this Order requires:
(a) for information in documentary form (e.g., paper or electronic
documents, but excluding transcripts of depositions or other pretrial or trial proceedings),

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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that the Producing Party affix the legend “CONFIDENTIAL” or “HIGHLY

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

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SOURCE CODE” to each page that contains protected material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also must

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clearly identify the protected portion(s) (e.g., by making appropriate markings in the

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margins) and must specify, for each portion, the level of protection being asserted.

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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 and

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party

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has identified the documents it wants copied and produced, the Producing Party must

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

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Then, before producing the specified documents, the Producing Party must affix the

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appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE) to

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each page that contains Protected Material. If only a portion or portions of the material on

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a page qualifies for protection, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins) and must

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specify, for each portion, the level of protection being asserted.

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(b) for testimony given in deposition or in other pretrial or trial

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proceedings, that the Designating Party identify on the record, before the close of the

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deposition, hearing, or other proceeding, all protected testimony and specify the level of

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protection being asserted. When it is impractical to identify separately each portion of

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testimony that is entitled to protection and it appears that substantial portions of the

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testimony may qualify for protection, the Designating Party may invoke on the record

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(before the deposition, hearing, or other proceeding is concluded) a right to have up to 14

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days to identify the specific portions of the testimony as to which protection is sought and
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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to specify the level of protection being asserted. Only those portions of the testimony that

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are appropriately designated for protection within the 14 days shall be covered by the

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provisions of this Stipulated Protective Order. Alternatively, a Designating Party may

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specify, at the deposition or up to 14 days afterwards if that period is properly invoked,

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that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Parties shall make reasonable efforts to give the other parties notice if they expect a

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

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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 or at the portions of those proceedings that may include Protected Material.

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The use of a document as an exhibit at a deposition shall not in any way affect its

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designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the title

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

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

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Protected Material and the level of protection being asserted by the Designating Party.

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

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transcript that is prepared before the expiration of a 14-day period for designation shall be

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treated during that period as if it had been designated “CONFIDENTIAL” in its entirety

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unless otherwise requested by the Designating Party. After the expiration of that period,

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the transcript shall be treated only as actually designated.

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(c) for information produced in some form other than documentary and

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for any other tangible items, 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” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. If only a portion or
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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portions of the information or item warrant protection, the Producing Party, to the extent

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practicable, shall identify the protected portion(s) and specify the level of protection being

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asserted. Any source code provided under the source code inspection procedures outlined

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in Paragraph 8 shall be deemed HIGHLY CONFIDENTIAL – SOURCE CODE—

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regardless of any markings on the container or containers in which the source code is

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stored.

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5.3

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 the

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Designating Party’s right to secure protection under this Order for such material. Upon

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timely correction of a designation, the Receiving Party must make reasonable efforts to

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assure that the material is treated in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1.

Timing of Challenges. Any Party or Non-Party may challenge a

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designation of confidentiality at any time. Unless a prompt challenge to a Designating

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Party’s confidentiality designation is necessary to avoid foreseeable, substantial

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unfairness, unnecessary economic burdens, or a significant disruption or delay of the

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litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.

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6.2.

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 and

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

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been made, the written notice must recite that the challenge to confidentiality is being

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made in accordance with this specific paragraph of the Protective Order. The parties shall

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attempt to resolve each challenge in good faith and must begin the process by conferring

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directly (in voice to voice dialogue; other forms of communication are not sufficient)

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within 14 days of the date of service of notice. In conferring, the Challenging Party must

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explain the basis for its belief that the confidentiality designation was not proper and must

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give the Designating Party an opportunity to review the designated material, to reconsider
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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

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

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

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

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manner.

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6.3.

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Challenging Party may file and serve a motion to challenge

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confidentiality within 21 days of the initial notice of challenge or within 14 days of the

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parties agreeing that the meet and confer process will not resolve their dispute, whichever

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is earlier. Each such motion must be accompanied by a competent declaration affirming

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that the movant has complied with the meet and confer requirements imposed in the

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preceding paragraph.

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

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Designating Party. All parties shall continue to afford the material in question the level of

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

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rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1.

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 case

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

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

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described in this Order. When the litigation has been terminated, a Receiving Party must

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comply with the provisions of section 14 below (FINAL DISPOSITION).

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

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

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this Order.

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7.2.

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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may disclose any information or item designated “CONFIDENTIAL” only to:

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

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as 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 House Counsel) of

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

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

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(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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

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and 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 A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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

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

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court. Pages of transcribed deposition testimony or exhibits to depositions that reveal

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Protected Material must be separately bound by the court reporter and may not be

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disclosed to anyone except as permitted under this Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3.

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items.

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Unless 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” or “HIGHLY CONFIDENTIAL –

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SOURCE CODE” only to:
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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

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as 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) Experts of the Receiving Party (1) to whom disclosure is reasonably

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necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a),

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below, have been followed;

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(c) the court and its personnel;

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(d) 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 and

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

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(e) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.4.

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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

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SOURCE CODE” Information or Items to Experts.

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(a) Unless otherwise ordered by the court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information

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or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph

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7.3(b) first must make a written request to the Designating Party that (1) identifies the

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general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE” information that the Receiving Party

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seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and

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the city and state of his or her primary residence, (3) attaches a copy of the Expert’s

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

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or entity from whom the Expert has received compensation or funding for work in his or

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her areas of expertise or to whom the expert has provided professional services, including
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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in connection with a litigation, at any time during the preceding five years, and (6)

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identifies (by name and number of the case, filing date, and location of court) any

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litigation in connection with which the Expert has offered expert testimony, including

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through a declaration, report, or testimony at a deposition or trial, during the preceding

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five years.

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

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preceding respective paragraphs may disclose the subject Protected Material to the

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identified Expert unless, within 10 days of delivering the request, the Party receives a

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written objection from the Designating Party. Any such objection must set forth in detail

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the grounds on which it is based.

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

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Designating Party (through direct voice to voice dialogue) to try to resolve the matter by

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agreement within seven days of the written objection. If no agreement is reached, the

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Party seeking to make the disclosure to the Expert may file a motion seeking permission

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from the court to do so. Any such motion must describe the circumstances with

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specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably

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necessary, assess the risk of harm that the disclosure would entail, and suggest any

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additional means that could be used to reduce that risk. In addition, any such motion must

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be accompanied by a competent declaration describing the parties’ efforts to resolve the

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

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and setting forth the reasons advanced by the Designating Party for its refusal to approve

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the disclosure.

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In any such proceeding, the Party opposing disclosure to the Expert shall bear the

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burden of proving that the risk of harm that the disclosure would entail (under the

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safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

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Material to its Expert.

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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8.

SOURCE CODE
(a)

To the extent production of source code becomes necessary in this case, a

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Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE

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

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(b)

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

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CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY” information, and may be disclosed only to the

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individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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information may be disclosed, as set forth in Paragraphs 7.3 and 7.4.

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(c)

Any source code produced in discovery shall be made available for

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inspection, in a format allowing it to be reasonably reviewed and searched, during normal

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business hours or at other mutually agreeable times, at an office of the Producing Party’s

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counsel or using a third party who provides secure hosting for remote source code

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inspection, at the election of the Receiving Party. The source code shall be made available

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for inspection on a secured computer in a secured room, and the Receiving Party shall not

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

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media or recordable device. The third party hosting service shall take appropriate

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measures to ensure that there is no unauthorized recording, copying or transmission of the

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source code.

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(d)

The Receiving Party may request paper copies of limited portions of source

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code that are reasonably necessary for the preparation of court filings, pleadings, expert

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reports, or other papers, or for deposition or trial, but shall not request paper copies for the

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purposes of reviewing the source code other than electronically as set forth in paragraph

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(c) in the first instance. The Producing Party shall provide all such source code in paper

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form including bates numbers and the label “HIGHLY CONFIDENTIAL - SOURCE

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CODE.” The Producing Party may challenge the amount of source code requested in hard

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copy form pursuant to the dispute resolution procedure and timeframes set forth in

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Paragraph 6.
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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(e)

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

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

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shall maintain all paper copies of any printed portions of the source code in a secured,

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locked area. The Receiving Party shall not create any electronic or other images of the

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paper copies and shall not convert any of the information contained in the paper copies

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into any electronic format. The Receiving Party shall only make additional paper copies if

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such additional copies are (1) necessary to prepare court filings, pleadings, or other papers

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(including a testifying expert’s expert report) or (2) necessary for deposition. Any paper

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copies used during a deposition shall be retrieved by the Producing Party at the end of

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each day and must not be given to or left with a court reporter or any other unauthorized

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individual.

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9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

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

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

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

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“HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must:

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(a) promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order;

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(b) promptly notify in writing the party who caused the subpoena or order to issue

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in the other litigation that some or all of the material covered by the subpoena or order is

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subject to this Protective Order. Such notification shall include a copy of this Stipulated

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Protective Order; and

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(c) cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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“HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court

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from which the subpoena or order issued, unless the Party has obtained the Designating

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Party’s permission. The Designating Party shall bear the burden and expense of seeking

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protection in that court of its confidential material – and nothing in these provisions

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should be construed as authorizing or encouraging a Receiving Party in this action to

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disobey a lawful directive from another court.

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10.

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

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(a)

The terms of this Order are applicable to information produced by a Non-

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Party in this action and designated as “CONFIDENTIAL” or “HIGHLY

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

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SOURCE CODE.” Such information produced by Non-Parties in connection with this

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litigation is protected by the remedies and relief provided by this Order. Nothing in these

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provisions should be construed as prohibiting a Non-Party from seeking additional

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protections.

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(b)

In the event that a Party is required, by a valid discovery request, to produce

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a Non-Party’s confidential information in its possession, and the Party is subject to an

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agreement with the Non-Party not to produce the Non-Party’s confidential information,

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then the Party shall:

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1. promptly notify in writing the Requesting Party and the Non-Party that

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some or all of the information requested is subject to a confidentiality agreement with a

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Non-Party;

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

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

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specific description of the information requested; and

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3. make the information requested available for inspection by the NonParty.
(c)

If the Non-Party fails to object or seek a protective order from this court
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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within 14 days of receiving the notice and accompanying information, the Receiving Party

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may produce the Non-Party’s confidential information responsive to the discovery

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request—provided that this does not violate the terms and conditions of any agreement

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with the Non-Party (which will trump all provisions outlined in this Paragraph 10). If the

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Non-Party timely seeks a protective order, the Receiving Party shall not produce any

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information in its possession or control that is subject to the confidentiality agreement

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with the Non-Party before a determination by the court. The Non-Party shall bear the

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

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11.

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

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

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

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

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

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

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person or persons to execute the “Acknowledgment and Agreement to Be Bound” that is

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attached hereto as Exhibit A.

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12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

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When a Producing Party gives notice to Receiving Parties that certain inadvertently

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

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the 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 an e-

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discovery order that provides for production without prior privilege review. Pursuant to

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Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the

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effect of disclosure of a communication or information covered by the attorney-client

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privilege or work product protection, the parties may incorporate their agreement in the

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stipulated protective order submitted to the court.
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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13.

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

person to seek its modification by the court in the future.

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

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

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or producing any information or item on any ground not addressed in this Stipulated

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Protective Order. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order.

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14.3 Filing Protected Material. Without written permission from the Designating

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Party or a court order secured after appropriate notice to all interested persons, a Party

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may not file in the public record in this action any Protected Material. A Party that seeks

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to file under seal any Protected Material must comply with the court’s local rules.

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14.

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FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in

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paragraph 4, each Receiving Party must return all Protected Material to the Producing

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

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

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

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

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(and, if not the same person or entity, to the Designating Party) by the 60-day deadline

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that (1) identifies (by category, where appropriate) all the Protected Material that was

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returned or 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 any of

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the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an

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archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,

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legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

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

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Protected Material. Any such archival copies that contain or constitute Protected Material
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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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remain subject to this Protective Order as set forth in Section 4.
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: July 27, 2015

DURIE TANGRI LLP

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/s/ Zac A. Cox
ZAC A. COX

By:
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Attorneys for Plaintiffs and Counterdefendants
DTS, INC. and DTS LICENSING LTD.

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Dated: July 27, 2015

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GLASER WEIL FINK HOWARD AVCHEN
& SHAPIRO LLP
By:

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/s/ Charles Koole
CHARLES KOOLE
Attorneys for Defendants and Counterclaimants
NERO AG and NERO INC.

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FILER’S ATTESTATION

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Pursuant to Civil L.R. 5-4.3.4, regarding signatures, I, Zac A. Cox, attest that

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concurrence in the filing of this document has been obtained.

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Dated: July 27, 2015

/s/ Zac A. Cox
ZAC A. COX

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: July 27, 2015

_________________________________________
Honorable Patrick J. Walsh
United States Magistrate Judge

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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EXHIBIT A

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ACKNOWLEDGMENT AND 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 that I

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

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

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[_______________] in the case of DTS, Inc. and DTS Licensing Ltd. v. Nero AG and Inc.,

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Case No. 2:14-CV-09791-RGK-VBK. I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and acknowledge that failure to

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so comply could expose me to sanctions and punishment in the nature of contempt. I

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solemnly promise that I will not disclose in any manner any information or item that is

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subject to this Stipulated Protective Order to any person or entity except in strict

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compliance with the provisions of this Order.

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

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

16

Protective Order, even if such enforcement proceedings occur after termination of this

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action.

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

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_______________________________________ [print or type full address and telephone

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number] as my California agent for service of process in connection with this action or

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any proceedings related to enforcement of this Stipulated Protective 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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Signature: __________________________________

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK

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CERTIFICATE OF SERVICE
I, Zac A. Cox, hereby certify that on July 27, 2015 the within document was filed

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with the Clerk of the Court using CM/ECF which will send notification of such filing( s)

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to the following; that the document was served on the following counsel as indicated; and

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that the document is available for viewing and downloading from CM/ECF.

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7

/s/ Zac A. Cox
ZAC A. COX

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STIPULATED PROTECTIVE ORDER / CASE NO. 2:14-CV-09791- RGK-VBK