Rakupuri Inc v. IdeaMax et al

Filing 26

STIPULATED PROTECTIVE ORDER by Magistrate Judge Marc L. Goldman re Stipulation for Protective Order 24 (twdb)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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RAKUPURI, INC. a/k/a RAKUPURI
CO., LTD.

Case No. SACV 11-01428-DOC (MLGx)

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Plaintiff
Counterclaim Defendant,

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v.

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IDEAMAX, EUNCHANG LEE a/k/a
EUGENE LEE, and AEKYUNG LEE

[PROPOSED] STIPULATED
PROTECTIVE ORDER

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Defendants
Counterclaim Plaintiffs.

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The Honorable David O. Carter

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[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve

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production of confidential, proprietary, or private information for which special

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protection from public disclosure and from use for any purpose other than

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prosecuting this litigation may be warranted. Accordingly, the parties hereby

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stipulate to and petition the Court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections

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on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are

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entitled to confidential treatment under the applicable legal principles. The parties

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further acknowledge, as set forth in Section 14.4 below, that this Stipulated

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Protective Order does not entitle them to file confidential information under seal;

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Civil Local Rule 79-5 sets forth the procedures that must be followed and the

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standards that will be applied when a party seeks permission from the court to file

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material under seal.

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2.

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

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(regardless of how it is generated, stored or maintained) or tangible things that

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qualify for protection 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).

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2.4

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Designated House Counsel: House Counsel who seek access to

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this

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matter.
2.5

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Designating Party: a Party or Non-Party that designates

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

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
2.6

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Disclosure or Discovery Material: all items or information,

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regardless of the medium or manner in which it is generated, stored, or maintained

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(including, among other things, testimony, transcripts, and tangible things), that are

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produced or generated in disclosures or responses to discovery in this matter.
2.7

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Expert: a person with specialized knowledge or experience in a

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

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

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current employee of a Party or of a Party’s competitor, and (3) at the time of

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retention, is not anticipated to become an employee of a Party or of a Party’s

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competitor.

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2.8

“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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2.9

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information

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

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computer code and associated comments and revision histories, formulas,

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engineering specifications, or schematics that define or otherwise describe in detail

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the algorithms or structure of software or hardware designs, disclosure of which to

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

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could not be avoided by less restrictive means.

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

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

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outside counsel.

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

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2.12 Outside Counsel of Record: attorneys who are not employees of

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a party to this action but are retained to represent or advise a party to this action

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and have appeared in this action on behalf of that party or are affiliated with a law

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firm which has appeared on behalf of that party.

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

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directors, employees, consultants, retained experts, and Outside Counsel of Record

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(and their support staffs).

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

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2.15 Professional Vendors: persons or entities that provide litigation

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support services (e.g., photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium)

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and their employees and subcontractors.

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2.16 Protected Material: any Disclosure or Discovery Material that is

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designated

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

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CODE.”

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“CONFIDENTIAL,”

“HIGHLY

CONFIDENTIAL

–

2.17 Receiving Party: a Party that receives Disclosure or Discovery

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as

Material from a Producing Party.
3.

SCOPE

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The protections conferred by this Stipulation and Order cover not only

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

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extracted from Protected Material; (2) all copies, excerpts, summaries, or

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compilations of Protected Material; and (3) any testimony, conversations, or

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presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the

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following information: (a) any information that is in the public domain at the time

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

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disclosure to a Receiving Party as a result of publication not involving a violation

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of this Order, including becoming part of the public record through trial or

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

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

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

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

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separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality

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

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agrees otherwise in writing or a court order otherwise directs. Final disposition

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shall be deemed to be the later of (1) dismissal of all claims and defenses in this

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action, with or without prejudice; and (2) final judgment herein after the

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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of

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this action, including the time limits for filing any motions or applications for

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extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL
5.1

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Exercise of Restraint and Care in Designating Material for

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Protection. Each Party or Non-Party that designates information or items for

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protection under this Order must take care to limit any such designation to specific

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material that qualifies under the appropriate standards. To the extent it is practical

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to do so, the Designating Party must designate for protection only those parts of

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material, documents, items, or oral or written communications that qualify – so that

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other portions of the material, documents, items, or communications for which

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protection is not warranted are not swept unjustifiably within the ambit of this

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Order.

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Mass, indiscriminate, or routinized designations are prohibited.

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

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

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

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the Designating Party to sanctions.

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

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that it designated for protection do not qualify for protection at all or do not qualify

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for the level of protection initially asserted, that Designating Party must promptly

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notify all other Parties that it is withdrawing the mistaken designation.

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5.2

Manner and Timing of Designations.

Except as otherwise

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provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as

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

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

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disclosed or produced.

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Designation in conformity with this Order requires:

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(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,”

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

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CONFIDENTIAL – SOURCE CODE” to each page that contains protected

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

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protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins) and must specify, for each

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portion, the level of protection being asserted.

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

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available for inspection need not designate them for protection until after the

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inspecting Party has indicated which material it would like copied and produced.

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During the inspection and before the designation, all of the material made available

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for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or

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portions thereof, qualify for protection under this Order. Then, before producing

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the specified documents, the Producing Party must affix the appropriate legend

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(“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE”) to each page that

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

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

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

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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

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

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the level of protection being asserted. When it is impractical to identify separately

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each portion of testimony that is entitled to protection and it appears that

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substantial portions of the testimony may qualify for protection, the Designating

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Party may invoke on the record (before the deposition, hearing, or other

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proceeding is concluded) a right to have up to 21 days to identify the specific

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portions of the testimony as to which protection is sought and to specify the level

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of protection being asserted.

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appropriately designated for protection within the 21 days shall be covered by the

Only those portions of the testimony that are

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

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may specify, at the deposition or up to 21 days afterwards if that period is properly

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Parties shall give the other parties notice if they reasonably expect a

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

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other 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

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

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– ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious

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legend on the title page that the transcript contains Protected Material, and the title

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page shall be followed by a list of all pages (including line numbers as appropriate)

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that have been designated as Protected Material and the level of protection being

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asserted by the Designating Party. The Designating Party shall inform the court

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reporter of these requirements. Any transcript that is prepared before the expiration

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of a 21-day period for designation shall be treated during that period as if it had

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

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

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transcript shall be treated only as actually designated.

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(c)

for information produced in some form other than documentary

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

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place on the exterior of the container or containers in which the information or

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item is stored the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –

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

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CODE.” If only a portion or portions of the information or item warrant protection,

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the Producing Party, to the extent practicable, shall identify the protected portion(s)

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and specify the level of protection being asserted.
5.3

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Inadvertent Failures to Designate.

If timely corrected, an

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inadvertent failure to designate qualified information or items does not, standing

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alone, waive the Designating Party’s right to secure protection under this Order for

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such material. Upon timely correction of a designation, the Receiving Party must

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make reasonable efforts to assure that the material is treated in accordance with the

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provisions of this Order.

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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

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substantial unfairness, unnecessary economic burdens, or a significant disruption

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or delay of the litigation, a Party does not waive its right to challenge a

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confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer.

The Challenging Party shall initiate the

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

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

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whether a challenge has been made, the written notice must recite that the

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challenge to confidentiality is being made in accordance with this specific

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paragraph of the Protective Order.

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challenge in good faith and must begin the process by conferring directly (in voice

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to voice dialogue; other forms of communication are not sufficient) within 14 days

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of the date of service of notice. In conferring, the Challenging Party must explain

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

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give the Designating Party an opportunity to review the designated material, to

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

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the basis for the chosen designation. A Challenging Party may proceed to the next

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stage of the challenge process only if it has engaged in this meet and confer

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process first or establishes that the Designating Party is unwilling to participate in

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the meet and confer process in a timely manner.

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6.3

The parties shall attempt to resolve each

Judicial Intervention. If the Parties cannot resolve a challenge

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without court intervention, the Designating Party shall file and serve a motion to

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

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days of the parties agreeing that the meet and confer process will not resolve their

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dispute, whichever is earlier.

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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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Designating Party to make such a motion including the required declaration within

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21 days (or 14 days, if applicable) shall automatically waive the confidentiality

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designation for each challenged designation. In addition, the Challenging Party

Each such motion must be accompanied by a

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Failure by the

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may file a motion challenging a confidentiality designation at any time if there is

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good cause for doing so, including a challenge to the designation of a deposition

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transcript or any portions thereof. Any motion brought pursuant to this provision

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must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding

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paragraph.

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The burden of persuasion in any such challenge proceeding shall be

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on the Designating Party. Frivolous challenges and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other

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parties) may expose the Challenging Party to sanctions. Unless the Designating

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Party has waived the confidentiality designation by failing to file a motion to retain

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confidentiality as described above, all parties shall continue to afford the material

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in question the level of protection to which it is entitled under the Producing

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Party’s designation until the Court rules on the challenge.

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7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material

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that is disclosed or produced by another Party or by a Non-Party in connection

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with this case only for prosecuting, defending, or attempting to settle this litigation.

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Such Protected Material may be disclosed only to the categories of persons and

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under the conditions described in this Order.

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terminated, a Receiving Party must comply with the provisions of section 15 below

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(FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving

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When the litigation has been

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

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persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items.

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Unless otherwise ordered by the Court or permitted in writing by the Designating

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Party, a Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a)

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

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation;

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(b)

the officers, directors, and employees (including House

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Counsel) of the Receiving Party to whom disclosure is reasonably necessary for

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this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(c)

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

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

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

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(d)

the Court and its personnel;

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(e)

court reporters and their staff, professional jury or trial

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consultants, and Professional Vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A);

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(f)

during their depositions, witnesses in the action to whom

disclosure is reasonably necessary and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating

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Party or ordered by the Court.

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exhibits to depositions that reveal Protected Material must be separately bound by

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the court reporter and may not be disclosed to anyone except as permitted under

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this Stipulated Protective Order; or
(g)

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Pages of transcribed deposition testimony or

the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information.
7.3

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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information

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

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Designating Party, a Receiving Party may disclose any information or item

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
(a)

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

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as well as employees of said Outside Counsel of Record to whom it is reasonably

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necessary to disclose the information for this litigation;
(b)

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Designated House Counsel of the Receiving Party (1) who has

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no involvement in competitive decision-making, (2) to whom disclosure is

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reasonably necessary for this litigation, (3) who has signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), and (4) as to whom the procedures set

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forth in paragraph 7.4(a)(1), below, have been followed;1

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This Order contemplates that Designated House Counsel shall not have access to

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(c)

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

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reasonably necessary for this litigation, (2) who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set

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forth in paragraph 7.4(a)(2), below, have been followed;

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(d)

the Court and its personnel;

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(e)

court reporters and their staff, professional jury or trial

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consultants, and Professional Vendors to whom disclosure is reasonably necessary

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for this litigation and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A); and

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(f)

the author or recipient of a document containing the

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information or a custodian or other person who otherwise possessed or knew the

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information.

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7.4

Procedures for Approving or Objecting to Disclosure of

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

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CONFIDENTIAL – SOURCE CODE” Information or Items to Designated House

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Counsel or Experts.

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

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by the Designating Party, a Party that seeks to disclose to Designated House

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Counsel any information or item that has been designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b)

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first must make a written request to the Designating Party that (1) sets forth the full

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any information or items designated “HIGHLY CONFIDENTIAL – SOURCE
CODE.”

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name of the Designated House Counsel and the city and state of his or her

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residence and (2) describes the Designated House Counsel’s current and

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reasonably foreseeable future primary job duties and responsibilities in sufficient

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detail to determine if House Counsel is involved, or may become involved, in any

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competitive decision-making.

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

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

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

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CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“HIGHLY

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CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c) first must

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make a written request to the Designating Party that (1) identifies the general

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

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“HIGHLY CONFIDENTIAL – SOURCE CODE” information that the Receiving

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

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

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

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identifies each person or entity from whom the Expert has received compensation

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or funding for work in his or her areas of expertise or to whom the expert has

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provided professional services, including in connection with a litigation, at any

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time during the preceding five years,2 and (6) identifies (by name and number of

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2

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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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the case, filing date, and location of court) any litigation in connection with which

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the Expert has offered expert testimony, including through a declaration, report, or

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testimony at a deposition or trial, during the preceding five years.

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(b)

A Party that makes a request and provides the information

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specified in the preceding respective paragraphs may disclose the subject Protected

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Material to the identified Designated House Counsel or Expert unless, within 14

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

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Designating Party. Any such objection must set forth in detail the grounds on

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which it is based.

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(c)

A Party that receives a timely written objection must meet and

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

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resolve the matter by agreement within seven days of the written objection. If no

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

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House Counsel or the Expert may file a motion seeking permission from the Court

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

In any such proceeding, the Party opposing disclosure to Designated

24
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[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

17

1

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

2

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

3

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

4

Counsel or Expert.
8.

5

PROSECUTION BAR

6

Absent written consent from the Producing Party, any individual who

7

receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

8

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

9

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

10

manufacturing adhesive sheets, including without limitation the patent(s) asserted

11

in this action and any patent or application claiming priority to or otherwise related

12

to the patent(s) asserted in this action, before any foreign or domestic agency,

13

including the United States Patent and Trademark Office (“the Patent Office”).

14

For purposes of this paragraph, “prosecution” includes directly or indirectly

15

drafting, amending, advising, or otherwise affecting the scope or maintenance of

16

patent claims.3 To avoid any doubt, “prosecution” as used in this paragraph does

17

not include representing a party challenging a patent before a domestic or foreign

18

agency (including, but not limited to, a reissue protest, ex parte reexamination or

19

inter partes reexamination, or post-grant review). This Prosecution Bar shall begin

20

when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

21

“HIGHLY CONFIDENTIAL – SOURCE CODE” information is first received by

22
3

23

Prosecution includes, for example, original prosecution, reissue and
reexamination proceedings.

24
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[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

18

1

the affected individual and shall end two (2) years after final termination of this

2

action, including all appeals.

3
4

9.

SOURCE CODE
(a)

To the extent production of source code becomes necessary in

5

this case, a Producing Party may designate source code as “HIGHLY

6

CONFIDENTIAL – SOURCE CODE” if it comprises or includes confidential,

7

proprietary or trade secret information as defined in section 2.9.

8

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL

9

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

10

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, including the

11

Prosecution Bar set forth in Paragraph 8, and may be disclosed only to the

12

individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

13

ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and 7.4, with

14

the exception of Designated House Counsel.

15

(c)

Any source code produced in discovery shall be made available

16

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

17

during normal business hours or at other mutually agreeable times, at an office of

18

the Producing Party’s counsel or another mutually agreed upon location. The

19

source code shall be made available for inspection on a secured computer in a

20

secured room without Internet access or network access to other computers, and

21

the Receiving Party shall not copy, remove, or otherwise transfer any portion of the

22

source code onto any recordable media or recordable device. The Producing Party

23

may visually monitor the activities of the Receiving Party’s representatives during

24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

19

1

any source code review, but only to ensure that there is no unauthorized recording,

2

copying, or transmission of the source code.

3

(d)

The Receiving Party may request paper copies of limited

4

portions of source code that are reasonably necessary for the preparation of court

5

filings, pleadings, expert reports, or other papers, or for deposition or trial, but

6

shall not request paper copies for the purpose of reviewing the source code other

7

than electronically as set forth in paragraph (c) in the first instance. The Producing

8

Party shall provide all such source code in paper form, including bates numbers

9

and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.” The Producing

10

Party may challenge the amount of source code requested in hard copy form

11

pursuant to the dispute resolution procedure and timeframes set forth in Paragraph

12

6 whereby the Producing Party is the “Challenging Party” and the Receiving Party

13

is the “Designating Party” for purposes of dispute resolution.

14

(e)

The Receiving Party shall maintain a record of any individual

15

who has inspected any portion of the source code in electronic or paper form. The

16

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

17

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

18

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

19

information contained in the paper copies into any electronic format.

20

Receiving Party shall only make additional paper copies if such additional copies

21

are (1) necessary to prepare court filings, pleadings, or other papers (including a

22

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

23

necessary for the preparation of its case. Any paper copies used during a deposition

24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

20

The

1

shall be retrieved by the Producing Party at the end of each day and must not be

2

given to or left with a court reporter or any other unauthorized individual.
10.

3

PROTECTED MATERIAL SUBPOENAED OR ORDERED
PRODUCED IN OTHER LITIGATION

4
5

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

6

litigation that compels disclosure of any information or items designated in this

7

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

8

EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE,” that Party

9

must:
(a)

10
11

promptly notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;
(b)

12

promptly notify in writing the party who caused the subpoena

13

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

14

the subpoena or order is subject to this Protective Order. Such notification shall

15

include a copy of this Stipulated Protective Order; and
(c)

16
17

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.4

18

If the Designating Party timely seeks a protective order, the Party

19

served with the subpoena or court order shall not produce any information

20

designated in this action as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –

21
4

22
23

The purpose of imposing these duties is to alert the interested parties to the
existence of this Protective Order and to afford the Designating Party in this case
an opportunity to try to protect its confidentiality interests in the court from which
the subpoena or order issued.

24
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[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

21

1

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

2

CODE” before a determination by the court from which the subpoena or order

3

issued, unless the Party has obtained the Designating Party’s permission. The

4

Designating Party shall bear the burden and expense of seeking protection in that

5

court of its confidential material – and nothing in these provisions should be

6

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

7

a lawful directive from another court.

8

11.

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

(a)

The terms of this Order are applicable to information produced

9
10
11

by a Non-Party in this action and designated as “CONFIDENTIAL,” “HIGHLY

12

CONFIDENTIAL

13

CONFIDENTIAL – SOURCE CODE.” Such information produced by Non-Parties

14

in connection with this litigation is protected by the remedies and relief provided

15

by this Order. Nothing in these provisions should be construed as prohibiting a

16

Non-Party from seeking additional protections.

17

(b)

–

ATTORNEYS’

EYES

ONLY,”

or

“HIGHLY

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

18

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

19

the Party is subject to an agreement with the Non-Party not to produce the Non-

20

Party’s confidential information, then the Party shall:

21

1.

promptly notify in writing the Requesting Party and the

22

Non-Party that some or all of the information requested is subject to a

23

confidentiality agreement with a Non-Party;

24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

22

2.

1

promptly provide the Non-Party with a copy of the

2

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

3

a reasonably specific description of the information requested; and
3.

4
5

make the information requested available for inspection

by the Non-Party.
(c)

6

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

7

this Court within 14 days of receiving the notice and accompanying information,

8

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

9

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

10

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

11

control that is subject to the confidentiality agreement with the Non-Party before a

12

determination by the Court.5 Absent a court order to the contrary, the Non-Party

13

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

14

Protected Material.
12.

15

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

16

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

17

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

18

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

19

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

20

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

21

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

22

5

23

The purpose of this provision is to alert the interested parties to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to
protect its confidentiality interests in this court.

24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

23

1

of this Order, and (d) request such person or persons to execute the

2

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

3

A.

4

13.

INADVERTENT
PRODUCTION
OF
OTHERWISE PROTECTED MATERIAL

PRIVILEGED

OR

5
6

When a Producing Party gives notice to Receiving Parties that certain

7

inadvertently produced material is subject to a claim of privilege or other

8

protection, the obligations of the Receiving Parties are those set forth in Federal

9

Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify

10

whatever procedure may be established in an e-discovery order that provides for

11

production without prior privilege review. Pursuant to Federal Rule of Evidence

12

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure

13

of a communication or information covered by the attorney-client privilege or

14

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

15

stipulated protective order submitted to the Court.

16
17
18

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.

19

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

20

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

21

disclosing or producing any information or item on any ground not addressed in

22

this Stipulated Protective Order. Similarly, no Party waives any right to object on

23

any ground to use in evidence of any of the material covered by this Protective

24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

24

1

Order.
14.3 Export Control.

2

Disclosure of Protected Material shall be

3

subject to all applicable laws and regulations relating to the export of technical data

4

contained in such Protected Material, including the release of such technical data to

5

foreign persons or nationals in the United States or elsewhere. The Producing

6

Party shall be responsible for identifying any such controlled technical data, and

7

the Receiving Party shall take measures necessary to ensure compliance.

8

14.4 Filing Protected Material. Without written permission from the

9

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

10

persons, a Party may not file in the public record in this action any Protected

11

Material. A Party that seeks to file under seal any Protected Material must comply

12

with Civil Local Rule 79-5.

13

15.

FINAL DISPOSITION

14

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

15

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

16

Producing Party or destroy such material.

17

Protected Material” includes all copies, abstracts, compilations, summaries, and

18

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

19

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

20

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

21

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

22

where appropriate) all the Protected Material that was returned or destroyed and

23

(2) affirms that the Receiving Party has not retained any copies, abstracts,

24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

25

As used in this subdivision, “all

1

compilations, summaries or any other format reproducing or capturing any of the

2

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

3

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

4

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

5

reports, attorney work product, and consultant and expert work product, even if

6

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

7

constitute Protected Material remain subject to this Protective Order as set forth in

8

Section 4 (DURATION).

9
10

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

11

Dated: ____January 9, 2012
/s/ Andrew T. O’Connor_________
______________________________________
Brian M. Gaff
Clinton J. McCord
Andrew T. O’Connor
Edwards Wildman Palmer LLP
Attorneys for Plaintiff

12
13
14
15

Dated: ____January 9, 2012

/s/ Matthew A. Reynolds

16
Matthew A. Reynolds
Kenneth W. Chung
Kring and Chung, LLP
Attorneys for Defendants

17
18
19

PURSUANT TO STIPULATION, IT IS SO ORDERED.
20
21
Dated: January 11, 2012
MARC L. GOLDMAN
United States Magistrate Judge

22
23
24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

26

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

5

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

6

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

7

on

8

SACV 11-01428-DOC (MLGx). 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

12

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

13

or entity except in strict compliance with the provisions of this Order.

[date] in the case of Rakupuri, Inc. v. IdeaMax et al.,

14

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

15

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

16

terms of this Stipulated Protective Order, even if such enforcement proceedings

17

occur after termination of this action.
[print or type full name] of

I hereby appoint

18
19

[print or type full address and

20

telephone number] as my California agent for service of process in connection with

21

this action or any proceedings related to enforcement of this Stipulated Protective

22

Order.

23

///

24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

27

1

Date:

2

City and State where sworn and signed:____________________________

3

Printed name: ________________________

4

Signature: ___________________________

5
6

BOS2_910273.1

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

[PROPOSED] STIPULATED PROTECTIVE ORDER
CIVIL ACTION NO. 8:11-CV-01428-DOC (MLGX)

28