The California Institute of Technology v. Broadcom Limited et al

Filing 101

STIPULATED PROTECTIVE ORDER by Judge George H. Wu re Stipulation for Order, #94 . (See document for specifics) (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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The CALIFORNIA INSTITUTE OF
TECHNOLOGY,

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Plaintiff,

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vs.

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BROADCOM LIMITED, BROADCOM
CORPORATION, AVAGO
TECHNOLOGIES LIMITED, APPLE
INC., AND CYPRESS
SEMICONDUCTOR CORPORATION,

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CASE NO. CV 16-3714-GW(AGRx)

Defendants.

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STIPULATED PROTECTIVE
ORDER
Ctrm: 9D, 350 West 1st Street
Judge: George H. Wu
[Proposed Order submitted
concurrently herewith]

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STIPULATED PROTECTIVE ORDER [PROPOSED]
CASE NO. 2:16-CV-3714-GW-AGRX

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Plaintiff California Institute of Technology (“Plaintiff”) and Defendants
Broadcom Limited, Broadcom Corporation, Avago Technologies Limited, Apple
Inc., and Cypress Semiconductor Corporation (“Defendants”) anticipate that
documents, testimony, and information containing or reflecting confidential,
proprietary, trade secret, and/or commercially sensitive information are likely to be
disclosed or produced during the course of discovery, initial disclosures, and
supplemental disclosures in this case, and request that the Court enter this Order
setting forth the conditions for treating, obtaining, and using such information.

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On December 29, 2016, the Court entered an Interim Protective Order that
was directed to the production of Source Code. (Dkt. No. 84.) The following
Protective Order is intended to govern all discovery in this case, including Source
Code, and supersedes and replaces the Interim Protective Order.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court
finds good cause for the following Stipulated Protective Order (“Order” or
“Protective Order”):
1.

PURPOSES AND LIMITATIONS
(a)

Protected Material designated under the terms of this Protective Order

shall be used by a Receiving Party solely for this case, and shall not be used
directly or indirectly for any other purpose whatsoever.
(b)

To the extent that any one of Defendants in this litigation provides

Protected Material under the terms of this Protective Order to Plaintiff, Plaintiff
shall not share that material with the other Defendants in this litigation, absent
express written permission from the producing Defendant or an order from the
Court. However, Plaintiff may share materials between Defendants if it is clear that
both Defendants have the information, e.g., an email between Broadcom and Apple
that is produced by Broadcom could be shared with Apple. This Order does not

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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confer any right to any one Defendant to access the Protected Material of any other
Defendant that they would not otherwise have access to.

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(c)

The Parties acknowledge that this Order does not confer blanket

protections on all disclosures during discovery, or in the course of making initial or
supplemental disclosures under Rule 26(a). Designations under this Order shall be
made with care and shall not be made absent a good faith belief that the designated
material satisfies the criteria set forth below. If it comes to a Producing Party’s
attention that designated material does not qualify for protection at all, or does not
qualify for the level of protection initially asserted, the Producing Party must
promptly notify all other Parties that it is withdrawing or changing the designation.
2.

DEFINITIONS
(a)

The following definitions apply to terms used in this Order:
(i)

“Discovery Material” means all items or information, including

from any non-party, regardless of the medium or manner generated, stored,
or maintained (including, among other things, testimony, transcripts, and
tangible things) that are produced, disclosed, or generated in connection with
discovery or Rule 26(a) disclosures in this case.
(ii)

“Outside Counsel” means (i) outside counsel who appear on the

pleadings as counsel for a Party and (ii) partners, associates, and staff of such
counsel to whom it is reasonably necessary to disclose or allow access to the
information for this litigation.
(iii)

“Patents-in-Suit” means U.S. Patent No. 7,116,710, U.S. Patent

No. 7,421,032, U.S. Patent No. 7,916,781, and U.S. Patent No. 8,284,833.
(iv)

“Party” means any party to this case, including all of its officers,

directors, employees and their support staffs.
(v)

“Producing Party” means any Party or non-party that discloses

or produces any Discovery Material in this case.
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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(vi)

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designated as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES

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ONLY – SOURCE CODE,” as provided for in this Order.

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published or publicly disseminated; and (ii) materials that show on their face

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they have been disseminated to the public.

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(vii) “Receiving Party” means any Party who receives Discovery

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Material from a Producing Party.

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(viii) “Source Code” means computer code, scripts, assembly,

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binaries, object code, source code listings and descriptions of source code,

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object code listings and descriptions of object code, and Hardware

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Description Language (HDL) or Register Transfer Level (RTL) files that

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describe the hardware design of any ASIC or other chip.
3.

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Protected

Material shall not include: (i) advertising materials that have been actually

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“Protected Material” means any Discovery Material that is

COMPUTATION OF TIME
The computation of any period of time prescribed or allowed by this Order

shall be governed by the provisions for computing time set forth in Federal Rule of
Civil Procedure 6.
4.

SCOPE
(a)

The protections conferred by this Order cover not only Discovery

Material governed by this Order as addressed herein, but also any information
copied or extracted therefrom, as well as all copies, excerpts, summaries, or
compilations thereof, plus testimony, conversations, or presentations by Parties or
their counsel in court or in other settings that might reveal Protected Material.
(b)

Nothing in this Protective Order shall prevent or restrict a Producing

Party’s own disclosure or use of its own Protected Material for any purpose, and
nothing in this Order shall preclude any Producing Party from showing its Protected
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STIPULATED PROTECTIVE ORDER [PROPOSED],
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Material to an individual who prepared or was involved in the preparation of the
Protected Material.

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(c)

to use any Protected Material in court or in any court filing with the consent of the
Producing Party or by order of the Court.

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(d)

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This Order is without prejudice to the right of any Party to seek further

or additional protection of any Discovery Material or to modify this Order in any
way, including, without limitation, an order that certain matter not be produced at
all.
5.

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Nothing in this Order shall be construed to prejudice any Party’s right

DURATION
Even after the termination of this case, the confidentiality obligations

imposed by this Order shall remain in effect until a Producing Party agrees
otherwise in writing or a court order otherwise directs.
6.

ACCESS TO AND USE OF PROTECTED MATERIAL
(a)

Basic Principles. All Protected Material shall be used solely for this

case or any related appellate proceeding, and not for any other purpose whatsoever,
including, without limitation, any other litigation, patent prosecution or acquisition,
patent reexamination, inter parties review, or reissue proceedings, or any business
or competitive purpose or function. Protected Material shall not be distributed,
disclosed, or made available to anyone except as expressly provided in this Order.
(b)

Patent Prosecution Bar. Absent the written consent of the Producing

Party, any person on behalf of the Plaintiff who receives one or more items
designated

“CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE
CODE” by a Defendant (“Barred Person”) shall not be involved, directly or
indirectly, in any of the following activities:

(i) preparing, prosecuting,

supervising, or otherwise assisting in the preparation or prosecution of any patent
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application related by claim of priority to any of the Patents-in-Suit; (ii) amending
any claim of any of the Patents-in-Suit; and (iii) advising on, consulting on,
preparing, prosecuting, drafting, editing, and/or amending of patent applications,
specifications, claims, and/or responses to office actions, or otherwise affecting the
scope of claims in patent applications relating to the functionality, operation, and
design of either Irregular Repeat Accumulate (“IRA”) or Low-Density Parity Check
(“LDPC”) error correction codes for integrated circuits used for wireless
communications, before any foreign or domestic agency, including the United
States Patent and Trademark Office. These prohibitions are not intended to and
shall not preclude counsel from participating in proceedings on behalf of a Party
challenging or defending the validity of any patent, including, but not limited to, as
part of any reexamination, inter partes review, or reissue proceedings, but Barred
Persons (including counsel for the Receiving Party) may not participate, directly or
indirectly, in drafting, amending, or altering the language of any patent claim(s) in
any such proceeding.

These prohibitions shall begin when access to

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL –
OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” materials are first
received by the Barred Person, and shall end two (2) years after the final resolution
of this action, including all appeals. Nothing in this Protective Order shall prevent
any attorney from sending Prior Art to persons involved in prosecuting patent
applications for purposes of ensuring that such Prior Art is submitted to the U.S.
Patent and Trademark Office (or any similar agency of a foreign government) in
compliance with any duty of candor. Nothing in this paragraph shall prohibit any
attorney of record in this litigation from discussing any aspect of this case that is
reasonably necessary for the prosecution or defense of any claim or counterclaim in
this litigation.

This Prosecution Bar applies to each individual reviewing the

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL –
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OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” material and does not
impute to the law firm, institution, or company who employs the individual.
(c)

Secure Storage, No Export. Protected Material must be stored and

maintained by a Receiving Party at a location in the United States and in a secure
manner that ensures that access is limited to the persons authorized under this
Order. To ensure compliance with applicable United States Export Administration
Regulations, Protected Material may not be exported outside the United States or
released to a foreign national (even if within the United States).
(d)

Legal Advice Based on Protected Material.

Nothing in this

Protective Order shall be construed to prevent Outside Counsel or in-house counsel
for a Receiving Party from advising their clients with respect to this case based in
whole or in part upon Protected Materials, provided counsel does not (i) violate
Section (b) or (ii) disclose the Protected Material itself except as provided in this
Order.
(e)

Limitations.

Nothing in this Order shall restrict in any way a

Producing Party’s use or disclosure of its own Protected Material. Nothing in this
Order shall restrict in any way the use or disclosure of Discovery Material by a
Receiving Party: (i) that is or has become publicly known through no fault of the
Receiving Party; (ii) that is lawfully acquired by or known to the Receiving Party
independent of the Producing Party; (iii) previously produced, disclosed and/or
provided by the Producing Party to the Receiving Party or a non-party without an
obligation of confidentiality and not by inadvertence or mistake; (iv) with the
consent of the Producing Party; or (v) pursuant to order of the Court.
(f)

Cross-Production of Defendant Confidential Material.

No

Defendant is required to produce its Protected Material to any other Defendant or
Defendants, but nothing in this Order shall preclude such production. To the extent
a Defendant produces its Protected Material to any other Defendant or Defendants,
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all Parties shall be notified of such production. Notwithstanding the provisions of
this Protective Order, Plaintiff shall not disclose one Defendant’s Protected
Material to any other Defendant or Defendants through Court filings, oral argument
in Court, expert reports, depositions, discovery requests, discovery responses, or
any other means, without the express prior written consent of the Defendant that
produced the Protected Material, which shall not be unreasonably withheld.
Nothing herein prevents Plaintiff from relying on or otherwise using one
Defendant’s Protected Material in its case against any other Defendant. Nothing
herein prevents Plaintiff from serving Defendants’ Outside Counsel with or
submitting under seal to the Court any filings, pleadings, expert reports, discovery,
letters, or other submissions that include Protected Material from more than one
Defendant. To the extent such material is served on Defendants’ Outside Counsel
or submitted under seal to the Court, it shall be the responsibility of Defendants’
Outside Counsel to prepare redacted versions of such documents for each
Defendant, to the extent Defendants’ Outside Counsel deems necessary.
7.

DESIGNATING PROTECTED MATERIAL
(a)

Available Designations.

Any Producing Party may designate

Discovery Material with any of the following designations, provided that it meets
the requirements for such designations as provided for herein: “CONFIDENTIAL,”
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL –
OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE.”
(b)

Written Discovery and Documents and Tangible Things. Written

discovery, documents (which include “electronically stored information,” as that
phrase is used in Federal Rule of Procedure 34), and tangible things that meet the
requirements for the confidentiality designations listed in Paragraph 7(a) may be so
designated by placing the appropriate designation on every page of the written
material prior to production. For digital files being produced, the Producing Party
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may mark each viewable page or image with the appropriate designation, and mark
the medium, container, and/or communication in which the digital files were
contained. In the event that original documents are produced for inspection, the
original documents shall be presumed “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” during the inspection and re-designated, as appropriate during the copying
process.
(c)

Native Files. Where electronic files and documents are produced in

native electronic format, such electronic files and documents shall be designated for
protection under this Order by appending to the file names or designators
information

indicating

whether

the

file

contains

“CONFIDENTIAL,”

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL –
OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” material, or shall
use any other reasonable method for so designating Protected Materials produced in
electronic format.

When electronic files or documents are printed for use at

deposition, in a court proceeding, or for provision in printed form to an expert or
consultant pre-approved pursuant to Paragraph 12 below, the party printing the
electronic files or documents shall affix a legend to the printed document
corresponding to the designation of the Designating Party and including the
production number and designation associated with the native file. The Producing
Party reserves the right to object to the use in this litigation of a .tiff, .pdf or other
image format version of a document produced in native file format if consent of the
Producing Party was not obtained prior to use and the Producing Party has reason to
believe information has been altered.
(d)

Depositions and Testimony. Parties or testifying persons or entities

may designate depositions and other testimony with the appropriate designation by
indicating on the record at the time the testimony is given or by sending written
notice of how portions of the transcript of the testimony are designated within thirty
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(30) days of receipt of the transcript of the testimony. If no indication on the record
is made, all information disclosed during a deposition shall be deemed
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the time within which it
may be appropriately designated as provided for herein has passed. In that case,
any Party that wishes to disclose the transcript, or information contained therein,
may provide written notice of its intent to treat the transcript as non-confidential,
after which time, any Party that wants to maintain any portion of the transcript as
confidential must designate the confidential portions within fourteen (14) days.
Any Protected Material that is used in the taking of a deposition shall remain
subject to the provisions of this Protective Order, along with the transcript pages of
the deposition testimony dealing with such Protected Material. In such cases, the
court reporter shall be informed of this Protective Order and shall be required to
operate in a manner consistent with this Protective Order.

In the event the

deposition is videotaped, the original and all copies of the videotape shall be
marked by the video technician to indicate that the contents of the videotape are
subject to this Protective Order, substantially along the lines of “This videotape
contains confidential testimony used in this case and is not to be viewed or the
contents thereof to be displayed or revealed except pursuant to the terms of the
operative Protective Order in this matter or pursuant to written stipulation of the
parties.” Counsel for any Producing Party shall have the right to exclude from oral
depositions, other than the deponent, deponent’s counsel, the reporter and
videographer (if any), any person who is not authorized by this Protective Order to
receive or access Protected Material based on the designation of such Protected
Material.

Such right of exclusion shall be applicable only during periods of

examination or testimony regarding such Protected Material.

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STIPULATED PROTECTIVE ORDER [PROPOSED],
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8.

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(a)

A

Producing

Party

may

designate

Discovery

Material

as

“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or
commercially sensitive information.

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DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”

(b)

Unless otherwise ordered by the Court, Discovery Material designated

as “CONFIDENTIAL” may be disclosed only to the following:

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(i)

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The Receiving Party’s Outside Counsel, such counsel’s

immediate paralegals and staff, and any copying, document management, or

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clerical litigation support services or vendors working at the direction of such

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counsel, paralegals, and staff;

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(ii)

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Not more than four (4) representatives of each Receiving Party1

who are in-house counsel for the Receiving Party, as well as their immediate

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paralegals and staff, to whom disclosure is reasonably necessary for this case,

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provided that each such in-house counsel representative has agreed to be

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bound by the provisions of the Protective Order by signing a copy of Exhibit

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A;

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(iii)

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Any outside expert or consultant retained by the Receiving Party

to assist in this action, as well as their immediate support staff, provided that

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disclosure is only to the extent necessary to perform such work; and provided

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that: (a) such expert or consultant has agreed to be bound by the provisions of

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the Protective Order by signing a copy of Exhibit A; (b) such expert or

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consultant is not a current officer, director, or employee of a Party or of a

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competitor of a Party, nor anticipated at the time of retention to become an

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officer, director, or employee of a competitor of a Party or of a competitor of

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For purposes of Paragraphs 8(b)(ii) and 9(b)(ii), Defendants Broadcom Limited,
Broadcom Corporation, and Avago Technologies Limited (collectively
"Broadcom") are a Receiving Party, permitting only four (4) representatives total
from Broadcom to access Designated Material per the terms of this Order.
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STIPULATED PROTECTIVE ORDER [PROPOSED],
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a Party; (c) such expert or consultant accesses the materials in the United
States only, and does not transport them to or access them from any foreign
jurisdiction; and (d) no unresolved objections to such disclosure exist after
proper notice has been given to all Parties as set forth in Paragraph 12 below;
(iv)

Any person who appears on the face of Discovery Material as an

author, addressee, creator, contributor, modifier, editor, or recipient thereof
or who may be established as an author, addressee, creator, contributor,
modifier, editor, or recipient thereof by, for example, receipt of an email
message to which the Discovery Material is an attachment or receipt of a
packet of documents in which the Discovery Material was included;
(v)

Court reporters, stenographers, and videographers retained to

record testimony taken in this action;
(vi)

The Court, jury, and court personnel;

(vii) Graphics, translation, design, and trial consulting personnel,
managing personnel of such services having first agreed to be bound by the
provisions of the Protective Order by signing a copy of Exhibit A (which
does not need to be disclosed to the Producing Party);
(viii) Mock jurors who have signed an undertaking or agreement
agreeing not to publicly disclose Protected Material and to keep any
information concerning Protected Material confidential;
(ix)

Any arbitrator or mediator who is assigned to hear this matter,

and his or her staff, subject to their agreement to maintain confidentiality to
the same degree as required by this Protective Order;
(x)

While testifying at deposition, trial, or any other Court hearing

in this action only: (a) any current officer, director or employee of the
Producing Party or original source of the information; (b) any former officer,
director or employee of the Producing Party or original source of the
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information if the Protected Material pertains to the period or periods of his

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or her employment; (c) any person designated by the Producing Party to

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provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil

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Procedure; and/or (d) any person who authored, previously received (other

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than in connection with this litigation), or was directly involved in creating,

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contributing to, modifying, or editing the Protected Material, as evident from

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its face, as may be established, or reasonably certain in view of other

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testimony or evidence; and

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(xi)

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Any other person with the prior written consent of the Producing

Party.
9.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY”
(a)

A

Producing

Party

may

designate

Discovery

Material

as

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it contains or reflects
information that is extremely confidential and/or sensitive in nature and the
Producing Party reasonably believes that the disclosure of such Discovery Material
is likely to cause economic harm or significant competitive disadvantage to the
Producing Party.

The Parties agree, without limitation, that the following

information, if non-public, shall be presumed to merit the “CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” designation:

trade secrets, pricing information,

financial data, sales information, sales or marketing forecasts or plans, business
plans, sales or marketing strategy, product development information, engineering
documents, testing documents, employee information, licenses and agreements, and
other non-public information of similar competitive and business sensitivity.
(b)

Unless otherwise ordered by the Court, Discovery Material designated

as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:

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(i)

The Receiving Party’s Outside Counsel, provided that such

Outside Counsel is not involved in competitive decision-making, as defined
by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984) and
Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1471 (9th Cir.
1992), on behalf of a Party or a competitor of a Party, and such Outside
Counsel’s immediate paralegals and staff, and any copying, document
management, or clerical litigation support services or vendors working at the
direction of such counsel, paralegals, and staff;
(ii)

Not more than three (3) representatives of each Receiving Party

who are in-house counsel for the Receiving Party, as well as their immediate
paralegals and staff, to whom disclosure is reasonably necessary for this case,
provided however that: (A) each such in-house counsel representative has
agreed to be bound by the provisions of the Protective Order by signing a
copy of Exhibit A; and (B) notwithstanding any other provision of this Order,
such in-house counsel representatives’ access to information designated
“CONFIDENTIAL – ATTORNEYS EYES ONLY” shall be limited to the
following categories of information: discovery responses, infringement
contentions, expert reports, and motion papers, including drafts of the same,
as well as financial data, sales information, sales or marketing forecasts or
plans, business plans, sales or marketing strategy, or license agreements. For
the avoidance of doubt, such in-house counsel representatives shall not
receive access to: produced documents disclosing a Producing Party’s
technical trade secrets, product development information, engineering
documents, testing documents, employee information or other non-public
technical information of similar competitive and business sensitivity.
(iii)

Any outside expert or consultant retained by the Receiving Party

to assist in this action, as well as their immediate support staff, provided that
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disclosure is only to the extent necessary to perform such work; and provided
that: (a) such expert or consultant has agreed to be bound by the provisions
of the Protective Order by signing a copy of Exhibit A; (b) such expert or
consultant is not a current officer, director, or employee of a Party or of a
competitor of a Party, nor anticipated at the time of retention to become an
officer, director, or employee of a Party or of a competitor of a Party; (c)
such expert or consultant is not involved in competitive decision-making, as
defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir.
1984) and Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1471 (9th
Cir. 1992), on behalf of a Party or a competitor of a Party; (d) such expert or
consultant accesses the materials in the United States only, and does not
transport them to or access them from any foreign jurisdiction; and (e) no
unresolved objections to such disclosure exist after proper notice has been
given to all Parties as set forth in Paragraph 12 below;
(iv)

Any person who appears on the face of Discovery Material as an

author, addressee, creator, contributor, modifier, editor, or recipient thereof
or who may be established as an author, addressee, creator, contributor,
modifier, editor, or recipient thereof by, for example, receipt of an email
message to which the Discovery Material is an attachment or receipt of a
packet of documents in which the Discovery Material was included;
(v)

Court reporters, stenographers, and videographers retained to

record testimony taken in this action;
(vi)

The Court, jury, and court personnel;

(vii) Graphics, translation, design, and/or trial consulting personnel,
including mock jurors retained to assist them in their work, and managing
personnel of such services having first agreed to be bound by the provisions

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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of the Protective Order by signing a copy of Exhibit A (which does not need

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to be disclosed to the Producing Party);

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(viii) Any arbitrator or mediator who is assigned to hear this matter,

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and his or her staff, subject to their agreement to maintain confidentiality to

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the same degree as required by this Protective Order;

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(ix)

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in this action only: (a) any current officer, director or employee of the

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Producing Party or original source of the information; (b) any former officer,

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director or employee of the Producing Party or original source of the

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information if the Protected Material pertains to the period or periods of his

11

or her employment; (c) any person designated by the Producing Party to

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provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil

13

Procedure; and/or (d) any person who authored, previously received (other

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than in connection with this litigation), or was directly involved in creating,

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contributing to, modifying, or editing the Protected Material, as evident from

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its face, as may be established, or reasonably certain in view of other

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testimony or evidence; and

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(x)

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While testifying at deposition, trial, or any other Court hearing

Any other person with the prior written consent of the Producing

Party.
10.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”
(a)

A Producing Party may designate Source Code as “CONFIDENTIAL

– OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” if it comprises or
includes confidential, proprietary, and/or trade secret Source Code.
(b)

Nothing in this Order shall be construed as a representation or

admission that Source Code is properly discoverable in this action, or to obligate
any Party to produce any Source Code.
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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(c)

Unless otherwise ordered by the Court, Discovery Material designated

as “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
CODE” shall be subject to the provisions set forth in Paragraph 11 below, and may
be disclosed, subject to Paragraph 11 below, solely to:
(i)

The Receiving Party’s Outside Counsel, provided that such

Outside Counsel is not involved in competitive decision-making, as defined
by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984) and
Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1471 (9th Cir.
1992), on behalf of a Party or a competitor of a Party, and such Outside
Counsel’s immediate paralegals and staff, and any copying, document
management, or clerical litigation support services or vendors working at the
direction of such counsel, paralegals, and staff;
(ii)

Any outside expert or consultant retained by the Receiving Party

to assist in this action, as well as their immediate support staff, provided that
disclosure is only to the extent necessary to perform such work; and provided
that: (a) such expert or consultant has agreed to be bound by the provisions of
the Protective Order by signing a copy of Exhibit A; (b) such expert or
consultant is not a current officer, director, or employee of a Party or of a
competitor of a Party, nor anticipated at the time of retention to become an
officer, director, or employee of a Party or of a competitor of a Party; (c)
such expert or consultant is not involved in competitive decision-making, as
defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir.
1984) and Brown Bag Software v. Symantec Corp., 960 F.2d 1465, 1471 (9th
Cir. 1992), on behalf of a Party or a competitor of a Party; and (d) no
unresolved objections to such disclosure exist after proper notice has been
given to all Parties as set forth in Paragraph 12 below;

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CASE NO. 2:16-CV-3714-GW-AGRX

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(iii)

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as an author thereof;

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(iv)

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(v)

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the same degree as required by this Protective Order; and

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(vii) Any other person with the prior written consent of the Producing

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Any arbitrator or mediator who is assigned to hear this matter,

and his or her staff, subject to their agreement to maintain confidentiality to

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The Court, jury, and court personnel;

(vi)

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Court reporters, stenographers, and videographers retained to

record testimony taken in this action;

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Any person who appears on the face of the Designated Material

Party.
11.

DISCLOSURE AND REVIEW OF SOURCE CODE
(a)

Any Source Code that is produced by Plaintiff shall be made available

for inspection in electronic format at the Silicon Valley or Los Angeles offices of
its outside counsel, Quinn Emanuel Urquhart and Sullivan LLP, or any other
location mutually agreed by the Parties. Any Source Code that is produced by any
Defendant will be made available for inspection at the Palo Alto offices of its
outside counsel, WilmerHale LLP, or any other location mutually agreed by the
Parties. Source Code will be made available for inspection between the hours of 8
a.m. and 6 p.m. on business days (i.e., weekdays that are not Federal holidays),
although the Parties will be reasonable in accommodating reasonable requests to
conduct inspections at other times.
(b)

Prior to the first inspection of any requested Source Code, the

Receiving Party shall provide seven (7) days notice of the Source Code that it
wishes to inspect. The Receiving Party shall provide three (3) days notice prior to
any additional inspections.
(c)

Source Code that is designated “CONFIDENTIAL – OUTSIDE

ATTORNEYS’ EYES ONLY – SOURCE CODE” shall be produced for inspection
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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and review subject to the following provisions, unless otherwise agreed by the
Producing Party:
(i)

All Source Code shall be made available by the Producing Party

to the Receiving Party’s Outside Counsel and/or experts/consultants in a
secure room, in text searchable form on a secured computer without Internet
access or network access to other computers and on which all access ports
have been disabled (except for one printer port), as necessary and appropriate
to prevent and protect against any unauthorized copying, transmission,
removal, or other transfer of any Source Code outside or away from the
computer on which the Source Code is provided for inspection (the “Source
Code Computer” in the “Source Code Review Room”). In addition, and to
the extent it is feasible to do so, the Producing Party shall make the Source
Code available in hierarchical directory and file structures as close to the
original as possible. The Producing Party shall install tools that are sufficient
for viewing and searching the code produced, on the platform produced, if
such tools exist and are presently used in the ordinary course of the
Producing Party’s business. The Receiving Party’s Outside Counsel and/or
experts/consultants may request that commercially available software tools
for viewing and searching Source Code be installed on the Source Code
Computer, provided, however, that (a) the Receiving Party possesses an
appropriate license to such software tools; (b) the Producing Party approves
such software tools; and (c) such other software tools are reasonably
necessary for the Receiving Party to perform its review of the Source Code
consistent with all of the protections herein. The Producing Party shall
approve reasonable requests for additional commercially available software
tools. The Receiving Party must provide the Producing Party with the CD or
DVD containing such licensed software tool(s) at least six (6) days in
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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advance of the date upon which the Receiving Party wishes to have the
additional software tools available for use on the Source Code Computer.
(ii)

No recordable media or recordable devices, including, without

limitation, sound recorders, computers, cellular telephones, peripheral
equipment, cameras, CDs, DVDs, or drives of any kind, shall be permitted
into the Source Code Review Room. The Producing Party shall make a
space available outside the secure room in which persons reviewing
“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
CODE” may utilize such devices and/or transfer their notes to a personal
computer or other device.
(iii)

The

Receiving

Party’s

Outside

Counsel

and/or

experts/consultants shall be entitled to take hand-written notes relating to the
Source Code but may not copy the Source Code into the notes and may not
take such notes electronically on the Source Code Computer itself or any
other computer.
(iv)

The Producing Party may visually monitor the activities of the

Receiving Party’s representatives during any Source Code review, but only
to ensure that no unauthorized electronic records of the Source Code and no
information concerning the Source Code are being created or transmitted in
any way.
(v)

No copies of all or any portion of the Source Code may leave

the room in which the Source Code is inspected except as otherwise provided
herein. Further, no other written or electronic record of the Source Code is
permitted except as otherwise provided herein. The Producing Party shall
make available a laser printer with commercially reasonable printing speeds
for on-site printing during inspection of the Source Code. The Receiving
Party may print limited portions of the Source Code only when necessary to
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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prepare court filings or pleadings or other papers (including a testifying
expert’s expert report) or to be used as deposition and/or trial exhibits in
connection with testimony by the Producing Party’s witnesses concerning the
Source Code. The burden shall be on the Receiving Party to demonstrate the
need for a printed copy of more than five (5) pages of a continuous block of
Source Code. The Receiving Party shall not print Source Code in order to
review blocks of Source Code elsewhere in the first instance, i.e., as an
alternative to reviewing that Source Code electronically on the Source Code
Computer, as the Parties acknowledge and agree that the purpose of the
protections herein would be frustrated by printing portions of code for review
and analysis elsewhere, and that printing is permitted only when necessary to
prepare court filings or pleadings or other papers (including a testifying
expert’s expert report) or to be used as deposition and/or trial exhibits in
connection with testimony by the Producing Party’s witnesses concerning the
Source Code. Upon printing any such portions of Source Code, the printed
pages shall be collected by the Producing Party. The Producing Party shall
Bates

number,

copy,

and

label

“CONFIDENTIAL

–

OUTSIDE

ATTORNEYS’ EYES ONLY – SOURCE CODE” any pages printed by the
Receiving Party. Within three (3) days, the Producing Party shall either (i)
provide one copy set of such pages to the Receiving Party or (ii) inform the
Requesting Party that it objects that the printed portions are excessive and/or
not done for a permitted purpose. If, after meeting and conferring, either via
telephone or in person, the Parties cannot resolve the objection, the
Producing Party and the Receiving Party shall be entitled to seek a Court
resolution of whether the printed Source Code is narrowly tailored and was
printed for a permitted purpose. The burden shall be on the Receiving Party
to demonstrate that such printed portions are no more than is reasonably
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CASE NO. 2:16-CV-3714-GW-AGRX

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necessary for a permitted purpose and not merely printed for the purpose of
analysis elsewhere. The printed pages shall constitute part of the Source
Code produced by the Producing Party in this action.
(vi)

All persons who will review a Producing Party’s Source Code

on behalf of a Receiving Party, including members of a Receiving Party’s
outside law firm, shall be identified in writing to the Producing Party at least
five (5) days in advance of the first time that such person reviews such
Source Code. Such identification shall be in addition to any other disclosure
required under this Order. All persons viewing Source Code shall sign, on
each day they view Source Code, a log that will include the names of persons
who enter the locked room to view the Source Code and when they enter and
depart. The Producing Party shall be entitled to a copy of the log upon three
(3) day’s advance notice to the Receiving Party.
(vii) Unless otherwise agreed in advance by the Parties in writing,
following each day on which inspection is done under this Order, the
Receiving Party’s Outside Counsel and/or experts/consultants shall remove
all notes, documents, and all other materials from the Source Code Review
Room. The Producing Party shall not be responsible for any items left in the
room following each inspection session, and the Receiving Party shall have
no expectation of confidentiality for any items left in the room following
each inspection session without a prior agreement to that effect. Proper
identification of all authorized persons shall be provided prior to any access
to the Source Code Review Room or the Source Code Computer. Proper
identification requires showing, at a minimum, a photo identification card
sanctioned by the government of any State of the United States, by the
government of the United States, or by the nation state of the authorized
person’s current citizenship. Access to the secure room or the Source Code
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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Computer may be denied, at the discretion of the Producing Party, to any
individual who fails to provide proper identification.
(viii) Other than as provided above, the Receiving Party will not copy,
remove, or otherwise transfer any Source Code from the Source Code
Computer including, without limitation, copying, removing, or transferring
the Source Code onto any recordable media or recordable device. After an
inspection, the Receiving Party will not transmit any Source Code in any way
from the Producing Party’s facilities or the offices of its outside counsel of
record.
(ix)

The Receiving Party’s Outside Counsel may make no more than

three (3) additional paper copies of any portions of the Source Code received
from a Producing Party pursuant to Paragraph 11(c)(v), not including copies
attached to court filings or used at depositions, and shall maintain a log of all
paper copies of the Source Code. The log shall include the names of the
reviewers and/or recipients of paper copies and locations where the paper
copies are stored. Upon three (3) day’s advance notice to the Receiving
Party by the Producing Party, the Receiving Party shall provide a copy of this
log to the Producing Party.
(x)

The Receiving Party’s Outside Counsel and any person

receiving a copy of any Source Code shall maintain and store any paper
copies of the Source Code at their offices in a manner that prevents
duplication of or unauthorized access to the Source Code, including, without
limitation, storing the Source Code in a locked room or cabinet at all times
when it is not in use. No more than a total of ten (10) persons identified by
the Receiving Party, excluding Outside Counsel, shall have access to the
Source Code.

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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(xi)

For depositions, the Receiving Party may bring one (1) working

copy of printed Source Code selected from among the three (3) copies of
printed Source Code permitted under Paragraph 11(c)(ix). At least seven (7)
days before the date of the deposition, the Receiving Party shall notify the
Producing Party about the specific portions of Source Code it wishes to use
at the deposition, and the Producing Party shall bring printed copies of those
portions to the deposition for use by the Receiving Party. Copies of Source
Code that are marked as deposition exhibits shall not be provided to the
Court Reporter or attached to deposition transcripts; rather, the deposition
record will identify the exhibit by its production numbers. All paper copies
of Source Code brought to the deposition shall remain with the Producing
Party’s Outside Counsel for secure destruction in a timely manner following
the deposition.
(xii) On seven (7) days advanced notice, the Receiving Party may
request that an electronic copy of the Source Code be made available by the
Producing Party at a deposition of any fact witness who may properly access
such Source Code consistent with the terms of this Protective Order. The
Source Code will be provided by the Producing Party at the deposition on a
stand-alone computer, and access to the computer will be controlled by the
Producing Party.
(xiii) Except as provided in this sub-paragraph, absent express written
permission from the Producing Party, the Receiving Party may not create
electronic images, or any other images, or make electronic copies, of the
Source Code from any paper copy of Source Code for use in any manner
(including by way of example only, the Receiving Party may not scan the
Source Code to a PDF or photograph the code). Images or copies of Source
Code shall not be included in correspondence between the Parties (references
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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to production numbers shall be used instead), and shall be omitted from
pleadings and other papers except to the extent permitted herein.
The Receiving Party may create an electronic copy or image of limited
excerpts of Source Code only to the extent necessary in a pleading, court
filing, expert report or trial exhibit or demonstrative, and drafts of these
documents. The Receiving Party shall include only such excerpts of Source
Code as are reasonably necessary for the purposes for which such part of the
Source Code is used. The Receiving Party may create an electronic image of
a selected portion of the Source Code only when the electronic file
containing such image has been encrypted using commercially reasonable
encryption software including password protection. The communication
and/or disclosure of electronic files containing any portion of Source Code
shall at all times be limited to individuals who are expressly authorized to
view Source Code under the provisions of this Protective Order. The
Receiving Party shall maintain a log of all such electronic copies of any
portion of Source Code in its possession or in the possession of its retained
consultants, including the names of the reviewers and/or recipients of any
such electronic copies, and the locations and manner in which the electronic
copies are stored. Additionally, any such electronic copies must be labeled
“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE
CODE” as provided for in this Order.
A party seeking to file with the court documents containing excerpts of
Source Code as permitted by this subparagraph must file an Application for
Leave to File Under Seal under the provisions of Local Rule 79-5 or 79-6, as
applicable.

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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(xiv) The parties agree to promptly meet and confer, either via

2

telephone or in person, to discuss modifications to the time limits in Section

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4
5
6
7
8

11 if deadlines in the case so require.
12.

NOTICE OF DISCLOSURE
(a)

Paragraphs 8(b)(iii), 9(b)(iii), or 10(c)(ii) (referenced below as “Person”), the Party
seeking to disclose such information shall provide the Producing Party with written
notice that includes:

9

(i)

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relationships through entities owned or controlled by the Person, including
but not limited to an identification of any individual or entity with or for
whom the person is employed or to whom the person provides consulting
services relating to the design, development, operation, or patenting of error
correction codes for integrated circuits used for wireless communications, or
relating to acquisition of intellectual property assets relating to error
correction codes for integrated circuits used for wireless communications;
(v)

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an identification of all pending patent applications on which the

Person is named as an inventor or in which the Person has any ownership
interest; and

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an identification of the Person’s past and current employment

and consulting relationships within the last six (6) years, including consulting

21
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the present employer and title of the Person;

(iv)

12

an up-to-date curriculum vitae of the Person;

(iii)

11

the name of the Person;

(ii)

10

13

Prior to disclosing any Protected Material to any person described in

(vi)

a list of the cases in which the Person has testified at deposition

or trial within the last five (5) years.
(b)

Prior to disclosing any Protected Material to any person described in

Paragraphs 8(b)(ii) (referenced below as “Person”), the Party seeking to disclose
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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such information shall provide the Producing Party with written notice that
identifies the name of the Person(s).
(c)

Further, the Party seeking to disclose Protected Material shall provide

such other information regarding the Person’s past and current employment and
consulting relationships reasonably requested by the Producing Party for it to
evaluate whether good cause exists to object to the disclosure of Protected Material
to the Person. To the extent certain information identified in Paragraph 12(a) or
requested per this Paragraph cannot be disclosed because of confidentiality
obligations, the parties agree to meet and confer, either via telephone or in person,
to negotiate alternate information that can be provided.
(d)

Within fourteen (14) days of receipt of the disclosure of the Person, the

Producing Party or Parties may object in writing to the Person for good cause. In
the absence of an objection at the end of the fourteen (14) day period, the Person
shall be deemed approved under this Protective Order. There shall be no disclosure
of Protected Material to the Person prior to expiration of this fourteen (14) day
period. If the Producing Party objects to disclosure to the Person within such
fourteen (14) day period, the Parties shall meet and confer via telephone or in
person within seven (7) days following the objection and attempt in good faith to
resolve the dispute on an informal basis. If the dispute is not resolved, the Party
objecting to the disclosure will have seven (7) days from the date of the meet and
confer to seek relief from the Court. If relief is not sought from the Court within
that time, the objection shall be deemed withdrawn. If relief is sought, designated
materials shall not be disclosed to the Person in question until the Court resolves
the objection.
(e)

For purposes of this section, “good cause” shall include an objectively

reasonable concern that the Person will, advertently or inadvertently, use or disclose

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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Discovery Materials in a way or ways that are inconsistent with the provisions
contained in this Order.

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(f)

must execute a copy of the “Agreement to Be Bound by Protective Order” (Exhibit
A hereto) and serve it on all Parties.

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(g)

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An initial failure to object to a Person under this Paragraph 12 shall not

preclude the nonobjecting Party from later objecting to continued access by that
Person for good cause. If an objection is made, the Parties shall meet and confer
via telephone or in person within seven (7) days following the objection and
attempt in good faith to resolve the dispute informally.

If the dispute is not

resolved, the Party objecting to the disclosure will have seven (7) days from the
date of the meet and confer to seek relief from the Court. The designated Person
may continue to have access to information that was provided to such Person prior
to the date of the objection. If a later objection is made, no further Protected
Material shall be disclosed to the Person until the Court resolves the matter or the
Producing Party withdraws its objection. Notwithstanding the foregoing, if the
Producing Party fails to move for a protective order within three (3) business days
after the meet and confer, further Protected Material may thereafter be provided to
the Person.

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Prior to receiving any Protected Material under this Order, the Person

(h)

The parties agree to promptly meet and confer, either via telephone or

in person, to discuss modifications to the time limits in Section 12 if deadlines in
the case so require.
13.

CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL
(a)

A Party shall not be obligated to challenge the propriety of any

designation of Discovery Material under this Order at the time the designation is
made, and a failure to do so shall not preclude a subsequent challenge thereto.

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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(b)

Any challenge to a designation of Discovery Material under this Order

shall be written, shall be served on Outside Counsel for the Producing Party, shall
particularly identify the documents or information that the Receiving Party
contends should be differently designated, and shall state the grounds for the
objection.

Thereafter, further protection of such material shall be resolved in

accordance with the following procedures:
(i)

The objecting Party shall have the burden of conferring either in

person, in writing, or by telephone with the Producing Party claiming
protection (as well as any other interested party) in a good faith effort to
resolve the dispute. The Producing Party shall have the burden of justifying
the disputed designation;
(ii)

Failing agreement, the Receiving Party may seek relief from the

Court, including, for example, a ruling that the Discovery Material in
question is not entitled to the status and protection of the Producing Party’s
designation. The Parties’ entry into this Order shall not preclude or prejudice
either Party from arguing for or against any designation, establish any
presumption that a particular designation is valid, or alter the burden of proof
that would otherwise apply in a dispute over discovery or disclosure of
information;
(iii)

Notwithstanding any challenge to a designation, the Discovery

Material in question shall continue to be treated as designated under this
Order until one of the following occurs: (a) the Party who designated the
Discovery Material in question withdraws such designation in writing; or (b)
the Court rules that the Discovery Material in question is not entitled to the
designation.

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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14.

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If at any time Protected Material is subpoenaed by any court or arbitral,
administrative, or legislative body, the Party to whom the subpoena or other request
is directed shall immediately give prompt written notice thereof to every Party who
has produced such Discovery Material and to its counsel and shall provide each
such Party with an opportunity to move for a protective order regarding the
production of or otherwise protect Protected Materials implicated by the subpoena.
15.

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FILING PROTECTED MATERIAL
(a)

Absent written permission from the Producing Party or a court order

secured after appropriate notice to all interested persons, a Receiving Party may not
file or disclose in the public record any Protected Material.

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SUBPOENAS OR COURT ORDERS

(b)

Any Party is authorized under Civil Local Rule 79-5.2.2 to file under

seal with the Court any brief, document, or materials that are designated as
Protected Material under this Order. However, nothing in this section shall in any
way limit or detract from this Order’s requirements as to Source Code.
16.

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
(a)

Nothing in this Protective Order shall require production of

information that a Party contends is protected from disclosure by the attorney-client
privilege, the patent agent-client privilege, the work product immunity or other
privilege, doctrine, right, or immunity.
(b)

The inadvertent production by a Party of Discovery Material subject to

the attorney-client privilege, the patent agent-client privilege, work-product
protection, or any other applicable privilege or protection, despite the Producing
Party’s reasonable efforts to prescreen such Discovery Material prior to production,
will not waive the applicable privilege and/or protection if a request for return of
such inadvertently produced Discovery Material is made promptly after the
Producing Party learns of its inadvertent production.

This Order shall be

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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interpreted to provide the maximum protection allowed by Federal Rule of
Evidence 502(d).

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(c)

produced Discovery Material that it believes is privileged and/or protected, each
Receiving Party shall immediately destroy such Protected Material or Discovery
Material and certify as such by the Receiving Party to the Producing Party.
Notwithstanding this provision, outside litigation counsel of record are not required
to delete information that may reside on their respective firms’ electronic back-up
systems.

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(d)

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After inadvertently or unintentionally produced information subject to

a claim of immunity or privilege has been returned or destroyed, the Receiving
Party may challenge that assertion of immunity or privilege, but may not use the
contents of that information for any purpose, including, without limitation,
submission of the information for in camera review by the Court in asserting a
challenge of the assertion of immunity or privilege.

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17

Upon a request from any Producing Party who has inadvertently

(e)

Nothing in this Order modifies any person’s ethical duties regarding

information to which a claim of attorney-client privilege and/or work product
protection may attach.
17.

INADVERTENT FAILURE TO DESIGNATE
(a)

The inadvertent failure by a Producing Party to designate Discovery

Material as Protected Material with one of the designations provided for under this
Order shall not waive any such designation provided that the Producing Party
notifies all Receiving Parties that such Discovery Material is protected under one of
the categories of this Order within fourteen (14) days of the Producing Party
learning of the inadvertent failure to designate.

The Producing Party shall

reproduce the Protected Material with the correct confidentiality designation within
seven (7) days upon its notification to the Receiving Parties. Upon receiving the
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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Protected Material with the correct confidentiality designation, the Receiving
Parties shall securely destroy all Discovery Material that was not designated
properly.

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(b)

such Discovery Material before the Receiving Party receives such notice that such
Discovery Material is protected under one of the categories of this Order, unless an
objectively reasonable person would have realized that the Discovery Material
should have been appropriately designated with a confidentiality designation under
this Order.

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Once a Receiving Party has received notification of the correct

confidentiality designation for the Protected Material with the correct
confidentiality designation, the Receiving Party shall treat such Discovery Material
(subject to the exception in Paragraph 17(c) below) at the appropriately designated
level pursuant to the terms of this Order.

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A Receiving Party shall not be in breach of this Order for any use of

(c)

Notwithstanding

the

above,

a

subsequent

designation

of

“CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE
CODE” shall apply on a going forward basis and shall not disqualify anyone who
reviewed “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY –
SOURCE

CODE”

materials

while

the

materials

were

not

marked

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL –
OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” from engaging in the
activities set forth in Paragraph 6(b).
18.

INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER
(a)

In the event of a disclosure of any Discovery Material pursuant to this

Order to any person or persons not authorized to receive such disclosure under this
Protective Order, the Party responsible for having made such disclosure, and each
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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Party with knowledge thereof, shall immediately notify counsel for the Producing
Party whose Discovery Material has been disclosed and provide to such counsel all
known relevant information concerning the nature and circumstances of the
disclosure. The responsible disclosing Party shall also promptly take all reasonable
measures to retrieve the improperly disclosed Discovery Material and to ensure that
no further or greater unauthorized disclosure and/or use thereof is made.

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(b)

Unauthorized or inadvertent disclosure does not change the status of

Discovery Material or waive the right to hold the disclosed document or
information as Protected.
19.

FINAL DISPOSITION
(a)

Not later than ninety (90) days after the Final Disposition of this case,

each Party shall return all Discovery Material of a Producing Party to the respective
Outside Counsel of the Producing Party or destroy such Material, at the option of
the Producing Party. For purposes of this Order, “Final Disposition” occurs after
an order, mandate, or dismissal finally terminating the above-captioned action with
prejudice, including all appeals.
(b)

All Parties that have received any such Discovery Material shall

certify in writing that all such materials have been returned to the respective
Outside Counsel of the Producing Party or destroyed.

Notwithstanding the

provisions for return of Discovery Material, Outside Counsel may retain one set of
pleadings, correspondence and attorney and consultant work product (but not
document productions) for archival purposes, but must return any pleadings,
correspondence, and consultant work product that contain Source Code. Copies of
pleadings, correspondence and attorney and consultant work product (but not
document productions) created by the operation of Outside Counsel’s backup and
disaster recovery tools need not be destroyed, but, if they are not destroyed, the

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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person in possession of that Discovery Material remains bound by this Order with
respect to all such retained formation.
20.

DISCOVERY FROM EXPERTS OR CONSULTANTS
(a)

Testifying experts shall not be subject to discovery with respect to any

draft of his or her report(s) in this case. Draft reports, notes, or outlines for draft
reports developed and drafted by the testifying expert and/or his or her staff are also
exempt from discovery.
(b)

Discovery of materials provided to testifying experts shall be limited

to those materials, facts, consulting expert opinions, and other matters actually
relied upon by the testifying expert in forming his or her final report, trial or
deposition testimony, or any opinion in this case. No discovery can be taken from
any non-testifying expert except to the extent that such non-testifying expert has
provided information or opinions to a testifying expert relied upon, and not
independently verified, by that testifying expert in forming his or her final report(s),
trial and/or deposition testimony, or any opinion in this case.
(c)

No conversations or communications between counsel and any

testifying or consulting expert will be subject to discovery unless the conversations
or communications are relied upon by such experts in formulating opinions that are
presented in reports or trial or deposition testimony or any opinion in this case.
(d)

Materials, communications, and other information exempt from

discovery under the foregoing Paragraphs 20(a)–(c) shall be treated as attorneywork product for the purposes of this litigation and Order.
(e)

Nothing in this Protective Order, including Paragraphs 20(a)–(c), shall

alter or change in any way the requirements in Paragraph 11 regarding Source
Code, and Paragraph 11 shall control in the event of any conflict.

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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21.

MISCELLANEOUS
(a)

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

any person to seek its modification by the Court in the future. By stipulating to this
Order, the Parties do not waive the right to argue that certain material may require
additional or different confidentiality protections than those set forth herein.
(b)

Termination of Matter and Retention of Jurisdiction. The Parties

agree that the terms of this Protective Order shall survive and remain in effect after
the Final Determination of the above-captioned matter. The Court shall retain
jurisdiction after Final Determination of this matter to hear and resolve any disputes
arising out of this Protective Order.
(c)

Successors. This Order shall be binding upon the Parties hereto, their

attorneys, and their successors, executors, personal representatives, administrators,
heirs, legal representatives, assigns, subsidiaries, divisions, employees, agents,
retained consultants and experts, and any persons or organizations over which they
have direct control.
(d)

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

Protective Order, no Party waives any right it otherwise would have to object to
disclosing or producing any information or item. Similarly, no Party waives any
right to object on any ground to use in evidence of any of the material covered by
this Protective Order. This Order shall not constitute a waiver of the right of any
Party to claim in this action or otherwise that any Discovery Material, or any
portion thereof, is privileged or otherwise non-discoverable, or is not admissible in
evidence in this action or any other proceeding.
(e)

Burdens of Proof. Notwithstanding anything to the contrary above,

nothing in this Protective Order shall be construed to change the burdens of proof
or legal standards applicable in disputes regarding whether particular Discovery

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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Material is confidential, which level of confidentiality is appropriate, whether
disclosure should be restricted, and if so, what restrictions should apply.
(f)

Modification by Court. This Order is subject to further court order

based upon public policy or other considerations, and the Court may modify this
Order sua sponte in the interests of justice. The parties prefer that the Court
provide them with notice of the Court’s intent to modify this Order and the content
of those modifications, prior to entry of such an order. The Court may further
modify the terms and conditions of this Order at the request of a Party or the Parties
for good cause, or in the interest of justice, at any time in these proceedings. The
United States District Court for the Central District of California is responsible for
the interpretation and enforcement of this Order. All disputes concerning Protected
Material, however designated, produced under the protection of this Order shall be
resolved by the United States District Court for the Central District of California.
(g)

Modification by the Parties. The Parties may jointly agree to modify

this Order without the Court’s leave.
(h)

Discovery Rules Remain Unchanged. Nothing herein shall alter or

change in any way the discovery provisions of the Federal Rules of Civil
Procedure, the Local Rules for the United States District Court for the Central
District of California, or the Court’s own orders. Identification of any individual
pursuant to this Protective Order does not make that individual available for
deposition or any other form of discovery outside of the restrictions and procedures
of the Federal Rules of Civil Procedure, the Local Rules for the United States
District Court for the Central District of California, or the Court’s own orders.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: February 2, 2017

By: /s/ Todd M. Briggs
Todd M. Briggs
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
555 Twin Dolphin Drive, 5th Floor
Redwood Shores, California 94065
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff California Institute of
Technology

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By: /s/Mark D. Selwyn
Mark D. Selwyn

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Mark D. Selwyn
[e-mail]
WILMER CUTLER PICKERING
HALE AND DORR LLP
950 Page Mill Road
Palo Alto, California 94304
Tel: [phone]
Fax: [phone]
Attorneys for Defendants Broadcom Limited,
Broadcom Corporation, Avago Technologies
Limited, Apple Inc., and Cypress
Semiconductor Corporation

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IT IS SO ORDERED.

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DATED: February 2, 2017

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Hon. George H. Wu
United States District Judge

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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FILER’S ATTESTATION OF CONCURRENCE
Pursuant to Civil L.R. 5-4.3.4(a)(2) relating to documents requiring multiple
signatures, I, Todd M. Briggs, attest that all other signatories concur in the content
of the foregoing document and authorize the filing of the same.

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/s/ Todd M. Briggs
Todd M. Briggs

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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EXHIBIT A

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, ______________________________, declare and say that:
1.

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__________________________________________________ by

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_________________________________________________________

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__________.
2.

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3.

“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY –

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SOURCE CODE” information (as defined in the Protective Order) that

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is given to me, only in a manner authorized by the Protective Order,

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and only to assist counsel in the litigation of these matters.
4.

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“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY –

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SOURCE CODE” information with anyone other than the persons

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described in the Protective Order.
5.

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District of California with respect to enforcement of the Protective

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I acknowledge that, by signing this agreement, I am subjecting myself
to the jurisdiction of the United States District Court for the Central

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I promise that I will not disclose or discuss such “CONFIDENTIAL,”
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or

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I promise that I will use any and all “CONFIDENTIAL,”
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or

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I have read the Protective Order entered in the above-captioned matter
and have received a copy of the Protective Order.

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I am employed as

Order.
6.

I understand that any disclosure or use of “CONFIDENTIAL,”
“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY –
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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX

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SOURCE CODE” information in any manner contrary to the

2

provisions of the Protective Order may subject me to sanctions for

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

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6

Date:

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STIPULATED PROTECTIVE ORDER [PROPOSED],
CASE NO. 2:16-CV-3714-GW-AGRX