General Electric Co. v. Vestas Wind Systems A S et al

Filing 76

STIPULATED PROTECTIVE ORDER by Magistrate Judge Paul L. Abrams re Stipulation for Protective Order 75 . (ch)

Download PDF
1 2 3 4 5 MILES J. FELDMAN (Bar No. 173383) mfeldman@raineslaw.com LAITH D. MOSELY (Bar No. 250832) lmosely@raineslaw.com RAINES FELDMAN LLP 1800 Avenue of the Stars, 12th Floor Los Angeles, California 90067 Telephone: +1 310 440 4100 Facsimile: +1 310 691 1367 10 DAVID J. LENDER (pro hac vice) david.lender@weil.com ANISH DESAI (pro hac vice) anish.desai@weil.com WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153-0119 Telephone: +1 212 310 8000 Facsimile: +1 212 310 8007 11 Attorneys for Plaintiff and Counter-Defendant 12 17 Morgan Chu (Bar No. 70446) mchu@irell.com Gary N. Frischling (Bar No. 130583) gfrischling@irell.com Amy E. Proctor (Bar No. 283845) aproctor@irell.com IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 18 Attorneys for Defendants and Counterclaimants 6 7 8 9 13 14 15 16 19 UNITED STATES DISTRICT COURT 20 CENTRAL DISTRICT OF CALIFORNIA 21 WESTERN DIVISION AT LOS ANGELES 22 General Electric Co., 23 Plaintiff and Counter-Defendant, 24 25 26 Case No. 2:17-cv-05653-AB-PLA STIPULATED PROTECTIVE ORDER vs. Vestas Wind Systems A/S, et al., Defendants and Counterclaimants. 27 28 Protective Order Case No. 2:17-cv-05653-AB-PLA 1 2 Good Cause Statement The parties agree that certain information subject to discovery in this action 3 may contain trade secrets, pricing information, customer lists, source code, technical 4 drawings and reports, business and/or marketing plans or analysis, and other valuable 5 research, development, commercial, financial, technical, and/or other confidential, 6 proprietary, and/or commercially-sensitive information for which special protection 7 from public disclosure and from use for any purpose other than prosecution of this 8 action is warranted. Such confidential, proprietary, and commercially sensitive 9 materials and information consist of, among other things, confidential business and 10 financial information, confidential technical information, and other confidential 11 research, development, and commercial information, including information 12 implicating the privacy rights of third parties. In the interest of protecting that 13 information, permitting discovery to proceed without delay occasioned by disputes 14 regarding such information, addressing the handling of the information at the end of 15 the litigation, and serving the ends of justice, the parties agree to the protective 16 provisions set forth below. It is the intent of the parties that information will not be 17 designated as confidential for tactical reasons and that nothing will be designated 18 without a good faith belief that it has been maintained in a confidential, non-public 19 manner, and there is good cause why it should not be part of the public record of this 20 case. In view of these stipulations, and good cause appearing, the Court enters this 21 Protective Order pursuant to Federal Rule of Civil Procedure 26(c). 22 23 Scope and Definitions 1. This Protective Order applies to all information, documents, testimony 24 and/or things subject to discovery in this action which contain non-public, confidential 25 information and/or trade secrets designated as Protected Material pursuant to the terms 26 of this Order; as well as any secondary material, such as pleadings, written discovery, 27 expert reports, notes, summaries or any other materials that contain, describe or reflect 28 such information (collectively referred to herein as “Protected Material”). Protective Order 2 Case No. 2:17-cv-05653-AB-PLA 1 2 2. Protected Material may be designated as such by any Producing Party by designating it as: a. 3 “CONFIDENTIAL BUSINESS INFORMATION – 4 ATTORNEYS’ EYES ONLY” if it contains or reflects information that is 5 confidential, proprietary and/or commercially sensitive in nature, including 6 information that is (i) non-public technical financial, and/or other 7 competitively-sensitive information and/or trade secrets, (ii) subject to an 8 express obligation of confidentiality owed by the Producing Party to a third- 9 party, or (iii) subject to the privacy interest of any individual; b. 10 “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” if 11 it contains or reflects highly competitively-sensitive information that is 12 confidential and/or proprietary, including (i) non-public technical, financial, 13 and/or other competitively-sensitive information and/or trade secrets, or (ii) 14 subject to an express obligation of confidentiality owed by the Producing Party 15 to a third-party; or c. 16 “HIGHLY CONFIDENTIAL SOURCE CODE – OUTSIDE 17 COUNSEL ONLY” if it comprises or describes computer Source Code. Source 18 Code means computer code, scripts, assembly, object code, Source Code 19 listings, object code listings and descriptions of object code, Hardware 20 Description Language (HDL) or Register Transfer Level (RTL) files that 21 describe the hardware design of any ASIC or other chip, and formulas, 22 engineering specifications, or schematics that define or otherwise describe in 23 detail the algorithms or structure of software. Source Code documents at least 24 include (1) printed documents that contain or refer to selected Source Code 25 components; (2) electronic communications and descriptive documents, such as 26 emails, design documents and programming examples, which contain or refer to 27 selected Source Code components; (3) electronic Source Code documents that 28 reside in a Source Code repository from which software and related data files Protective Order 3 Case No. 2:17-cv-05653-AB-PLA 1 may be compiled, assembled, linked, executed, debugged and/or tested; and (4) 2 transcripts, reports, video, audio, or other media that include, quote, cite, 3 describe, or otherwise refer to Source Code, Source Code files, and/or the 4 development thereof. Source Code files include, but are not limited to 5 documents containing source code in “C”, “C++”, Java, Java scripting 6 languages, assembler languages, command languages and shell languages. 7 Source Code files may further include “header files,” “make” files, project files, 8 link files, and other human-readable text files used in the generation, 9 compilation, translation, and/or building of executable software, including 10 software intended for execution by an interpreter. Documents and things 11 produced during the course of this litigation designated with the label 12 “HIGHLY CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL 13 ONLY,” shall be protected in accordance with this Protective Order and subject 14 to additional protections provided herein below. 15 3. As used herein, “Producing Party” shall refer to any party to this action, 16 any third-party (whether voluntarily or pursuant to subpoena), or any agent of such 17 party or third-party, who discloses, testifies about, produces or makes available for 18 inspection any Protected Material. 19 20 4. such party, who requests or receives Protected Material from a Producing Party. Permitted Disclosure and Use of Protected Material 21 22 23 24 “Receiving Party” shall refer to any party to this action, or any agent of 5. Protected Material shall not be distributed, disclosed or made available to anyone except as expressly provided in this Order. 6. Protected Material shall be used solely for this litigation and any related 25 appeals, and shall not be used for any other purpose whatsoever, including without 26 limitation any other litigation, patent prosecution or acquisition, patent reexamination 27 or reissue proceedings or any business or competitive purpose or function of any kind. 28 Protective Order 4 Case No. 2:17-cv-05653-AB-PLA 1 2 Persons Who May Access Protected Material Other Than Source Code 7. “Confidential Business Information – Attorneys’ Eyes Only” Material. 3 Only the following individuals shall have access to materials designated 4 “CONFIDENTIAL BUSINESS INFORMATION – ATTORNEYS’ EYES ONLY,” 5 absent the express written consent of the Producing Party, or as further limited by this 6 Order or further order of this Court: a. 7 Outside counsel of record for the parties to this action, including 8 any attorneys, paralegals, technology specialists and clerical employees of their 9 respective law firms assisting in the litigation; b. 10 Up to three in-house counsel of each Receiving Party (or its parent 11 corporation) who are responsible for supervising this action and have complied 12 with Paragraph 9, and any paralegals or clerical employees assisting them in the 13 litigation; c. 14 Outside experts and consultants of the Receiving Party who have 15 been pre-approved in accordance with Paragraph 10, and their support staff and 16 clerical employees assisting in the litigation; d. 17 The Court, its technical advisor (if one is appointed), court 18 personnel, the jury, court reporters and/or videographers who record testimony 19 or other proceedings in this action; e. 20 Professional litigation support vendors, including but not limited to 21 copy, graphics, translation, database and/or trial support and/or trial consulting 22 services (“Professional Vendor”), who shall be provided a copy of this 23 Protective Order and execute Exhibit A, and mock jurors hired by trial 24 consultants but only in accordance with Paragraph 11 below; and f. 25 While testifying at deposition in this action only: (i) any current or 26 former officer, director or employee of the Producing Party or original source of 27 the information; (ii) any person designated by the Producing Party to provide 28 testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure; Protective Order 5 Case No. 2:17-cv-05653-AB-PLA 1 (iii) any person who authored, previously received or was directly involved in 2 the specific matter(s) addressed in the Protected Material, as evident from its 3 face or reasonably certain in view of other testimony or evidence; and (iv) as to 4 information provided by a named inventor of the patent-in-suit, or by an 5 attorney, agent, parent or affiliate of Plaintiff, the Plaintiff’s Rule 30(b)(6) 6 designee. Persons authorized to view Protected Material pursuant to this sub- 7 paragraph (f) shall not retain or be given copies of the Protected Material except 8 while so testifying. 9 g. Any mediator who is assigned to hear this matter, and his or her 10 staff, subject to their agreement to maintain confidentiality to the same degree 11 as required by this Protective Order; and h. 13 Any other person with the prior written consent of the Producing i. 12 “Highly Confidential – Outside Counsel Only” Material. Only Party. 14 15 individuals identified in paragraphs 7(a), (c)-(h) may have access to materials 16 designated “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” 17 absent express written consent of the Producing Party, or as further limited by 18 this Order or further order of this Court. 19 Source Code – Additional Restrictions and Persons Who May Access 20 8. “Highly Confidential Source Code – Outside Counsel Only” Materials. 21 To the extent production of Source Code becomes necessary to the prosecution or 22 defense of this case, a Producing Party may designate Source Code as “HIGHLY 23 CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL ONLY” if it comprises 24 or includes confidential, proprietary, and/or trade secret Source Code. a. 25 Nothing in this Order shall be construed as a representation or 26 admission that Source Code is properly discoverable in this action, or to 27 obligate any Party to produce any Source Code. b. 28 Protective Order Material designated as “HIGHLY CONFIDENTIAL SOURCE 6 Case No. 2:17-cv-05653-AB-PLA 1 CODE – OUTSIDE COUNSEL ONLY” shall be subject to the following 2 additional restrictions and protections: 3 i. A single electronic copy of Source Code or executable code 4 shall be made available for inspection on a stand-alone, non-networked 5 computer without Internet access provided by the Producing Party (“the 6 Source Code Computer”) during the hours of 9:00 A.M. – 7:00 P.M. on 7 business days, subject to 5 days advance notice prior to the first 8 inspection of the Source Code and at least forty-eight hours advance 9 notice for subsequent inspections, which 48-hour period shall include one 10 cumulative business day. For example, notice for a Monday 2:00 P.M. 11 inspection shall be given no later than the preceding Friday at 2:00 P.M. ii. 12 The Producing Party shall not unreasonably withhold 13 consent to reasonable requests for access to the Source Code Computer 14 beyond the hours listed in subparagraph 8(b)(i). iii. 15 The Source Code Computer provided by the Producing 16 Party shall run a reasonably current version of a mutually agreed upon 17 operating system such as Apple OS X, Microsoft Windows, Linux, or 18 SunOS and appropriate, mutually agreed, tools to permit searching and 19 review of the Source Code as per paragraph 8(b)(xiii). iv. 20 The Source Code Computer shall be password protected and 21 supplied by the Producing Party. At the option of the Producing Party, 22 the Source Code Computer may be further protected using PGP 23 encryption. 24 v. The Source Code Computer shall be located and secured at an office of Producing Party’s counsel selected by the Receiving Party. 25 vi. 26 Any external storage media containing Source Code shall be 27 disconnected from and/or removed from its Source Code Computer and 28 stored in a locked room, safe or storage cabinet when Source Code is not Protective Order 7 Case No. 2:17-cv-05653-AB-PLA 1 being reviewed. The Source Code Computer and any such safe or storage 2 cabinet must be kept in a locked and secure room. 3 vii. The Producing Party shall not learn the specifics of the 4 Receiving Party’s review, including without limitation which files were 5 reviewed, unless and to the extent that the Receiving Party and/or its 6 expert(s) elect to rely on information learned in such review in 7 prosecution or defense of the Receiving Party’s case. The Producing 8 Party shall not change the Source Code on the Source Code Computer 9 absent written request or permission by the Receiving Party. viii. 10 No recordable media or recording devices, other than a 11 cellular telephone and a computer used strictly for taking notes, shall be 12 permitted into the room where the Source Code is reviewed. Photographs 13 or imaging of the Source Code or Source Code Computer is prohibited. 14 The Receiving Party’s outside counsel and/or experts shall be entitled to 15 take notes relating to the Source Code but may not copy the Source Code 16 into the notes and may not take such notes electronically on the Source 17 Code Computer itself. No copies of all or any portion of the Source Code 18 may leave the room in which the Source Code is inspected except as 19 otherwise provided herein. Further, no other written or electronic record 20 of the Source Code is permitted except as otherwise provided herein. The 21 Producing Party may visually monitor the activities of the Receiving 22 Party’s representatives during any Source Code review, but only to 23 ensure that no unauthorized electronic records of the Source Code and 24 that no information concerning the Source Code are being created or 25 transmitted in any way. No video may be made of any activity taking 26 place in the room where Source Code is reviewed, nor shall the monitor 27 be permitted to report on any activities therein other than as may relate to 28 the above-referenced purpose of the monitoring. Oral recording and/or Protective Order 8 Case No. 2:17-cv-05653-AB-PLA 1 transcription is not permitted in the room where the Source Code is 2 reviewed. 3 ix. Except as agreed to by the Producing Party pursuant to 4 subparagraphs 8(b)(xiv) and 8(b)(xv), Source Code or details about how 5 it is implemented may not be disclosed, printed, photographed, copied, 6 removed, electronically transmitted or otherwise reproduced without the 7 agreement of the Producing Party or further order of the Court. 8 Summaries, descriptions or accounts of Source Code may be shared only 9 with outside counsel representing the Receiving Party and Outside 10 Experts and Consultants as defined in paragraph 10 for the Receiving 11 Party, each of whom shall be subject to this Protective Order. The 12 Receiving Party shall not tamper with any safeguards designed to prevent 13 these activities or otherwise attempt to circumvent any provision of this 14 paragraph 8. High-level descriptions of how software functions may be 15 disclosed to Mock Jurors as defined and subject to the restrictions of 16 paragraph 11 as long as the Source Code is not disclosed to the Mock 17 Jurors and the Mock Jurors have agreed to be bound by the Protective 18 Order. 19 x. No electronic copies of Source Code shall be made 20 (including by way of example only, the Receiving Party may not scan the 21 source code to a PDF or photograph the code), other than volatile copies 22 necessarily made in the course of loading, accessing, compiling, 23 modeling and/or executing the Source Code on the Source Code 24 Computer. Images or copies of the protected Source Code shall not be 25 included in correspondence between the parties (references to production 26 numbers, file paths, or file names shall be used instead), and shall be 27 omitted from pleadings and other papers whenever possible. Counsel 28 shall use the following procedure in meeting and conferring regarding the Protective Order 9 Case No. 2:17-cv-05653-AB-PLA 1 use of protected Source Code in filings: If the Receiving Party reasonably 2 believes that it needs to submit a portion of protected Source Code as part 3 of a filing with the Court, the Receiving Party shall make that request to 4 the Producing Party in writing. As soon as practicable thereafter, but in 5 no event later than three (3) business days following that request, the 6 parties shall meet and confer as to how to make such a filing while 7 protecting the confidentiality of the protected Source Code. Such filing 8 will not be made absent consent from the Producing Party that the 9 confidentiality protections will be adequate or a showing that the 10 Receiving Party has good cause for the adequacy of protections afforded 11 to that protected Source Code. The parties further agree to use no more 12 protected Source Code in such filings than is reasonably necessary to 13 accomplish the purpose for which the protected Source Code is being 14 relied upon. 15 xi. The Producing Party shall provide a manifest of the contents 16 of the Source Code Computer. This manifest, which will be supplied in 17 both printed and electronic form, will list the name and location of every 18 source and executable file escrowed on the computer. xii. 19 Source Code must be produced as it is stored in the ordinary course of business. 20 xiii. 21 The Source Code Computer shall include software utilities 22 which will allow counsel and experts to view, search, and analyze the 23 Source Code. At a minimum, these utilities must provide the ability to (a) 24 view, search, and line-number any source file, (b) search for a given 25 pattern of text through a number of files, (c) compare two files and 26 display their differences, and (d) compute the MD5 checksum of a file. 27 The Receiving Party's outside counsel and/or experts may request that 28 commercially available licensed software tools for viewing and searching Protective Order 10 Case No. 2:17-cv-05653-AB-PLA 1 Source Code be installed on the Source Code Computer. The Receiving 2 Party must provide the Producing Party with the CD or DVD containing 3 such software tool(s) at least four business days in advance of the 4 inspection. 5 xiv. Subject to the parties’ reaching an agreement on a 6 reasonable security protocol for the storage and handling of printouts of 7 the Producing Party’s Source Code, the Receiving Party may print 8 portions of Source Code reasonably necessary for the case to attach to or 9 incorporate into expert reports, discovery responses, and court filings or 10 for use at depositions of the Producing Party, the Producing Party’s 11 current or former employees subject to the conditions and restrictions set 12 forth in subparagraphs 7(f) and 8(b)(xv), or the Producing Party’s 13 experts, and court proceedings. The Producing Party shall make available 14 a printer with commercially reasonable printing speeds for printing 15 portions of the Source Code. The Producing Party must allow the 16 Receiving Party to print paper copies of portions of Source Code not to 17 exceed twenty-five (25) contiguous pages, up to a total of five hundred 18 (500) printed pages for the sole use of outside counsel for the party to this 19 action requesting Source Code, Outside Experts and Consultants as 20 defined in paragraph 10, the Court, its technical advisor (if one is 21 appointed), the jury, court personnel, and court reporters or 22 videographers recording testimony or other proceedings in this action. In 23 the event that a Receiving Party believes there is a need to print a 24 contiguous portion of Source Code exceeding twenty-five (25) pages in 25 length or more than five hundred (500) pages total, the parties shall meet 26 and confer regarding such need on the day of the inspection if practicable 27 or otherwise as soon thereafter as possible and absent agreement, seek a 28 Court resolution. The Receiving Party shall not print Source Code in Protective Order 11 Case No. 2:17-cv-05653-AB-PLA 1 order to review blocks of Source Code elsewhere in the first instance, i.e., 2 as an alternative to reviewing that Source Code electronically on the 3 Source Code Computer. The Producing Party shall pre-mark the pages in 4 the printer with bates numbers and the “HIGHLY CONFIDENTIAL 5 SOURCE CODE – OUTSIDE COUNSEL ONLY” designation. Upon 6 printing any such portions of Source Code, the printed pages shall be 7 collected by the Producing Party, and the Producing Party will deliver a 8 copy of the printed pages to the Receiving Party or object within two 9 business days. Outside counsel for the Producing Party will keep the 10 originals of printed Source Code. If there is an objection and if after 11 meeting and conferring the Producing Party and the Receiving Party 12 cannot resolve the objection, the Producing Party shall be entitled to seek 13 a resolution from the Court of whether the printed Source Code in 14 question is narrowly tailored and was printed for a permitted purpose. 15 The printed pages shall constitute part of the Source Code produced by 16 the Producing Party in this action. The Receiving Party’s outside counsel 17 of record may make no more than five (5) additional paper copies of any 18 printed Source Code document received from a Producing Party, not 19 including copies attached to court filings or used at depositions under 20 Paragraph 8(b)(xv), and shall maintain a log of all paper copies of the 21 Source Code received from a Producing Party. The log shall include the 22 names of the reviewers and/or recipients of paper copies and locations 23 where the paper copies are stored. Upon reasonable notice to the 24 Receiving Party by the Producing Party, the Receiving Party shall 25 provide a copy of this log to the Producing Party. 26 xv. Copies of Source Code that are marked as deposition 27 exhibits shall not be provided to the court reporter or attached to 28 deposition transcripts; rather, the deposition record will identify the Protective Order 12 Case No. 2:17-cv-05653-AB-PLA 1 exhibit by its production numbers. All paper copies of Source Code 2 brought to the deposition shall be securely destroyed in a timely manner 3 following the deposition. 4 xvi. The party inspecting Source Code shall maintain a log of all 5 individuals who have accessed the Source Code Computer. The log shall 6 be made available to the Producing Party upon reasonable request. The 7 log shall include the name of each person who accessed the Source Code 8 Computer. Such log and any information from it shall be inadmissible in 9 this litigation except in connection with proceedings before the Court regarding any alleged violations of this Protective Order. 10 xvii. 11 If the Court finds that the Producing Party has refused to 12 make available for inspection any files necessary to the prosecution or 13 defense of this case, then the Court may fashion appropriate relief 14 regarding such files to the extent necessary to the prosecution or defense 15 of this case. xviii. 16 Any consultant or expert retained on behalf of a party to this 17 action who is to be given access to the Producing Party's protected 18 Source Code (whether in electronic form or otherwise) must agree in 19 writing not to write Source Code directly intended for commercial 20 purposes relating to (1) low-voltage ride through technology for use in 21 wind turbines or (2) zero-voltage ride through technology for wind 22 turbines for a period of two (2) years after issuance of a final, non- 23 appealable decision resolving all issues in this action. This shall not 24 preclude such consultants and experts from any academic work or 25 consulting in future litigation, so long as such consulting does not involve 26 writing Source Code directly intended for commercial purposes relating 27 to the technology at issue in this litigation. 28 Protective Order 13 Case No. 2:17-cv-05653-AB-PLA 1 xix. At the end of the above-styled litigation (including any 2 related appeals), any entity receiving Source Code will certify that: (a) all 3 printed copies of Source Code have been returned, with the exception of 4 exhibits that were attached to filed pleadings or admitted into evidence; 5 (b) any electronic storage or memory media which may contain Source 6 Code have been returned, fully reformatted, and/or destroyed; and (c) any 7 access logs maintained by counsel have been archived along with 8 counsel's other records from this litigation. Other than set forth in this 9 subparagraph, counsel may not maintain a file copy of Source Code 10 material. 11 12 Approval to Access to Protected Material 9. In-House Counsel, Party Representatives and Professional Vendors. 13 Any in-house counsel, party representative or Professional Vendor authorized to 14 access “CONFIDENTIAL BUSINESS INFORMATION – ATTORNEYS’ EYES 15 ONLY” pursuant to Paragraph 7 of this Order shall read this Protective Order and sign 16 the “Agreement to Be Bound By Protective Order,” attached as Exhibit A to this 17 Protective Order, which shall be retained by the signing party’s outside counsel of 18 record in this action. Prior to the disclosure of any “CONFIDENTIAL BUSINESS 19 INFORMATION – ATTORNEYS’ EYES ONLY” information to any in-house 20 counsel or party representative, the signing party shall inform the other party in 21 writing of the name and title of such in-house counsel or party representative. 22 10. 23 Outside Experts or Consultants. a. Prior to disclosing Protected Material to any outside experts or 24 consultants, the party seeking to disclose such information shall provide written 25 notice to any party to this action that produced Protected Material that includes: 26 (i) the name of the person; (ii) the present employer and title of the person; (iii) 27 an up-to-date curriculum vitae; (iv) a list of current and past consulting 28 relationships undertaken within the last four (4) years; and (v) a signed copy of Protective Order 14 Case No. 2:17-cv-05653-AB-PLA 1 the person’s “Agreement to Be Bound By Protective Order,” attached as 2 Exhibit A to this Protective Order. 3 b. Within five (5) business days of receiving this information, the 4 party who produced Protected Material may object in writing to its disclosure to 5 the proposed expert or consultant for good cause. The objection cannot be 6 unreasonable. In the absence of any objection at the end of the five (5) day 7 period, the expert or consultant shall be deemed approved under this Protective 8 Order. If an objection is made, the parties shall meet and confer within (5) 9 business days after the objection and attempt in good faith to resolve the dispute 10 informally. If the dispute is not resolved, the party objecting to the disclosure 11 will have five (5) business days from the date of the meet and confer to seek 12 relief from the Court. If relief is not sought from the Court within that time, the 13 objection shall be deemed withdrawn. If relief is sought, Protected Materials 14 shall not be disclosed to the expert or consultant until the objection is resolved 15 by the Court. 16 11. Mock Jurors. Mock jurors hired by trial consultants in connection with 17 this litigation may only be told about or shown “CONFIDENTIAL BUSINESS 18 INFORMATION – ATTORNEYS’ EYES ONLY” and “HIGHLY CONFIDENTIAL 19 – OUTSIDE COUNSEL ONLY” materials provided: (1) they are not affiliated with 20 any party to this case or their direct competitor; (2) they agree in writing to be bound 21 by confidentiality; and (3) they are not themselves given custody of any Protected 22 Materials, nor permitted to remove any presentations, questionnaires or notes taken 23 during the exercise from any room in which the research is conducted. 24 25 Making and Challenging Designations 12. Each party or third-party that designates material for protection under this 26 Order must take care to limit such designations only to material that the party believes 27 in good faith meets the appropriate standards. 28 13. Protective Order Designations of Protected Material shall be made in substantially the 15 Case No. 2:17-cv-05653-AB-PLA 1 following manner: 2 a. For documents or written discovery. The Producing Party may 3 designate documents or written discovery responses by affixing the following 4 legend “CONFIDENTIAL BUSINESS INFORMATION – ATTORNEYS’ 5 EYES ONLY”, “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” 6 or “HIGHLY CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL 7 ONLY”. Documents made available for inspection need not be designated in 8 advance and shall be treated as “CONFIDENTIAL BUSINESS 9 INFORMATION – ATTORNEYS’ EYES ONLY” until the Producing Party 10 provides copies of documents identified by the inspecting party for production 11 affixed with the appropriate legend. b. 12 For depositions or other testimony. Parties or third-parties 13 providing testimony may designate depositions, or portions of depositions, as 14 Protected Material by indicating the appropriate designation on the record 15 before the close of the deposition, hearing or other proceeding, or by notifying 16 the court reporter and all counsel in writing of the appropriate designation 17 within seven (7) business days after receiving the transcript, during which seven 18 (7) day period the deposition transcript shall be treated as HIGHLY 19 CONFIDENTIAL – OUTSIDE COUNSEL ONLY. The party making the 20 designation shall make arrangements with the court reporter to label the 21 relevant pages with the appropriate designation. Video or DVD versions of the 22 depositions will automatically have the same designation as the transcript. c. 23 For tangible things and other information. A Producing Party shall 24 affix the appropriate legend prominently on any tangible thing or media, or on 25 the exterior of any case or container in which the information or item is stored. 26 If the Receiving Party prints an item from an electronic medium, the Receiving 27 Party must immediately mark any unmarked pages of the printed version with 28 the designation of the media. A Producing Party may designate any other Protective Order 16 Case No. 2:17-cv-05653-AB-PLA 1 Protected Material not in documentary, tangible or physical form by informing 2 the Receiving Party of the designation in writing at or before the time of 3 production or inspection. 4 d. Native Files. Where electronic files and documents are produced in 5 native electronic format, such electronic files and documents shall be 6 designated for protection under this Order by appending to the file names or 7 designators information indicating whether the file contains “CONFIDENTIAL 8 BUSINESS INFORMATION – ATTORNEYS’ EYES ONLY”, “HIGHLY 9 CONFIDENTIAL – OUTSIDE COUNSEL ONLY” or “HIGHLY 10 CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL ONLY,” material, 11 or shall use any other reasonable method for so designating Protected Materials 12 produced in electronic format. When electronic files or documents are printed 13 for use at deposition, in a court proceeding, or for provision in printed form to 14 an expert or consultant pre-approved pursuant to paragraph 10, the party 15 printing the electronic files or documents shall affix a legend to the printed 16 document corresponding to the designation of the designating party and 17 including the production number and designation associated with the native file. 18 In the case of a Source Code review or inspection, the “party printing the 19 electronic files or documents” refers to the Producing Party. 20 14. Inadvertent failure to designate documents, testimony or things as 21 Protected Materials does not waive the Producing Party’s right to secure the 22 protections of this Order. The Producing Party must notify the Receiving Party in 23 writing of the inadvertent failure to designate promptly upon its discovery and take 24 whatever steps are necessary to replace the documents with documents containing the 25 appropriate legends or otherwise designate the materials as set forth above. The 26 Receiving Party shall not be held in violation of this Order for any otherwise 27 permissible disclosures made before receipt of such notice. Upon receiving the written 28 notice, the Receiving Party must promptly make all reasonable efforts to assure that Protective Order 17 Case No. 2:17-cv-05653-AB-PLA 1 the material is treated in accordance with the corrected designation, including seeking 2 the retrieval or destruction of any copies distributed to unauthorized individuals; and 3 destroy copies of documents that have been replaced with documents containing the 4 proper designation. 5 15. At any time in these proceedings following the production or designation 6 of material as “CONFIDENTIAL BUSINESS INFORMATION – ATTORNEYS’ 7 EYES ONLY”, “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” or 8 “HIGHLY CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL ONLY,” a 9 Receiving Party may challenge the propriety of such designation by providing the 10 Producing Party written notice particularly identifying the documents or information 11 that the Receiving Party contends should be differently designated. The parties shall 12 meet and confer in an attempt to resolve promptly and informally any such disputes. If 13 agreement cannot be reached, the Receiving Party may request in accordance with the 14 Court’s rules governing discovery disputes that the Court cancel or modify the 15 designation. The Challenging Party shall initiate the dispute resolution process under 16 Local Rule 37-1, et seq. Any discovery motion must strictly comply with the 17 procedures set forth in Local Rules 37-1, 37-2, and 37-3. 18 16. Information does not qualify for protection under this Order and none of 19 its provisions apply to such information if it: (a) is available to the general public at 20 the time of its production, or becomes available to the general public after its 21 production through no fault of the Receiving Party; (b) was independently and legally 22 obtained by the Receiving Party from any other person or party having no obligation 23 of confidentiality and the right to make such disclosure; or (c) was previously 24 produced, disclosed or provided by the Producing Party to the Receiving Party 25 without an obligation of confidentiality, except for materials covered under paragraph 26 14 above. 27 28 Protective Order 18 Case No. 2:17-cv-05653-AB-PLA 1 2 Filing Under Seal 17. All transcripts of depositions, exhibits, answers to interrogatories, 3 pleadings, briefs, and other documents submitted to the Court that have been 4 designated as “CONFIDENTIAL BUSINESS INFORMATION – ATTORNEYS’ 5 EYES ONLY”, “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” or 6 “HIGHLY CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL ONLY,” or 7 which contain information so designated, shall be filed under seal in accordance with 8 Local Rule 79-5. Restriction on Patent Prosecution 9 10 18. Counsel (including without limitation outside counsel and in-house 11 counsel, and patent agents) of the Receiving Party who actually view “HIGHLY 12 CONFIDENTIAL – OUTSIDE COUNSEL ONLY” or “HIGHLY CONFIDENTIAL 13 SOURCE CODE – OUTSIDE COUNSEL ONLY” materials of any Producing Party 14 shall not up until one year following final resolution of this action, or the date of last 15 access to such materials, draft, amend, or assist in drafting or amending patent claims 16 related to wind turbine systems; provided that nothing in this paragraph shall operate 17 to preclude any such person from fulfilling and/or assisting in the fulfillment of any 18 prior art disclosure obligations to the United States Patent and Trademark Office 19 (PTO) that may arise as a consequence of knowledge obtained during the course of 20 this litigation. 21 19. If any inter partes review proceedings relating to the patents-in-suit are 22 instituted in the future, the Parties agree that counsel (including without limitation 23 outside counsel and in-house counsel, and patent agents) may participate in such inter 24 partes review proceedings. But, absent the express written consent of the Producing 25 Party, any individuals of the Receiving Party (including those identified in paragraph 26 7, such as outside counsel and outside experts and consultants) who have access to 27 materials designated “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” 28 or “HIGHLY CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL ONLY”, Protective Order 19 Case No. 2:17-cv-05653-AB-PLA 1 will not participate in, or provide any assistance for, any amendment of the claims of a 2 patent-in-suit as part of an inter partes review proceeding. 3 4 Use of This Protective Order by Third-Parties 20. A third-party, not a party to this action, who produces documents, 5 testimony or other information, including Source Code, voluntarily or pursuant to a 6 subpoena or a court order, may designate such material or information in the same 7 manner and shall receive the same level of protection under this Protective Order as 8 any party to this lawsuit. A third party may, at its option, designate Source Code 9 material as “CONFIDENTIAL BUSINESS INFORMATION – ATTORNEY’S EYES 10 ONLY” or “HIGHLY CONFIDENTIAL SOURCE CODE – OUTSIDE COUNSEL 11 ONLY” and then produce in accordance with the procedure in place for that particular 12 category; or may, at its option, produce “HIGHLY CONFIDENTIAL SOURCE 13 CODE – OUTSIDE COUNSEL ONLY” material directly to a Receiving Party 14 without the additional restrictions of paragraph 8(b). 15 16 21. party access to any Protected Material produced by any party in this case. Additional Protection 17 18 A third-party’s use of this Protective Order does not entitle that third- 22. This Protective Order is entered without prejudice to the right of any 19 party to seek different or additional protections if it believes the protections of this 20 Order are not applicable or are inadequate. Nothing herein shall be deemed to 21 preclude any Producing Party from seeking such different or additional protection, 22 including that certain matter not be produced at all. No Waiver 23 24 23. Execution of this Protective Order shall not constitute a waiver of the 25 right of any party to claim in this action or otherwise that any Protected Material, or 26 any portion thereof, is privileged or otherwise non-discoverable, or is not admissible 27 in evidence in this action or any other proceeding. 28 Protective Order 20 Case No. 2:17-cv-05653-AB-PLA 1 2 3 Inadvertent Production of Privileged Materials 24. The parties agree to handle the inadvertent production of document(s) or other material subject to privilege as follows: a. 4 The production or disclosure of any information (including 5 documents) in this action that a party or non-party later claims should not have 6 been produced due to a privilege or protection from discovery, including but not 7 limited to any attorney-client privilege, work product privilege, joint defense 8 privilege, or settlement privilege, shall not be deemed to waive any such 9 privilege or protection. A party or non-party may request the return or 10 destruction of such information, which request shall identify the information 11 and the basis for requesting its return. If a receiving party receives information 12 that the receiving party believes may be subject to a claim of privilege or 13 protection from discovery, the receiving party shall promptly identify the 14 information to the Producing Party. b. 15 When a Producing Party identifies such information as privileged 16 or protected, a receiving party: 1) shall not use, and shall immediately cease any 17 prior use of, such information; 2) shall take reasonable steps to retrieve the 18 information from others to which the receiving party disclosed the information; 19 3) shall within five (5) business days of the Producing Party's request: a) return 20 the information and all copies thereof to the Producing Party; or b) destroy and 21 confirm to the Producing Party in writing that the information and all copies 22 thereof have been destroyed. No one shall use the fact or circumstances of 23 production of the information in this action to argue that any privilege or 24 protection has been waived. Within fourteen (14) days after a Producing Party 25 or receiving party identifies the information, and not thereafter, the receiving 26 party may file a motion to compel the production of the information on the 27 basis that: (a) the information was never privileged or protected from 28 disclosure; or (b) any applicable privilege or immunity has been waived by Protective Order 21 Case No. 2:17-cv-05653-AB-PLA 1 some act other than the production of the information in this action. 2 c. The Producing Party and the receiving party shall meet and confer 3 in accordance with applicable law or Court rules regarding any such motion to 4 compel. Notwithstanding this provision, no party shall be required to return or 5 destroy any information that may exist on any disaster recovery backup system. No Limitations on Party’s Own Protected Materials 6 7 25. Nothing in this Order shall restrict any party to this lawsuit or its 8 attorneys from disclosing or using, in any manner and for any purpose, its own 9 Protected Materials. Other Proceedings 10 11 26. By entering this Order and limiting the disclosure of information in this 12 case, the Court does not intend to preclude another court from finding that information 13 may be relevant and subject to disclosure in another case. Any person or party subject 14 to this Order who becomes subject to a motion to disclose another party’s information 15 designated as confidential pursuant to this Order shall promptly notify that party of the 16 motion so that the party may have an opportunity to appear and be heard on whether 17 that information should be disclosed. Unauthorized Access 18 19 27. Counsel for the Receiving Party shall promptly notify the Producing 20 Party upon becoming aware of any loss, theft and/or unauthorized copying or 21 disclosure of Protected Material, and shall take all steps reasonably necessary and 22 available to retrieve such Protected Material and prevent any further unauthorized 23 access or dissemination. Disposition of Protected Materials 24 25 28. Unless otherwise ordered or agreed, within ninety (90) days after the 26 settlement or final termination of this action, each Receiving Party shall return or 27 destroy all Protected Material, including all notes, abstracts, compilations, summaries 28 or any other form of reproducing or capturing of any Protected Material. Outside Protective Order 22 Case No. 2:17-cv-05653-AB-PLA 1 counsel for each party shall remind any experts, consultants and others as appropriate 2 of their obligation to destroy or return Protected Materials. The Receiving Party shall 3 submit a written certification by the ninety (90) day deadline confirming that all 4 Protected Material has been destroyed (or handled as otherwise ordered or agreed) and 5 which affirms that the Receiving Party has not retained any paper or electronic copies. 6 29. Notwithstanding this provision, outside counsel of record are entitled to 7 retain an archival copy of all pleadings, motion papers, briefs, exhibits, transcripts, 8 written discovery, expert reports, legal memoranda, attorney work product and 9 correspondence, even if such materials contain or reflect Protected Material. Any such 10 archival copies remain subject to the terms of this Protective Order. Survival of Order 11 12 13 30. The terms of this Protective Order shall survive and remain in effect after the termination of the above-captioned matter. Binding Effect 14 15 31. This Order shall be binding upon the parties and their attorneys, 16 successors, executors, personal representatives, administrators, heirs, legal 17 representatives, assigns, subsidiaries, divisions, employees, agents, independent 18 contractors, or other persons or organizations over which they have control. Effective as a Stipulation 19 20 32. This Protective Order shall become effective as a stipulation between the 21 parties immediately upon the filing of the motion to enter protective order, 22 notwithstanding the pendency of approval by the Court, and the parties shall treat any 23 Protected Materials produced before Court approval as provided herein. 24 Dated: April 12, 2018 25 UNITED STATES MAGISTRATE JUDGE 26 Hon. Paul L. Abrams 27 28 Protective Order 23 Case No. 2:17-cv-05653-AB-PLA 1 2 3 4 5 MILES J. FELDMAN (Bar No. 173383) mfeldman@raineslaw.com LAITH D. MOSELY (Bar No. 250832) lmosely@raineslaw.com RAINES FELDMAN LLP 1800 Avenue of the Stars, 12th Floor Los Angeles, California 90067 Telephone: +1 310 440 4100 Facsimile: +1 310 691 1367 10 DAVID J. LENDER (pro hac vice) david.lender@weil.com ANISH DESAI (pro hac vice) anish.desai@weil.com WEIL, GOTSHAL & MANGES LLP 767 Fifth Avenue New York, NY 10153-0119 Telephone: +1 212 310 8000 Facsimile: +1 212 310 8007 11 Attorneys for Plaintiff and Counter-Defendants 12 17 Morgan Chu (Bar No. 70446) mchu@irell.com Gary N. Frischling (Bar No. 130583) gfrischling@irell.com Amy E. Proctor (Bar No. 283845) aproctor@irell.com IRELL & MANELLA LLP 1800 Avenue of the Stars, Suite 900 Los Angeles, California 90067-4276 Telephone: (310) 277-1010 Facsimile: (310) 203-7199 18 Attorneys for Defendants and Counterclaimants 6 7 8 9 13 14 15 16 19 UNITED STATES DISTRICT COURT 20 CENTRAL DISTRICT OF CALIFORNIA 21 WESTERN DIVISION AT LOS ANGELES 22 23 General Electric Co., Plaintiff and Counter-Defendant, 24 25 26 Case No. 2:17-cv-05653-AB-PLA vs. Vestas Wind Systems A/S, et. al, 27 EXHIBIT A TO THE PROTECTIVE ORDER: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY THE PROTECTIVE ORDER Defendants and Counterclaimants. 28 Protective Order 1 Case No. 2:17-cv-05653-AB-PLA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 I, [print or type full name], have been provided a copy of and read the Protective Order in the above-captioned case and agree to be bound by its terms. I understand that I will be receiving nonpublic, confidential materials and information protected pursuant to the terms of this Protective Order. I agree that I will not use or disclose any such Protected Material except in strict compliance with the provision of this Order, and will take all reasonable precautions to prevent any unauthorized use or disclosure of any material in my possession or control. At the final conclusion of the case, I will return or destroy, as directed, any Protected Materials received and any notes or other documents reflecting such materials. I hereby submit to the jurisdiction of this Court for the purposes of enforcement of the Protective Order in this case and waive any objections to jurisdiction or venue. I understand that failure to comply with this Order could result in sanctions or other consequences. I make the above statements under penalty of perjury. Signature : Printed Name: Company Name/Address/Phone: 21 22 23 Dated: 24 25 26 27 28 Protective Order 2 Case No. 2:17-cv-05653-AB-PLA

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?