POWERbahn, LLC v. Zwift, Inc.

Filing 53

PROTECTIVE ORDER by Magistrate Judge Michael R. Wilner, re: Stipulation for Protective Order, #52 . (mz)

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Todd C. Atkins (SBN 208879)
[e-mail]
ATKINS & DAVIDSON, APC
750 East Green Street, Suite 204
Pasadena, CA 91101
[phone]
Matthew M. Wawrzyn (pro hac vice)
[e-mail]
Stephen C. Jarvis (pro hac vice)
[e-mail]
WAWRZYN & JARVIS LLC
233 S. Wacker Drive, 84th Floor
Chicago, IL 60606
[phone]
Counsel for Plaintiff POWERbahn, LLC
Jonathan Pearce, Cal. Bar No. 245,776
[e-mail]
Michael D. Harris, Cal. Bar No. 59,470
[e-mail]
SOCAL IP LAW GROUP LLP
310 N. Westlake Blvd., Suite 120
Westlake Village, CA 91362-3788
Phone: [phone] • Fax: [phone]
Attorneys for Defendant Zwift, Inc.
UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA–WESTERN DIVISION
POWERbahn, LLC,
No. 2:17-cv-01393-MLH (MRWx)
Plaintiff,

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Stipulated Protective Order to
Comply with Court’s November 28,
2017, Order

v.
Zwift, Inc.,

Magistrate Judge: Michael R. Wilner

Defendant.

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Under FED. R. CIV. P. 26(c), the parties stipulate to this Protective Order:
1. Plaintiff POWERbahn, LLC, and defendant Zwift, Inc. (the “Parties”), and
certain non-parties that may respond to discovery, are engaged in proprietary business activities and could suffer immediate and irreparable harm if certain documents,
Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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were disclosed without adequate safeguards. This is a lawsuit for infringement of

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three POWERbahn patents related to software for bicycle trainers. Defendant Zwift

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supplies its software to consumers who use that software in conjunction with bicycle

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trainers sold by two independent companies. Both of those companies are defendants

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in separate lawsuits in other districts. Zwift’s website also allows customers to pur-

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chase trainers from one of these companies. Plaintiff POWERbahn claims that it sells

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trainers or licenses others to sell trainers incorporating its technology. POWERbahn

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has also expressed a desire to compete with Zwift and the defendants in other cases in

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selling bicycle trainers. Each party here has technical information, including comput-

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er software source code related to the trainers, that would likely be commercially use-

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ful to the other party were it not protected from disclosure. Zwift likewise has finan-

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cial information dealing with sales and pricing that might be useful for POWERbahn.

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POWERbahn and Zwift marketing plans and information about the needs of custom-

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ers or prospects could be useful for each other. Disclosure of one party’s technical,

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financial, pricing and customer information to the other party could potentially harm

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the disclosing party.

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2. This protective order governs handling all documents provided to a Party

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by a producing person. This protective order also governs handling any documents

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previously exchanged between the Parties, to the extent the Parties designated them

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as “Confidential,” “Highly Confidential – Attorneys’ Eyes Only” or “Confidential –

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Source Code.” relating to the underlying claims and defenses, and supersedes any

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earlier confidentiality agreements about the exchange of such documents.

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3. The term “document” includes the documents, information and materials in

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Fed. R. Civ. P. 34(a)(1), any electronic information or data disclosed or produced,

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any responses to written discovery and any deposition or other testimony.

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4. A producing person disclosing documents in this action may designate all
or a portion of those documents as “Confidential” “Highly Confidential – Attorneys’

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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Eyes Only” or “Confidential – Source Code.” Each designation constitutes the pro-

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ducing person’s representation it believes in good faith that the designated document

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contains trade secret, proprietary or other confidential research, development or

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commercial information, or sensitive or confidential personal information, not gener-

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ally known to the public whose unrestricted disclosure could cause competitive or

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other injury, or annoyance, embarrassment or oppression to the disclosing producing

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person, or other information protected from public disclosure by statute or regulation

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or otherwise under law. Producing persons will reasonably limit in scope all “Confi-

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dential,” “Highly Confidential – Attorneys’ Eyes Only” or “Confidential – Source

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Code” designations.
5. A producing person designating documents as “Confidential,” “Highly

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Confidential – Attorneys’ Eyes Only” or “Confidential – Source Code” must do so

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reasonably calculated to advise any other producing person of that designation, in-

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cluding but not limited to by:

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a) During a deposition, indicating on the record that certain testimony is

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designated as “Confidential,” “Highly Confidential – Attorneys’ Eyes Only” or

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“Confidential – Source Code.”

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b) After a deposition, notifying all parties in writing within 14 days from

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the delivery of the transcript by the reporter that certain testimony is designated as

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“Confidential,” “Highly Confidential – Attorneys’ Eyes Only” or “Confidential –

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Source Code.”

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c) Affixing appropriate labels to such designated documents.

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d) Designating specific documents as “Confidential,” “Highly Confidential

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– Attorneys’ Eyes Only” or “Confidential – Source Code” in correspondence pro-

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vided to the Parties.

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

6. For 14 days from delivery by the reporter, producing persons must treat

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each deposition transcript as “Highly Confidential –Attorneys’ Eyes Only” in its en-

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tirety.

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7. Producing persons receiving “Confidential” documents may disclose these
documents only to:
a) A lawyer for a Party, including outside and in-house lawyers and other

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lawyers regularly employed in their offices, and the lawyers’ staff, including sec-

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retaries, paralegals and document clerks.

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b) The following two representatives for each party, who must also sign the

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Appendix A acknowledgment to be bound to its terms:

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For POWERbahn: Scott Radow

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For Zwift: Alarik Myrin

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c) Accountants, auditors, independent consultants or regulators to whom a

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Party may have to respond or report in the ordinary course of business regarding

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this case or proceedings arising out of or related to this case.

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d) Experts or consultants, whether employees or officers of the Parties, re-

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tained by a Party to assist, including their staff, but only for the expert or consult-

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ant to perform his or her assigned tasks with this case.

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e) Any witness and his or her counsel, but only for the witness’s review to

prepare for or during his or her deposition or in-court testimony.
f) Mediators or similar outside parties and their staffs enlisted by the Par-

ties to assist in resolving the claims and defenses of the Parties.
g) Persons requested to furnish services such as document collection, pro-

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cessing, review, coding, copying or ESI storage services to assist a Party or in

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proceedings arising from or related to this case.

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h) Court and deposition reporters, videographers or transcribers employed

in this case or proceedings arising out of or related to this case.

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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i) The Court and its staff.

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j) Any person to whom the information justifying the document’s designa-

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tion as “Confidential” has been disclosed by the disclosing producing person.
k) Any other person for whom the Party receiving the information can

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show good cause, but only upon order of the Court or with advance written per-

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mission of the producing person that disclosed the document and designated in-

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formation in the document as “Confidential.”

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8. Notwithstanding the restrictions in paragraph 7a) through k), this protective order will not bar or otherwise restrict counsel from rendering advice to his or

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her client regarding this matter or from generally referring to or relying upon “Confi-

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dential” information in rendering such advice.

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9. Producing persons receiving “Highly Confidential –Attorneys’ Eyes Only”
documents may disclose these documents only to:
a) A lawyer for a Party, including outside and in-house lawyers and other

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lawyers regularly employed in their offices, and such lawyers’ staff, including

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secretaries, paralegals and document clerks.

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b) Accountants, auditors, independent consultants or regulators to whom a

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Party may have to respond or report in the ordinary course of business regarding

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this case or proceedings arising out of or related to this case.

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c) Outside, non-employee and non-officer, experts or consultants retained

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by a Party to assist, including their staff, but only for such expert or consultant to

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perform his or her assigned tasks.

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d) Mediators or similar outside parties and their staffs enlisted by the Par-

ties to assist in resolving the claims and defenses of the Parties.
e) Persons requested to furnish services such as document collection, pro-

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cessing, review, coding, copying or ESI storage services to assist a Party or in

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proceedings arising out of or related to this case.

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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f) Court and deposition reporters, videographers or transcribers employed

in this case or proceedings arising out of or related to this case.

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g) The Court and its staff.

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h) Any person to whom the information justifying the document’s designa-

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tion as “Highly Confidential – Attorneys’ Eyes Only” has been disclosed by the

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disclosing producing person.

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i) Any other person for whom the Party receiving the information can

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show good cause, but only upon order of the Court or with advance written per-

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mission of the producing person that disclosed the document and designated in-

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formation in the document as “Highly Confidential –Attorneys’ Eyes Only.”
10. Notwithstanding the restrictions in paragraph 8a) through i), this protective

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order will not bar or otherwise restrict counsel from rendering advice to his or her

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client regarding this matter or from generally referring to or relying upon “Highly

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Confidential –Attorneys’ Eyes Only” information in rendering such advice.

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11. Any party or third party to this action wishing to avail itself of the protec-

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tion afforded source code in this protective order must designate the source code as

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“Confidential – Source Code.” The party producing source code must, at a minimum,

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produce to the receiving party in electronic format, such as CD or DVD, in native

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form. Each receiving party will be provided with three non-transferable electronic

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copies of the source code to be returned to the providing party at the end of this liti-

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gation. These electronic copies may not be duplicated, except as provided below.

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Any electronic source code produced by a party to this action or a third party to this

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action must be maintained by the receiving party in a secure location on an isolated,

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password-protected computer not connected to the Internet. Source code may only be

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disclosed to outside litigation counsel and designated experts who have agreed to be

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bound by the terms of the protective order by signing the acknowledgement of Ap-

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pendix A. This protective order does not limit the ability of a designated expert to

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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print or otherwise utilize the provided source code as needed to prepare expert reports

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and prepare for trial. Any reports, exhibits, testimony, or other communication(s) that

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are to be filed with or presented to the Court that refer to, relate to, or include any

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portion of the source code must be designated as “Confidential – Source Code” and

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filed under seal with the Court.
12. Documents and information designated Confidential – Source Code also

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may be disclosed to:

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a) The Court.

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b) Court personnel, mediators, special masters, discovery referees, and

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court reporters and videographers recording testimony.
c) Outside counsel for the named parties and employees of such counsel to

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whom it is necessary that the Confidential Attorney’s Eyes Only – Source Code

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Information be disclosed for this litigation.

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d) Outside consultants and experts assisting counsel, so long as each such

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expert or consultant is not an officer, employee or consultant (other than for this

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action) of any party or any non-party competitors of either party and who have

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executed the Acknowledgement attached as Appendix A.
e) Any other person upon the prior written agreement of the party or non-

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party who designated the confidential information as “Attorneys’ Eyes Only –

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Source Code” (which agreement may be recorded in a deposition or other tran-

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script).
13. Producing persons receiving documents designated as “Confidential” or

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“Highly Confidential – Attorneys’ Eyes Only” or “Confidential – Source Code”

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must:
a) not disclose the documents except as permitted under this protective or-

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der.

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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b) use those documents only in the prosecution or defense or any other ef-

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forts by the Parties to obtain insurance or indemnities related to this action; and

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c) maintain those documents in a manner reasonably designed to prevent

their unauthorized disclosure.
14. All producing persons receiving any document designated as “Confiden-

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tial,” “Highly Confidential –Attorneys’ Eyes Only” or “Confidential – Source Code.”

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under Paragraphs 7c)–e) and k), 9b), c), and i) or 12 d) and f) must sign the Ac-

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knowledgment attached as Appendix A. Each producing person disclosing documents

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under Paragraphs 7, 9 and 12 must maintain signed copies of all Acknowledgments

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obtained by that disclosing producing person. If a Party believes, in good faith, the

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other party violated this protective order, that Party must notify the opposing Party in

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writing of such alleged violation and may demand a copy of the executed Acknowl-

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edgment of all persons connected to the suspected violation, which copy must be

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produced within seven days of the demand.

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15. “Confidential,” “Highly Confidential –Attorneys’ Eyes Only” and “Confi-

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dential – Source Code” information does not include, and this protective order does

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not apply to, information disclosed by persons and through methods authorized by

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the information owner to the public or third persons in a manner making such infor-

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mation no longer confidential other than with this protective order.

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16. Nothing in this protective order will prevent the disclosure of documents

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designated as “Confidential” or “Highly Confidential –Attorneys’ Eyes Only” or

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“Confidential – Source Code:”

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a) by the producing person so designating such documents.

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b) by producing persons under terms consented to by the producing person

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designating the document; or
c) by order, after notice to all affected parties.

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
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17. A producing person inadvertently disclosing “Confidential,” “Highly Con-

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fidential – Attorneys’ Eyes Only” or “Confidential – Source Code” documents with-

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out the proper designation may, within 14 days of learning of such disclosure, substi-

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tute properly designated documents for those inadvertently disclosed without desig-

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nation. A producing person receiving designated documents must within 14 days of

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receiving such documents:

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a) attempt to retrieve and destroy all disclosed copies of such documents.

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b) provide written confirmation of the destruction of all disclosed copies of

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such documents; and
c) substitute the properly designated documents.

18. The inadvertent production of “Confidential,” “Highly Confidential – At-

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torneys’ Eyes Only” or “Confidential – Source Code” information without a designa-

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tion constitutes no waiver of the right to claim later a “Confidential” or “Highly Con-

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fidential –Attorneys’ Eyes Only” or “Confidential – Source Code” designation.

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19. By entering this protective order and limiting the disclosure of information,

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the Court does not intend to preclude another court from finding that information

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may be relevant and subject to disclosure in another case. Any person or party subject

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to this protective order who becomes subject to a motion to disclose another party’s

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information designated “Confidential,” “Highly Confidential – Attorneys’ Eyes On-

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ly” or “Confidential – Source Code” under this protective order must promptly notify

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that party to allow the Party to appear and be heard on whether information should be

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disclosed.

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20. A Party must challenge the designation of documents as “Confidential,”

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“Highly Confidential – Attorneys’ Eyes Only” or “Confidential – Source Code” by

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another producing person when the documents are designated, but a Party’s failure to

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challenge the designation will not preclude a later challenge. Upon a challenge to an

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assertion of such designation of confidentiality by a Party, the producing persons

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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must try first to resolve such dispute in good faith and on an informal basis. If the

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producing persons cannot resolve their dispute informally, the producing person

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seeking the confidentiality protection must apply to the Court for a protective order

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specific to those documents. Any challenge to a confidentiality designation must

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comply in full with the joint filing format described in Local Rule 37 for all discov-

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ery motions.

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21. The Parties reserve the right to dispute whether the attorney-client privi-

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lege, work-product doctrine, bank examination privilege, or any other privilege or

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immunity apply to any documents or information provided by the designating pro-

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ducing person and this protective order does not waive or limit any right that the re-

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ceiving Party may have to seek such documents or information.

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22. To streamline discovery and avoiding unnecessary conflicts between the

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Parties, if during this case, a producing person produces or discloses a document that

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the producing person claims to be privileged or protected from discovery by the

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work-product doctrine, the attorney-client privilege or any other privilege or protec-

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tion, the producing person must give notice to the receiving person in writing. Upon

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receipt of such notice, the receiving person must not read or review the contents of

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the document subject to the notice. Within seven days of receiving notice, this docu-

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ment will be returned to the producing person or the receiving person will certify that

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any copies of the document have been retrieved and destroyed, and the receiving per-

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son will certify that all portions of any notes and work product quoting or referring to

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the document have been deleted or destroyed. If the receiving person has disclosed

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the information to others before being notified of the claim of privilege or protection,

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the receiving person must try to retrieve and return or destroy the disclosed infor-

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mation. The receiving person upon receiving a privilege log identifying the document

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or information remains free to challenge any claim of privilege or protection, but

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must make no claim that the production of the document effected a waiver of any

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
2:17-cv-01393-MLH (MRWx)

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privilege or protection. Absent a ruling by a court of competent jurisdiction that the

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document is not privileged or protected, a receiving person may not disclose nor use

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the document or any information disclosed in or derived from the document. To ef-

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fectuate this protective order and protect the efficient process of discovery, docu-

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ments produced during this case, which are claimed to be privileged or protected and

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sought to be reclaimed by a producing person under this paragraph will not be

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grounds by any non-party to argue that any waiver of privilege or protection has oc-

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curred by any production. Any analyses, memoranda or notes created based upon

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such inadvertently-produced information will be treated immediately in conformance

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with the protected nature of the information.
23. Neither agreeing nor complying with this protective order, nor producing

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or receiving any document designated “Confidential,” “Highly Confidential – Attor-

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neys’ Eyes Only” or “Confidential – Source Code” will prejudice the rights of:
a) Any Party or non-party to object to the production of documents it con-

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siders privileged or otherwise not subject to discovery.
b) Any Party to object to the authenticity or admissibility into evidence of

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any documents, testimony or other evidence subject to this protective order.
c) Any Party or non-party to seek a determination by the Court of whether

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any documents designated “Confidential,” “Highly Confidential – Attorneys’

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Eyes Only” or “Confidential – Source Code” should be subject to this protective

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order.

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d) Any Party to object to the production of documents or information.

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e) Any Party to move for an order compelling the production of documents

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or information.
f) Any Party to move for modification of this protective order.

24. Nothing in this protective order prevents a producing person from using its
own documents designated “Confidential,” “Highly Confidential – Attorneys’ Eyes

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
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Only” or “Confidential – Source Code” for any purpose. Nothing in this protective

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order will be construed to prevent a producing person who has designated documents

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“Confidential,” “Highly Confidential – Attorneys’ Eyes Only” or “Confidential –

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Source Code” from agreeing to release any such documents, information or materials

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from the requirements of this protective order. If it does so, it must notify the other

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Parties in writing. A producing person may waive it rights under this protective order

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by a writing stating its intent to waive such rights.

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25. After the final resolution, including any appeals, this protective order will
continue to be binding, except regarding those documents and information that be-

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come a matter of public record. The Court retains and will have continuing jurisdic-

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tion over the parties and recipients of “Confidential,” “Highly Confidential –

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Attorneys’ Eyes Only” and or “Confidential – Source Code” information to enforce

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this protective order following the termination. Within 60 days of the final resolution,

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including any appeals, counsel for the Parties must make reasonable efforts either to:

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a) assemble and return to the producing person providing information des-

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ignated as “Confidential,” “Highly Confidential – Attorneys’ Eyes Only” or “Con-

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fidential – Source Code” all such documents in his or her possession or

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b) destroy all such documents in its possession, delivering to the producing

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person providing such documents a written certificate he or she has complied with

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this protective order.

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26. Notwithstanding the duties in paragraph 24a) and b) the Parties and their

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outside counsel may (1) retain one set of designated materials to document the sub-

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stance and disposition of the claims and defenses, and (2) retain designated materials

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to the limited extent required by their internal document retention policies and proce-

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dures and their regulatory obligations, so long as such designated materials are treat-

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ed and maintained under this protective order. The Parties receiving designated mate-

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
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rials may keep their attorney work product referring or relating to any designated ma-

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terial.

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27. Deleted.

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28. Under Central District Local Rule 79-1, if any papers to be filed with the

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Court contain information or documents designated as “Confidential,” “Highly Con-

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fidential – Attorneys’ Eyes Only” or “Confidential – Source Code” the proposed fil-

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ing will be accompanied by an application to file the papers or the portion of the pa-

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pers containing the designated information or documents (if the portion can be segre-

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gated) under seal. The application will be directed to the judge to whom the papers

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are directed. For motions, the parties will publicly file a redacted version of the mo-

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tion and memorandum to support the motion.

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29. The Parties may amend this protective order by agreement in a writing
signed by an authorized representative of each Party and approved by the Court.

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30. Any non-party served with a subpoena or other request for discovery by a

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Party may avail itself of this protective order by providing written notice to the Par-

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ties and by signing the Acknowledgement attached as Appendix A.

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November 30, 2017

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/s/ Jonathan Pearce
Jonathan Pearce
SOCAL IP LAW GROUP LLP
Attorneys for Defendant Zwift, Inc.

Under Local Rule 5-4.3.4, Jonathan Pearce attests that the following signatory
concurs in the filing’s content and has authorized the filing.
November 30, 2017

/s/ Matthew M. Wawrzyn
Matthew M. Wawrzyn (pro hac vice)
WAWRZYN & JARVIS LLC
Counsel for POWERbahn, LLC
FOR GOOD CAUSE SHOWN, IT IS SO ORDERED.

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Dated: _December 1, 2017_
Honorable Michael R. Wilner

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
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Appendix A

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA–WESTERN DIVISION
POWERbahn, LLC,
Plaintiff,

No. 2:17-cv-01393-MLH (MRWx)

v.

Protective Order Acknowledgment

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Zwift, Inc.,
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Defendant.

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I have been provided with a copy of the Stipulated Protective Order entered in

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this case (the “Order”) and understand the Order. I also understand that any “Confi-

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dential,” “Highly Confidential – Attorneys’ Eyes Only” or “Confidential – Source

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Code” documents within the meaning of the Order shown to me are confidential, will

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be used by me only as designated and provided in the Order, and will not be disclosed

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by me unless permitted under the Order. By executing this Acknowledgment, I agree

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to be bound by the Order and agree to consent to venue and jurisdiction for enforce-

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ment of the Order.
Signature:

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Print Name:

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Date Signed:

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Stipulated Protective Order

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POWERbahn, LLC, v. Zwift, Inc.,
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