MicroPairing Technologies LLC v. American Honda Motor Co., Inc.

Filing 75

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott re Stipulation for Protective Order 74 . See Order for details. (es)

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Ryan E. Hatch (SBN 235577)
[e-mail]
HATCH LAW, PC
13323 Washington Blvd., Suite 100
Los Angeles, CA 90066
Tel: [phone]
Fax: [phone]

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(additional counsel listed on next page)

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Attorneys for Plaintiff
MICROPAIRING TECHNOLOGIES LLC

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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MICROPAIRING TECHNOLOGIES
LLC,
Plaintiff,
v.
AMERICAN HONDA MOTOR CO.,
INC.,
Defendant.

Case No. 2:21−cv−04034−JVS(KESx)
STIPULATED PROTECTIVE
ORDER
Courtroom: 10C
Judge: Hon. James V. Selna

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STIPULATED PROTECTIVE ORDER

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Edward R. Nelson III (TX SBN 00797142)
[e-mail]
admitted pro hac vice
Ryan P. Griffin (TX SBN 24053687)
[e-mail]
admitted pro hac vice
Brian P. Herrmann (TX SBN 24083174)
[e-mail]
admitted pro hac vice
NELSON BUMGARDNER CONROY PC
3131 West Seventh Street
Suite 300
Fort Worth, TX 76107
Telephone: [phone]
Timothy E. Grochocinski (IL SBN 6295055)
[e-mail]
admitted pro hac vice
C. Austin Ginnings (NY Bar No. 4986691)
[e-mail]
admitted pro hac vice
NELSON BUMGARDNER CONROY PC
15020 S. Ravinia Avenue, Suite 29
Orland Park, Illinois 60462
Telephone: [phone]
Attorneys for Plaintiff
MICROPAIRING TECHNOLOGIES LLC

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ii

STIPULATED PROTECTIVE ORDER

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1.

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PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production

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

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

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may be warranted. Accordingly, Plaintiff MicroPairing Technologies LLC and

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Defendant American Honda Motor Co., (collectively referred to as the “Parties” and

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individually referred to as a “Party”) hereby stipulate to and petition the Court to enter

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the following Stipulated Protective Order. The Parties acknowledge that this Order

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does not confer blanket protections on all disclosures or responses to discovery and

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

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

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legal principles. The Parties further acknowledge, as set forth in Section 14.3, below,

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that this Stipulated Protective Order does not entitle them to file confidential

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information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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

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the Court to file material under seal.

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2.

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DEFINITIONS
2.1

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

of information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of

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

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under Federal Rule of Civil Procedure 26(c).

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2.3

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

Counsel (as well as their support staff).
2.4

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

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items that it produces in disclosures or in responses to discovery as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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STIPULATED PROTECTIVE ORDER

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ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”.
2.5

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

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

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

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generated in disclosures or responses to discovery in this matter.

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2.6

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

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

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

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

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anticipated to become an employee of a Party or of a Party’s competitor.
2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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

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disclosure of which to another Party or Non-Party would create a substantial risk of

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

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2.8

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:

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extremely sensitive “Confidential Information or Items” representing computer code

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

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or schematics that define or disclose the algorithms or structure of software or

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

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

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For avoidance of doubt, documents that do not specifically define or disclose the

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algorithms or structure of software or hardware designs shall not be designated as

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“HIGHLY CONFIDENTIAL – SOURCE CODE.”

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2.9

House Counsel: attorneys and legal and IP personnel who are employees

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of a Party or a corporate affiliate of a Party, and who have responsibility for managing

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this action. House Counsel does not include Outside Counsel of Record or any other

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outside counsel.

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2.10 Non-Party: any natural person, partnership, corporation, association, or
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other legal entity not named as a Party to this action.

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

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

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

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has appeared on behalf of that Party.

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

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

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support staffs).

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2.13 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.14 Professional Vendors: persons or entities that provide independent

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litigation support services (e.g., photocopying, videotaping, translating, database

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services, preparing exhibits or demonstrations, and organizing, storing, or retrieving

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data in any form or medium, and professional jury or trial consultants) and their

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employees and subcontractors, who (1) have been retained by a Party or its counsel to

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provide litigation support services with respect to this action, (2) are (including any

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employees and subcontractors) not a past or current employee of a Party or of a

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Party’s competitor, and (3) at the time of retention, are not anticipated to become an

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

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2.15 Protected Material: any Disclosure or Discovery Material that is

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

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ATTORNEYS’ EYES ONLY.” or as “HIGHLY CONFIDENTIAL – SOURCE

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CODE.”

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2.16 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

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

Protected Material (as defined above), but also (1) any information copied or extracted
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from Protected Material; (2) all copies, excerpts, summaries, or compilations of

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

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or their Counsel that might reveal Protected Material. However, the protections

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conferred by this Stipulation and Order do not cover the following information: (a)

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any information that is in the public domain at the time of disclosure to a Receiving

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

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a result of publication not involving a violation of this Order, including becoming part

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of the public record through trial or otherwise; and (b) any information known to the

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

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disclosure from a source who obtained the information lawfully and under no

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obligation of confidentiality to the Designating Party. Any use of Protected Material at

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trial shall be governed by a separate agreement or order.

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4.

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

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

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otherwise in writing or a court order otherwise directs. Final disposition shall be

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deemed to be the later of (1) dismissal of all claims and defenses in this action, with or

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without prejudice; and (2) final judgment herein after the completion and exhaustion

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of all appeals, rehearings, remands, trials, or reviews of this action, including the time

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limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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

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

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

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Party must designate for protection only those parts of material, documents, items, or

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oral or written communications that qualify – so that other portions of the material,
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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.

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Mass, indiscriminate, or routinized designations are prohibited. Designations

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that are shown to be clearly unjustified or that have been made for an improper

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purpose (e.g., to unnecessarily encumber or retard the case development process or to

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impose unnecessary expenses and burdens on other parties) expose the Designating

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Party to sanctions.

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

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

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

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other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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

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stipulated or ordered, Disclosure or Discovery Material that qualifies for protection

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under this Order must be clearly so designated before the material is disclosed or

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produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic

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documents, but excluding transcripts of depositions or other pretrial or trial

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proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or

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

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CONFIDENTIAL – SOURCE CODE” to each page that contains protected material.

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If only a portion or portions of the material on a page qualifies for protection, the

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Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins) and must specify, for each portion, the level of

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protection being asserted.

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

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

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

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

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

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inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

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– SOURCE CODE) to each page that contains Protected Material. If only a portion or

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

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

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

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

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

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

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

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

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

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

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twenty-one (21) days to identify the specific portions of the testimony as to which

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

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

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twenty-one (21) days shall be covered by the provisions of this Stipulated Protective

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Order. Alternatively, a Designating Party may specify, at the deposition or up to 21

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days afterwards if that period is properly invoked, that the entire transcript shall be

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

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

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Parties shall give the other Parties reasonable notice if they reasonably expect a
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STIPULATED PROTECTIVE ORDER

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

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parties can ensure that only authorized individuals who have signed the

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

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

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affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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

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Transcripts containing Protected Material shall have an obvious legend on the

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

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

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

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

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requirements. Any transcript that is prepared before the expiration of a twenty-one

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(21) day period for designation shall be treated during that period as if it had been

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its

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entirety unless otherwise agreed. After the expiration of that period, the transcript

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shall be treated only as actually designated.

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

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for any other tangible items, that the Producing Party affix in a prominent place on the

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

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

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ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. If only a portion or

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

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

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protection being asserted.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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Upon timely correction of a designation, the Receiving Party must make reasonable
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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party may challenge a designation of

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s

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confidentiality designation is necessary to avoid foreseeable, substantial unfairness,

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

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

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to mount a challenge promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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

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

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

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

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Protective Order. The Parties shall attempt to resolve each challenge in good faith and

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must begin the process by conferring directly (in voice-to-voice dialogue; other forms

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of communication are not sufficient) within fourteen (14) days of the date of service

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

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the confidentiality designation was not proper and must give the Designating Party an

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opportunity to review the designated material, to reconsider the circumstances, and, if

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no change in designation is offered, to explain the basis for the chosen designation. A

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Challenging Party may proceed to the next stage of the challenge process only if it has

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engaged in this meet and confer process first or establishes that the Designating Party

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is unwilling to participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Challenging Party shall file and serve a motion to re-designate

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or de-designate under Civil Local Rule 7 (and in compliance with Civil Local Rule

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79-5, if applicable) within twenty-one (21) days of the initial notice of challenge or
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within fourteen (14) days of the parties agreeing that the meet and confer process will

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not resolve their dispute, whichever is later. Each such motion must be accompanied

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by a competent declaration affirming that the movant has complied with the meet and

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confer requirements imposed in the preceding paragraph.

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

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Designating Party. Frivolous challenges and those made for an improper purpose (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose

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the Challenging Party to sanctions. All parties shall continue to afford the material in

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question the level of protection to which it is entitled under the Producing Party’s

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designation until the court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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

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

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

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must comply with the provisions of Section 15 below (FINAL DISPOSITION).

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

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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated “CONFIDENTIAL”

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only to:

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

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including all partners, members, and associate attorneys of such counsel’s law firms

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who are assisting in the conduct of the Action;

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(b) employees of said Outside Counsel of Record assigned to and
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reasonably necessary to assist such counsel in the litigation of this Action when

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operating under the supervision of such partners or associate attorneys;

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(c) House Counsel of the Receiving Party to whom disclosure is
reasonably necessary for this litigation;

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(d) Experts (as defined in this Order) of the Receiving Party to whom

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disclosure is reasonably necessary for this litigation and who have signed the

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

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procedures set forth in Section 7.5(a)(2) below have been followed;

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(e) the Court and its personnel;

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(f) stenographic reporters, videographers and/or their staff, and

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Professional Vendors to whom disclosure is reasonably necessary for this litigation

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

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A);

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(g) any person (i) who created, authored, received or reviewed such

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Protected Material; (ii) is or was a custodian of the Protected Material; (iii) is

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identified on such Protected Material; or (iv) is or was an employee of the producing

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Party and is reasonably believed to have knowledge of the matters in the Protected

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Material; and

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(h) any other person as may be designated by written agreement by the
Producing Party or by order of the Court.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in

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writing by the Designating Party, a Receiving Party may disclose any information or

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item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only

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to individuals listed in Sections 7.2(a-b) and (d-h).

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7.4

Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE”

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Information or Items. Unless otherwise ordered by the Court or permitted in writing

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by the Designating Party, a Receiving Party may disclose any information or item
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designated “HIGHLY CONFIDENTIAL – SOURCE CODE” only to individuals

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listed in Sections 7.2(a-b), (e), (h) and:
(a) up to three (3) Experts1 (as defined in this Order) of the Receiving

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

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to

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whom the procedures set forth in Section 7.5(a)(2), below, and specifically identified

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as eligible to access “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

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Items, have been followed; and

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(b) stenographic reporters, videographers and their respective staff, and

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are transcribing or videotaping a deposition wherein “HIGHLY CONFIDENTIAL –

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SOURCE CODE” Information or Items are being discussed, provided that such

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reporters and videographers shall not retain or be given copies of any portions of the

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source code, which if used during a deposition, will not be attached as an exhibit to

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the transcript but instead shall be identified only by its production numbers; and

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7.5

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

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– SOURCE CODE” Information or Items to Experts.

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

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the Designating Party, a Party that seeks to disclose to Designated House Counsel any

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information or item that has been designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” pursuant to Section 7.3 first must make a written

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

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

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Designated House Counsel’s current and reasonably foreseeable future primary job

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duties and responsibilities in sufficient detail to determine if House Counsel is

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

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For the purposes of this paragraph, an Expert is defined to include the expert’s direct reports and other support
personnel, such that the disclosure to an Expert who employs others within his or her firm to help in his or her analysis
shall count as a disclosure to a single expert.

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

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

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Order) any information or item that has been designated “HIGHLY CONFIDENTIAL

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

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CODE” pursuant to Sections 7.3 and/or 7.4 first must make a written request to the

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Designating Party2 that (1) identifies the general categories of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

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– SOURCE CODE” information that the Receiving Party seeks permission to disclose

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to the Expert, (2) sets forth the full name of the Expert and the city and state of his or

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her primary residence, (3) attaches a copy of the Expert’s current curriculum vitae, (4)

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identifies the Expert’s current employer(s), (5) identifies each person or entity from

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whom the Expert has received compensation or funding for work in his or her areas of

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expertise or to whom the expert has provided professional services, including in

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connection with a litigation, at any time during the preceding five years,3 and (6)

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

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

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

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five years.4

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(b) A Party that makes a request and provides the information specified
in the preceding respective paragraphs may disclose the subject Protected Material to

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2

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For a Designating Party that is a Non-Party, experts previously disclosed and approved prior to the Non-Party’s
production of any information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” need not be disclosed to said Non-Party unless such NonParty requests such information prior to the production of any Protected Material. Moreover, unless otherwise requested
by the Non-Party, subsequently disclosed experts need not be disclosed to the Non-Party before that Non-Party’s
Protected Material may be disclosed thereto.
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If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert
should provide whatever information the Expert believes can be disclosed without violating any confidentiality
agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating
Party regarding any such engagement.

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It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to the
termination of the litigation that could foreseeably result in an improper use of the Designating Party’s “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information.

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the identified Designated House Counsel or Expert unless, within fourteen (14) days

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

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

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

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

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the matter by agreement within seven (7) days of the written objection. If no

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agreement is reached, the Party seeking to make the disclosure to Designated House

8

Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in

9

compliance with Civil Local Rule 79-5, if applicable) seeking permission from the

10

court to do so. Any such motion must describe the circumstances with specificity, set

11

forth in detail the reasons why the disclosure to Designated House Counsel or the

12

Expert is reasonably necessary, assess the risk of harm that the disclosure would

13

entail, and suggest any additional means that could be used to reduce that risk. In

14

addition, any such motion must be accompanied by a competent declaration

15

describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and

16

the content of the meet and confer discussions) and setting forth the reasons advanced

17

by the Designating Party for its refusal to approve the disclosure.

18

(d) In any such proceeding, the Party opposing disclosure to Designated

19

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

20

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

21

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

22

Expert.

23

8.

24

PROSECUTION BAR
Absent written consent from the Producing Party, any individual who accesses

25

or otherwise learns of to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

26

ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be

27

involved in the prosecution of patents or patent applications relating to the subject

28

matter of the litigation or the subject matter of the Protected Material designated by
13

STIPULATED PROTECTIVE ORDER

1

the Producing Party, including without limitation the patents asserted in this action

2

and any patent or application claiming priority to or otherwise related to the patents

3

asserted in this action, before any foreign or domestic agency, including the United

4

States Patent and Trademark Office (“the Patent Office”). For purposes of this

5

paragraph, “prosecution” includes directly or indirectly drafting, amending, advising,

6

or otherwise affecting the scope of patent claims. To avoid any doubt, “prosecution”

7

as used in this paragraph does not include representing a Party challenging a patent

8

before a domestic or foreign agency (including, but not limited to, a reissue protest, ex

9

parte reexamination, inter partes review, or post grant review). Moreover, and

10

notwithstanding the foregoing, nothing in this paragraph shall prohibit a person who is

11

otherwise subject to this provision from participating in a PTO proceeding (e.g., inter

12

partes review, post grant review) of the patents asserted in this action if that person

13

does not participate—directly or indirectly—in the amendment of any claim(s). This

14

Prosecution Bar shall begin when “HIGHLY CONFIDENTIAL – ATTORNEYS’

15

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information is

16

first accessed or otherwise learned by the affected individual and shall end two (2)

17

years after final termination of this action.

18

9.

19

SOURCE CODE
(a)

To the extent production of computer source code and/or live data

20

(i.e., data as it exists residing in a database or databases) (“Source Code Material”)

21

becomes necessary in this case, a Producing Party may designate source code as

22

“HIGHLY CONFIDENTIAL - SOURCE CODE” if it comprises or includes

23

confidential, proprietary or trade secret source code or algorithms. For avoidance of

24

doubt, documents that do not specifically define or disclose the algorithms or structure

25

of software or hardware designs shall not be designated as “HIGHLY

26

CONFIDENTIAL – SOURCE CODE.”

27
28

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL –

SOURCE CODE” shall be subject to all of the protections afforded to “HIGHLY
14

STIPULATED PROTECTIVE ORDER

1

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information including the

2

Prosecution Bar set forth in Section 8, and may be disclosed only as set forth in

3

Sections 7.3 and 7.4.

4

(c)

Any Source Code Material, including unredacted versions of

5

documentation containing “HIGHLY CONFIDENTIAL – SOURCE CODE”

6

information as described in Section 9(a), produced in discovery shall only be made

7

available for inspection in a computer searchable format allowing it to be reasonably

8

reviewed and searched, during normal business hours or at other mutually agreeable

9

times, at (1) an office of the Producing Party or the Producing Party’s primary Outside

10

Counsel of Record or (2) another mutually agreed upon location. Any location under

11

(1) or (2) shall be within the United States. The source code shall only be made

12

available for inspection on secured “stand-alone” computer(s) in a secured room

13

without Internet access or network access to other computers, and the Receiving Party

14

shall not copy, remove, or otherwise transfer any portion of the source code onto any

15

recordable media or recordable device.

16

(d) The Receiving Party shall provide at least five (5) business days’

17

notice prior to a proposed inspection; however, a request to shorten this notice period

18

shall not be withheld unreasonably. The Receiving Party shall make reasonable efforts

19

to restrict its requests for such access to the stand-alone computer(s) to normal

20

business hours, which for purposes of this paragraph shall be 8:00 a.m. through 6:00

21

p.m., local time, on business days (i.e., weekdays that are not Federal holidays) or any

22

other days and times mutually agreed upon by the Producing and Receiving Parties.

23

However, upon reasonable notice from the Receiving Party, the Producing Party shall

24

make reasonable efforts to accommodate the Receiving Party’s request for access to

25

the stand-alone computer(s) outside of normal business hours.

26

(e) A list of names of persons who will view the source code will be

27

provided to the Producing Party in conjunction with any written (including email)

28

notice requesting inspection.
15

STIPULATED PROTECTIVE ORDER

1

(f) The Producing Party shall provide the Receiving Party with

2

information explaining how to start, log on to, and operate the stand-alone

3

computer(s) in order to access the produced Source Code Material on the stand-alone

4

computer(s).

5

(g) The Producing Party will produce Source Code Material in computer

6

searchable format on the stand-alone computer(s) as described above. The stand-

7

alone computer shall be reasonably configured to permit the Receiving Party to review

8

the Source Code. The stand-alone computer shall have tools installed sufficient to

9

review and search the Source Code Material as requested by the Receiving Party and

10

approved by the Producing Party (which approval shall not be withheld unreasonably).

11

Absent agreement of the Producing Party or order of the Court, the Receiving Party

12

shall not use any compilers, interpreters, or simulators in connection with the

13

Producing Party’s Source Code Material. In the event the Receiving Party requests

14

commercially available software tools for viewing and searching Source Code

15

Material to be installed on the stand alone computer(s), the Receiving Party must

16

identify those tools and provide the Producing Party with licensed copies of the

17

software tool(s), at the Receiving Party’s expense. The Producing Party and

18

Receiving Party shall promptly meet and confer in good faith to resolve any disputes

19

regarding the configuration of the standalone computer(s).

20

(h)

The Receiving Party’s Outside Counsel of Record and/or Experts

21

shall be entitled to take notes relating to the Source Code Material, but may not copy

22

any portion of the Source Code Material into the notes, excepting variable, object,

23

method, class, or file names, which may be copied for identification purposes only,

24

and may not be used to replicate the Source Code Material in the notes. Notes may

25

not be taken on the stand alone computer itself. Under no circumstance is any portion

26

of the Source Code Material to be recorded in notes as a way to circumvent the

27

protections of this Protective Order. If any individual inspecting Source Code seeks

28

to take notes, all such notes will be taken on bound (spiral or other type of
16

STIPULATED PROTECTIVE ORDER

1

permanently bound) notebooks. No loose paper or other paper that can be used in a

2

printer will be permitted. All such notes shall be marked “HIGHLY

3

CONFIDENTIAL SOURCE CODE.”

4

(i) The Producing Party may visually monitor the activities of the

5

Receiving Party’s representatives during any source code review, but only to the

6

extent reasonably necessary to ensure compliance with the provisions of this Order. In

7

so doing, the Producing Party will not monitor, listen in on, or otherwise inhibit the

8

Receiving Party’s privileged communications or note-taking, and the Producing

9

Party’s supervision will not, by itself, be deemed to cause any waiver or other loss of

10
11

any privilege covering such notes or communications.
(j) The Receiving Party may request paper copies of limited portions of

12

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

13

pleadings, expert reports, or other papers, or for deposition or trial, but shall not

14

request paper copies for the purposes of reviewing the source code other than

15

electronically as set forth in Section 9(g). The Producing Party shall provide all such

16

source code in paper form including bates numbers and the label “HIGHLY

17

CONFIDENTIAL – SOURCE CODE.” The Producing Party may challenge the

18

amount of source code requested in hard copy form pursuant to the dispute resolution

19

procedure and timeframes set forth in Section 6 whereby the Producing Party is the

20

“Challenging Party” and the Receiving Party is the “Designating Party” for purposes

21

of dispute resolution.

22

(k)

Except as provided in this paragraph, the Receiving Party may not

23

create electronic copies, versions, images, or any other electronic format, of the

24

Source Code Material from the paper copy for use on a computer (e.g., may not scan

25

the source code to a PDF, or photograph the code). The Receiving Party may include

26

excerpts of Source Code Material in an exhibit to a pleading or other court filing,

27

expert report, or deposition transcript (each a “Source Code Document”), provided

28

that the Source Code Documents are appropriately marked under this Order, restricted
17

STIPULATED PROTECTIVE ORDER

1

to those who are entitled to have access to them as specified herein, and, if filed with

2

the Court, filed under seal in accordance with the Court’s rules, procedures and orders.

3

The communication and/or disclosure of electronic files containing any portion of

4

source code shall at all times be limited to individuals who are authorized to see

5

source code under the provisions of this Protective Order. Additionally, all electronic

6

copies must be labeled “HIGHLY CONFIDENTIAL – SOURCE CODE”.

7

(l) To the extent portions of source code are quoted in a SOURCE CODE

8

DOCUMENT, either (1) the entire document will be stamped and treated as HIGHLY

9

CONFIDENTIAL – SOURCE CODE or (2) those pages containing quoted Source

10

Code will be separately bound, and stamped and treated as HIGHLY

11

CONFIDENTIAL – SOURCE CODE.

12

(m) The Receiving Party shall maintain a record of any individual who

13

has inspected any portion of the Source Code Material in electronic or paper form.

14

The Receiving Party shall maintain all paper copies of any printed portions of the

15

source code in a secured, locked area. The Receiving Party shall not create any

16

electronic or other images of the paper copies and shall not convert any of the

17

information contained in the paper copies into any electronic format. The Receiving

18

Party shall only make additional paper copies if such additional copies are (1)

19

necessary to prepare court filings, pleadings, or other papers (including a testifying

20

expert’s expert report), (2) necessary for deposition, or (3) otherwise necessary for the

21

preparation of its case. Any paper copies used during a deposition shall be retrieved

22

by the Producing Party at the end of each day and must not be given to or left with a

23

court reporter or any other unauthorized individual.

24

10.

25
26
27
28

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other

litigation that compels disclosure of any information or items designated in this action
as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
18

STIPULATED PROTECTIVE ORDER

1

ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must:

2
3

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

4

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

5

to issue in the other litigation that some or all of the material covered by the subpoena

6

or order is subject to this Protective Order. Such notification shall include a copy of

7

this Stipulated Protective Order; and

8
9

(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely5 seeks a protective order, the Party served

10
11

with the subpoena or court order shall not produce any information designated in this

12

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

13

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” before a

14

determination by the Court from which the subpoena or order issued, unless the Party

15

has obtained the Designating Party’s permission. The Designating Party shall bear the

16

burden and expense of seeking protection in that Court of its confidential material –

17

and nothing in these provisions should be construed as authorizing or encouraging a

18

Receiving Party in this action to disobey a lawful directive from another Court.

19

11.

20
21
22
23
24
25
26
27
28

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

The terms of this Order are applicable to information produced by

a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” “HIGHLY CONFIDENTIAL –
SOURCE CODE”. Such information produced by Non-Parties in connection with this
litigation is protected by the remedies and relief provided by this Order. Nothing in
these provisions should be construed as prohibiting a Non-Party from seeking
additional protections.

5

The Designating Party shall have at least fourteen (14) days from the service of the notification pursuant to Section
10(a) to seek a protective order.

19

STIPULATED PROTECTIVE ORDER

1

(b)

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

2

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

3

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

4

confidential information, then the Party shall:

5

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

6

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

7

with a Non-Party;

8
9
10

2. promptly provide the Non-Party with a copy of the Stipulated
Protective Order in this litigation, the relevant discovery request(s), and a reasonably
specific description of the information requested; and

11
12

3. make the information requested available for inspection by the
Non-Party.

13

(c)

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

14

Court within fourteen (14) days of receiving the notice and accompanying

15

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

16

information responsive to the discovery request. If the Non-Party timely seeks a

17

protective order, the Receiving Party shall not produce any information in its

18

possession or control that is subject to the confidentiality agreement with the Non-

19

Party before a determination by the Court. Absent a Court order to the contrary, the

20

Non-Party shall bear the burden and expense of seeking protection in this Court of its

21

Protected Material.

22

12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

23

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

24

disclosed Protected Material to any person or in any circumstance not authorized

25

under this Stipulated Protective Order, the Receiving Party must immediately (a)

26

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

27

efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the

28

person or persons to whom unauthorized disclosures were made of all the terms of this
20

STIPULATED PROTECTIVE ORDER

1

Order, and (d) request such person or persons to execute the “Acknowledgment and

2

Agreement to Be Bound” that is attached hereto as Exhibit A.

3

13.

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

inadvertently produced material is subject to a claim of privilege or other protection,
the obligations of the Receiving Parties are those set forth in Federal Rule of Civil
Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure
may be established in an e-discovery order that provides for production without prior
privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the
parties reach an agreement on the effect of disclosure of a communication or
information covered by the attorney-client privilege or work product protection, the
parties may incorporate their agreement in the stipulated protective order submitted to
the Court.
14.

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

person to seek its modification by the Court in the future.
14.2 Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to
disclosing or producing any information or item on any ground not addressed in this
Stipulated Protective Order. Similarly, no Party waives any right to object on any
ground to use in evidence of any of the material covered by this Protective Order.
14.3 Filing Protected Material. Without written permission from the
Designating Party or a Court order secured after appropriate notice to all interested
persons, a Party may not file in the public record in this action any Protected Material.
A Party that seeks to file under seal any Protected Material must comply with Civil
Local Rule 79-5. A Party who seeks to introduce Protected Material at a hearing,
pretrial, or other proceeding of this Action shall advise the Court at the time of
21

STIPULATED PROTECTIVE ORDER

1

introduction that the information sought to be introduced is protected. If the

2

Designating Party requests the protection to be continued, the Court will review the

3

information to determine if the information is entitled to continued protection. Prior to

4

disclosure of Protected Material at a hearing, the Producing Party may seek further

5

protections against public disclosure form the Court.

6

14.4 Use of Protected Material at Trial. The provisions of this Order do not

7

apply to any trial proceedings in this Action. The Parties will separately request the

8

Court to enter an Order governing the handling of Protected Materials at trial.

9

15.

10

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

11

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

12

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

13

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

14

reproducing or capturing any of the Protected Material. Whether the Protected

15

Material is returned or destroyed, the Receiving Party must submit a written

16

certification to the Producing Party (and, if not the same person or entity, to the

17

Designating Party) by the 60-day deadline that (1) identifies (by category, where

18

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

19

that the Receiving Party has not retained any copies, abstracts, compilations,

20

summaries or any other format reproducing or capturing any of the Protected Material.

21

Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

22

pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

23

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

24

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

25

Material. Any such archival copies that contain or constitute Protected Material

26

remain subject to this Protective Order as set forth in Section 4 (DURATION).

27
28
22

STIPULATED PROTECTIVE ORDER

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

DATED: April 12, 2022

By: /s/ Edward R. Nelson III
Edward R. Nelson III (pro hac vice)
[e-mail]
Ryan P. Griffin (pro hac vice)
ryan@ nelbum.com
Brian P. Herrmann (pro hac vice)
brian@ nelbum.com
NELSON BUMGARDNER CONROY PC
3131 West Seventh Street, Suite 300
Fort Worth, Texas 76107
Telephone: [phone]
Timothy E. Grochocinski (pro hac vice)
tim@ nelbum.com
Charles Austin Ginnings (pro hac vice)
austin@ nelbum.com
NELSON BUMGARDNER CONROY PC
15020 S. Ravinia Avenue, Suite 29
Orland Park, Illinois 60462
Telephone: [phone]
Ryan E. Hatch (Bar No. 235577)
[e-mail]
HATCH LAW, PC
13323 Washington Blvd., Suite 302
Los Angeles, California 90066
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
MicroPairing Technologies LLC

24
25
26
27
28
23

STIPULATED PROTECTIVE ORDER

1

DATED: April 12, 2022

2
3
4
5
6

By:

/s/ Theodore W. Chandler
Theodore W. Chandler (Bar No. 219456)
[e-mail]
BAKER BOTTS L.L.P.
1801 Century Park East, Suite 2400
Los Angeles, California 90067
Telephone: [phone]
Facsimile: [phone]
Robert L. Maier (pro hac vice)
[e-mail]
Neil P. Sirota (pro hac vice)
[e-mail]
Margaret M. Welsh (pro hac vice)
[e-mail]
BAKER BOTTS L.L.P.
30 Rockefeller Plaza
New York, New York 10112
Telephone: [phone]
Facsimile: [phone]

7
8
9
10
11
12
13
14
15

Attorneys for Defendant
American Honda Motor Co., Inc.

16
17
18
19
20
21
22

PURSUANT TO STIPULATION, IT IS SO ORDERED.

23
24

DATED: April 13, 2022

25
26
27

________________________________________
Hon. Karen E. Scott
United States Magistrate Judge

28
24

STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

4

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

5

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

6

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

7

case of Micropairing Technologies LLC v. American Honda Motor Co., Inc., Case

8

No. 2:21−cv−04034−JVS(KESx). I agree to comply with and to be bound by all the

9

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

10

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

11

contempt. I solemnly promise that I will not disclose in any manner any information

12

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

13

in strict compliance with the provisions of this Order.

14

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

15

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

16

this Stipulated Protective Order, even if such enforcement proceedings occur after

17

termination of this action.

18
19

Date: _________________________________

20
21

City and State where sworn and signed: _________________________________

22
23
24
25
26
27

Printed name: ______________________________
[printed name]
Signature: ______________________________
[signature]

28
25

STIPULATED PROTECTIVE ORDER