Local.Com Corporation v. Frys Electronics Inc

Filing 26

PROTECTIVE ORDER by Magistrate Judge Jean P Rosenbluth re Stipulation for Protective Order 24 . (See Order for complete details.) (wr)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

CENTRAL DISTRICT OF CALIFORNIA

11
12
13

LOCAL.COM CORPORATION, a
Delaware Corporation.

14

Case No. SA 12-CV-0976 JGB(JPRx)

Plaintiff,

15
16
17

v.
FRY’S ELECTRONICS, INC., a
California Corporation.

18

Defendant.

PROTECTIVE ORDER

[DISCOVERY MATTER]

19
20
21

FRY’S ELECTRONICS, INC., a
California Corporation.

22
23

Counterclaim Plaintiff,
v.

24
25
26

LOCAL.COM CORPORATION, a
Delaware Corporation.
Counterclaim Defendant.

27
28
PROTECTIVE ORDER

1

1.

PURPOSES AND LIMITATIONS

2

Disclosure and discovery activity in this action are likely to involve

3

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

4
5

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

6

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

7

stipulated to and petitioned the court to enter the following Stipulated Protective

8
9
10
11

Order. The parties acknowledge that this Order does not confer blanket protections
on all disclosures or responses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are

12
13
14
15

entitled to confidential treatment under the applicable legal principles. The parties
further acknowledge, as set forth in Section 14.4, below, that this Stipulated
Protective Order does not entitle them to file confidential information under seal;

16
17
18
19

Civil Local Rule 79-5 and General Order 10-7 set forth the procedures that must be
followed and the standards that will be applied when a party seeks permission from
the court to file material under seal.

20
21
22
23

2.

DEFINITIONS
2.1

Challenging Party: a Party or Non Party that challenges the

designation of information or items under this Order.

24
25

2.2

“CONFIDENTIAL” Information or Items: information (regardless of

26

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

27

protection under Federal Rule of Civil Procedure 26(c).

28
1
PROTECTIVE ORDER

1
2
3

2.3

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

Counsel (as well as their support staff).
2.4

Designated House Counsel: House Counsel who seek access to

4
5

“HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” information in this

6

matter.

7

2.5

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

8
9
10
11

items that it produces in disclosures or in responses to discovery as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES
ONLY” or “HIGHLY CONFIDENTIAL SOURCE CODE”.

12
13
14
15
16
17
18
19
20

2.6

Disclosure or Discovery Material: all items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
among other things, testimony, transcripts, and tangible things), that are produced
or generated in disclosures or responses to discovery in this matter.
2.7

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

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

21

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

22

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

23
24
25
26

retention, is not anticipated to become an employee of a Party or of a Party’s
competitor.
2.8

“HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY”

27
28

Information or Items: extremely sensitive “Confidential Information or Items,”
2
PROTECTIVE ORDER

1

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

2

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

3

2.9

“HIGHLY CONFIDENTIAL SOURCE CODE” Information or

4
5

Items: extremely sensitive “Confidential Information or Items” representing

6

computer code and associated comments and revision histories, formulas,

7

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

8
9
10
11

the algorithms or structure of software or hardware designs, disclosure of which to
another Party or Non Party would create a substantial risk of serious harm that
could not be avoided by less restrictive means.

12
13
14
15
16
17
18
19
20

2.10 House Counsel: attorneys who are employees of a party to this action.
House Counsel does not include Outside Counsel of Record or any other outside
counsel.
2.11 Non Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
2.12 Outside Counsel of Record: attorneys who are not employees of a

21

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

22

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

23
24
25
26

which has appeared on behalf of that party.
2.13 Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their

27
28

support staffs).
3
PROTECTIVE ORDER

2.14 Producing Party: a Party or Non Party that produces Disclosure or

1
2

Discovery Material in this action.

3

2.15 Professional Vendors: persons or entities that provide litigation

4
5

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

6

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

7

and their employees and subcontractors.

8
2.16 Protected Material: any Disclosure or Discovery Material that is

9
10
11

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

12
13

CODE.”

14
15
16
17
18
19

2.17 Receiving Party: a Party that receives Disclosure or Discovery
Material from a Producing Party.
3.

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

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

20
21
22
23

extracted from Protected Material; (2) all copies, excerpts, summaries, or
compilations of Protected Material; and (3) any testimony, conversations, or
presentations by Parties or their Counsel that might reveal Protected Material.

24
25

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

26

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

27

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

28
4
PROTECTIVE ORDER

1

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

2

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

3

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

4
5

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

6

who obtained the information lawfully and under no obligation of confidentiality

7

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

8
9
10

by a separate agreement or order.
4.

11

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

12
13
14
15

imposed by this Order shall remain in effect until a Designating Party agrees
otherwise in writing or a court order otherwise directs. Final disposition shall be
deemed to be the later of (1) dismissal of all claims and defenses in this action,

16
17
18
19

with or without prejudice; and (2) final judgment herein after the completion and
exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of

20
21
22
23

time pursuant to applicable law.
5.

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

24
25

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

26

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

27

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

28
5
PROTECTIVE ORDER

1

Designating Party must designate for protection only those parts of material,

2

documents, items, or oral or written communications that qualify so that other

3

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

4
5

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

6

Order. Mass, indiscriminate, or routinized designations are prohibited.

7

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

8
9

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

10

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

11

the Designating Party to sanctions.

12
13
14
15
16
17
18
19
20

If it comes to a Designating Party’s attention that information or items that it
designated for protection do not qualify for protection at all or do not qualify for
the level of protection initially asserted, that Designating Party must promptly
notify all other parties that it is withdrawing the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in

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

21

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

22

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

23
24
25
26

produced.
Designation in conformity with this Order requires:
(a)

for information in documentary form (e.g., paper or electronic

27
28

documents, but excluding transcripts of depositions or other pretrial or trial
6
PROTECTIVE ORDER

1

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

2

“HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” or “HIGHLY

3

CONFIDENTIAL SOURCE CODE” to each page that contains protected

4
5

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

6

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

7

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

8
9
10
11

portion, the level of protection being asserted.
A Party or Non Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting

12
13

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

14

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

15
16

inspection shall be deemed “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES

17

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

18

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

19
20

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

21

specified documents, the Producing Party must affix the appropriate legend

22

(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES

23
24

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

25

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

26

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

27
28
7
PROTECTIVE ORDER

1

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

2

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

3

(b)

for testimony given in deposition that the Designating Party

4
5

identify on the record, before the close of the deposition all protected testimony

6

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

7

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

8
9
10
11

substantial portions of the testimony may qualify for protection, the Designating
Party may invoke on the record (before the deposition, hearing, or other
proceeding is concluded) a right to have up to 21 days to identify the specific

12
13

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

14

of protection being asserted. Only those portions of the testimony that are

15
16

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

17

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

18

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

19
20

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

21

“HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY.” Parties shall give

22

the other parties notice if they reasonably expect a deposition, hearing or other

23
24

proceeding to include Protected Material so that the other parties can ensure that

25

only authorized individuals who have signed the “Acknowledgment and

26

Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of

27
28

a document as an exhibit at a deposition shall not in any way affect its designation
8
PROTECTIVE ORDER

1

as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES

2

ONLY.”

3

Transcripts containing Protected Material shall have an obvious legend on

4
5

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

6

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

7

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

8
9

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

10

these requirements. Any transcript that is prepared before the expiration of a 21

11

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

12
13

designated “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” in its

14

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

15
16
17
18
19
20

shall be treated only as actually designated.
(c)

for information produced in some form other than documentary

and for any other tangible items, that the Producing Party affix in a prominent
place on the exterior of the container or containers in which the information or

21

item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

22

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL SOURCE

23
24

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

25

the Producing Party, to the extent practicable, shall identify the protected

26

portion(s) and specify the level of protection being asserted.

27
28
9
PROTECTIVE ORDER

5.3

1
2
3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

failure to designate qualified information or items does not, standing alone, waive
the Designating Party’s right to secure protection under this Order for such

4
5

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

6

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

7

provisions of this Order.

8
9
10
11

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

12
13
14
15

Designating Party’s confidentiality designation is necessary to avoid foreseeable,
substantial unfairness, unnecessary economic burdens, or a significant disruption
or delay of the litigation, a Party does not waive its right to challenge a

16
17
18
19

confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

20
21
22
23

resolution process by providing written notice of each designation it is challenging
and describing the basis for each challenge. To avoid ambiguity as to whether a
challenge has been made, the written notice must recite that the challenge to

24
25

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

26

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

27

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

28
10
PROTECTIVE ORDER

1

forms of communication are not sufficient) within 10 days of the date of service of

2

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

3

that the confidentiality designation was not proper and must give the Designating

4
5

Party an opportunity to review the designated material, to reconsider the

6

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

7

the chosen designation. A Challenging Party may proceed to the next stage of the

8
9

challenge process only if it has engaged in this meet and confer process first or

10

establishes that the Designating Party is unwilling to participate in the meet and

11

confer process in a timely manner. In complying with this requirement, the parties

12
13

must comply with Local Rules 37-1 and -1 in filing any discovery motion,

14

including the joint stipulation requirement.

15
16

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

17

court intervention, the Designating Party shall file and serve a motion to retain

18

confidentiality under Civil Local Rule 37 (and in compliance with Civil Local

19
20

Rule 79-5 and General Order 10-7, if applicable) in accordance with the guidelines

21

set forth by Local Rule 37, including the requirement of a joint stipulation. Each

22

such motion must be accompanied by a competent declaration affirming that the

23
24

movant has complied with the meet and confer requirements imposed in the

25

preceding paragraph. Failure by the Designating Party to make such a motion

26

including the required declaration within 21 days of receiving notice from the

27
28

challenging party shall automatically waive the confidentiality designation for each
11
PROTECTIVE ORDER

1

challenged designation. In addition, the Challenging Party may file a motion, in

2

accordance with Local Rule 37, challenging a confidentiality designation at any

3

time if there is good cause for doing so, including a challenge to the designation of

4
5

a deposition transcript or any portions thereof. Any motion brought pursuant to

6

this provision must be accompanied by a competent declaration affirming that the

7

movant has complied with the meet and confer requirements imposed by the

8
9

preceding paragraph.

10
11

The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges and those made for an improper purpose

12
13

(e.g., to harass or impose unnecessary expenses and burdens on other parties) may

14

expose the Challenging Party to sanctions. Unless the Designating Party has

15
16

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

17

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

18

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

19
20
21
22
23

Party’s designation until the court rules on the challenge.
7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party may use Protected Material that

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

24
25

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

26

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

27

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

28
12
PROTECTIVE ORDER

1

Receiving Party must comply with the provisions of section 15 below (FINAL

2

DISPOSITION).

3

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

4
5

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

6

authorized under this Order.

7

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

8
9
10
11

otherwise ordered by the court or permitted in writing by the Designating Party, a
Receiving Party may disclose any information or item designated
“CONFIDENTIAL” only to:

12
(a)

13
14
15
16

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

as well as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this litigation and who have signed the

17

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

18

A;

19
20

(b)

the officers, directors, and employees (including House

21

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

22

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

23
24
25
26

Bound” (Exhibit A);
(c)

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

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

27
28

the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
13
PROTECTIVE ORDER

1

(d)

the court and its personnel;

2

(e)

court reporters and their staff, professional jury or trial

3

consultants, and Professional Vendors to whom disclosure is reasonably necessary

4
5

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

6

Be Bound” (Exhibit A);

7

(f)

during their depositions, witnesses in the action to whom

8
9

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

10

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

11

Party or ordered by the court. Pages of transcribed deposition testimony or exhibits

12
13

to depositions that reveal Protected Material must be separately bound by the court

14

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

15
16

Stipulated Protective Order.
(g)

17
18
19
20
21
22

the author or recipient of a document containing the

information or a custodian or other person who otherwise possessed or knew the
information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES

ONLY” and “HIGHLY CONFIDENTIAL SOURCE CODE” Information or

23
24

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

25

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

26

designated “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” or

27
28

“HIGHLY CONFIDENTIAL SOURCE CODE” only to:
14
PROTECTIVE ORDER

(a)

1
2
3

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

as well as employees of said Outside Counsel of Record to whom it is reasonably
necessary to disclose the information for this litigation and who have signed the

4
5

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

6

A;

7

(b)

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

8
9
10
11

no involvement in competitive decision making, (2) to whom disclosure is
reasonably necessary for this litigation, (3) who has signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A), and (4) as to whom the procedures set

12
13
14
15
16

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

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

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

17

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

18

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

19
20
21
22

(d)

the court and its personnel;

(e)

court reporters and their staff, professional jury or trial

consultants, and Professional Vendors to whom disclosure is reasonably necessary

23
24
25

for this litigation and who have signed the “Acknowledgment and Agreement to
Be Bound” (Exhibit A); and

26
27
28
15
PROTECTIVE ORDER

(f)

1
2
3

the author or recipient of a document containing the

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

4
5
6
7

7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL ATTORNEYS’ EYES ONLY” or “HIGHLY
CONFIDENTIAL SOURCE CODE” Information or Items to Designated House

8
9
10
11

Counsel or Experts.
(a)

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

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

12
13

House Counsel any information or item that has been designated “HIGHLY

14

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

15
16

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

17

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

18

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

19
20

reasonably foreseeable future primary job duties and responsibilities in sufficient

21

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

22

competitive decision making.

23
24

(a)

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

25

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

26

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

27
28

CONFIDENTIAL ATTORNEYS’ EYES ONLY” or “HIGHLY
16
PROTECTIVE ORDER

1

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

2

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

3

categories of “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” or

4
5

“HIGHLY CONFIDENTIAL SOURCE CODE” information that the Receiving

6

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

7

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

8
9
10
11

the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
identifies each person or entity from whom the Expert has received compensation
or funding for work in his or her areas of expertise or to whom the expert has

12
13

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

14

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

15
16

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

17

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

18

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

19
20

(b)

A Party that makes a request and provides the information

21

specified in the preceding respective paragraphs may disclose the subject Protected

22

Material to the identified Designated House Counsel or Expert unless, within 10

23
24

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

25

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

26

which it is based.

27
28
17
PROTECTIVE ORDER

(c)

1
2
3

A Party that receives a timely written objection must meet and

confer with the Designating Party (through direct voice to voice dialogue) to try to
resolve the matter by agreement within seven days of the written objection. If no

4
5

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

6

House Counsel or the Expert may file a motion as provided in Civil Local Rule 37

7

(and in compliance with Civil Local Rule 79 5 and General Order 10-7, if

8
9
10
11

applicable) seeking permission from the court to do so. Any such motion must
describe the circumstances with specificity, set forth in detail the reasons why the
disclosure to Designated House Counsel or the Expert is reasonably necessary,

12
13

assess the risk of harm that the disclosure would entail, and suggest any additional

14

means that could be used to reduce that risk. In addition, any such motion must be

15
16

accompanied by a competent declaration describing the parties’ efforts to resolve

17

the matter by agreement (i.e., the extent and the content of the meet and confer

18

discussions) and setting forth the reasons advanced by the Designating Party for its

19
20
21
22

refusal to approve the disclosure. All such disputes are subject to Rules 37-1 and
2.
In any such proceeding, the Party opposing disclosure to Designated House

23
24

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

25

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

26

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

27
28

Counsel or Expert.
18
PROTECTIVE ORDER

1

8.

PROSECUTION BAR

2

Absent written consent from the Producing Party, any individual who

3

receives access to “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY”

4
5

or “HIGHLY CONFIDENTIAL SOURCE CODE” information shall not be

6

involved in the prosecution of patents or patent applications relating to [insert

7

subject matter of the invention and of highly confidential technical information to

8
9
10
11

be produced], including without limitation the patents asserted in this action and
any patent or application claiming priority to or otherwise related to the patents
asserted in this action, before any foreign or domestic agency, including the United

12
13
14
15

States Patent and Trademark Office (“the Patent Office”). For purposes of this
paragraph, “prosecution” includes directly or indirectly drafting, amending,
advising, or otherwise affecting the scope or maintenance of patent claims. To

16
17
18
19

avoid any doubt, “prosecution” as used in this paragraph does not include
representing a party challenging a patent before a domestic or foreign agency
(including, but not limited to, a reissue protest, ex parte reexamination or inter

20
21
22
23

partes reexamination). This Prosecution Bar shall begin when access to “HIGHLY
CONFIDENTIAL ATTORNEYS’ EYES ONLY” or “HIGHLY
CONFIDENTIAL SOURCE CODE” information is first received by the affected

24
25

individual and shall end two (2) years after final termination of this action.

26

9.

SOURCE CODE

27
28
19
PROTECTIVE ORDER

1
2
3

(a)

To the extent production of source code becomes necessary in

this case, a Producing Party may designate source code as “HIGHLY
CONFIDENTIAL SOURCE CODE” if it comprises or includes confidential,

4
5
6
7

proprietary or trade secret source code.
(b)

Protected Material designated as “HIGHLY CONFIDENTIAL

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

8
9
10
11

CONFIDENTIAL ATTORNEYS’ EYES ONLY” information including the
Prosecution Bar set forth in Paragraph 8, and may be disclosed only to the
individuals to whom “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES

12
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
16

(c)

Any source code produced in discovery shall be made available

17

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

18

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

19
20

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

21

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

22

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

23
24

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

25

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

26

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

27
28
20
PROTECTIVE ORDER

1

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

2

recording, copying, or transmission of the source code.

3

(d)

The Receiving Party may request paper copies of limited

4
5

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

6

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

7

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

8
9

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

10

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

11

the label “HIGHLY CONFIDENTIAL SOURCE CODE.” The Producing Party

12
13

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

14

the dispute resolution procedure and timeframes set forth in Paragraph 6 whereby

15
16
17
18
19
20

the Producing Party is the “Challenging Party” and the Receiving Party is the
“Designating Party” for purposes of dispute resolution.
(e)

The Receiving Party shall maintain a record of any individual

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

21

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

22

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

23
24

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

25

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

26

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

27
28

are (1) necessary to prepare court filings, pleadings, or other papers (including a
21
PROTECTIVE ORDER

1

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

2

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

3

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

4
5

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

6

10.

7

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION

8

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

9

that compels disclosure of any information or items designated in this action as

10
11
12
13

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES
ONLY” or “HIGHLY CONFIDENTIAL SOURCE CODE” that Party must:
(a)

promptly notify in writing the Designating Party. Such

14
15
16
17

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

promptly notify in writing the party who caused the subpoena

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

18
19
20
21

the subpoena or order is subject to this Protective Order. Such notification shall
include a copy of this Stipulated Protective Order; and
(c)

cooperate with respect to all reasonable procedures sought to be

22
23
24
25

pursued by the Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served
with the subpoena or court order shall not produce any information designated in

26
27

this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

28

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL SOURCE
22
PROTECTIVE ORDER

1

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

2

issued, unless the Party has obtained the Designating Party’s permission or any

3

court so orders. The Designating Party shall bear the burden and expense of

4
5

seeking protection in that court of its confidential material and nothing in these

6

provisions should be construed as authorizing or encouraging a Receiving Party in

7

this action to disobey a lawful directive from another court.

8
9

11.

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

10
11
12
13

(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” or “HIGHLY

14
15
16
17

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

18
19
20
21

prohibiting a Non Party from seeking additional protections.
(b)

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

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

22
23
24
25

the Party is subject to an agreement with the Non Party not to produce the Non
Party’s confidential information, then the Party shall:
(1)

promptly notify in writing the Requesting Party and the

26
27

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

28

confidentiality agreement with a Non Party;
23
PROTECTIVE ORDER

(2)

1
2
3

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

4
(3)

5
6

make the information requested available for inspection

by the Non Party.

7

(c)

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

8
9
10
11

this court within 14 days of receiving the notice and accompanying information,
the Receiving Party may produce the Non Party’s confidential information
responsive to the discovery request. If the Non Party timely seeks a protective

12
13

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

14

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

15
16

determination by the court or any court so orders. Absent a court order to the

17

contrary, the Non Party shall bear the burden and expense of seeking protection in

18

this court of its Protected Material.

19
20
21
22
23

12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has

disclosed Protected Material to any person or in any circumstance not authorized
under this Stipulated Protective Order, the Receiving Party must immediately (a)

24
25

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

26

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

27

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

28
24
PROTECTIVE ORDER

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
5

13.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

6
When a Producing Party gives notice to Receiving Parties that certain

7
8

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

9

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

10
11
12
13

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

14
15
16
17

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

18
19
20
21

protective order submitted to the court. No such modification will have the effect
or force of a court order unless the Court accepts the modification.
14.

MISCELLANEOUS

22
23
24
25

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

26
27
28

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
25
PROTECTIVE ORDER

1

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

2

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

3

Order.

4
5
6
7

14.3 Export Control. Disclosure of Protected Material shall be subject to
all applicable laws and regulations relating to the export of technical data
contained in such Protected Material, including the release of such technical data

8
9

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

10

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

11

the Receiving Party shall take measures necessary to ensure compliance.

12
13

14.4 Filing Protected Material. Without written permission from the

14

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

15
16

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

17

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

18

with Civil Local Rule 79 5 and General Order 10-7. Protected Material may only

19
20

be filed under seal pursuant to a court order authorizing the sealing of the specific

21

Protected Material at issue. Pursuant to Civil Local Rule 79 5 and General Order

22

10-7, a sealing order will issue only upon a request establishing that the Protected

23
24

Material at issue is privileged, protectable as a trade secret, or otherwise entitled to

25

protection under the law. If a Receiving Party’s request to file Protected Material

26

under seal pursuant to Civil Local Rule 79 5(d) and General Order 10-7 is denied

27
28

by the court, then the Receiving Party may file the Protected Material in the public
26
PROTECTIVE ORDER

1

record pursuant to Civil Local Rule 79 5(e) unless otherwise instructed by the

2

court.

3

15.

FINAL DISPOSITION

4
Within 60 days after the final disposition of this action, as defined in

5
6

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

7

Producing Party or destroy such material. As used in this subdivision, “all

8
9
10
11

Protected Material” includes all copies, abstracts, compilations, summaries, and
any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a

12
13
14
15

written certification to the Producing Party (and, if not the same person or entity,
to the Designating Party) by the 60 day deadline that (1) identifies (by category,
where appropriate) all the Protected Material that was returned or destroyed and

16
17
18
19

(2) affirms that the Receiving Party has not retained any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any of the
Protected Material. Notwithstanding this provision, Counsel are entitled to retain

20
21
22
23

an archival copy of all pleadings, motion papers, trial, deposition, and hearing
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
reports, attorney work product, and consultant and expert work product, even if

24
25

such materials contain Protected Material.

26

//
//
//
//

27
28

27
PROTECTIVE ORDER

1
2

Any such archival copies that contain or constitute Protected Material
remain subject to this Protective Order as set forth in Section 4 (DURATION).

3
4

PURSUANT TO STIPULATION, IT IS SO ORDERED.

5
6

DATED: March 04, 2013
______________________________

7

Hon. Jean P. Rosenbluth

8

Magistrate Judge

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

PROTECTIVE ORDER

EXHIBIT A

1
2
3
4

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of
_________________ [print or type full address], declare under penalty of perjury

5
6
7
8

that I have read in its entirety and understand the Stipulated Protective Order that
was issued by the United States District Court for the Central District of California
on [date] in the case of ___________ [insert formal name of the case and the

9
10
11
12

number and initials assigned to it by the court]. I agree to comply with and to be
bound by all the terms of this Stipulated Protective Order and I understand and
acknowledge that failure to so comply could expose me to sanctions and

13
14
15
16

punishment in the nature of contempt. I solemnly promise that I will not disclose in
any manner any information or item that is subject to this Stipulated Protective
Order to any person or entity except in strict compliance with the provisions of this

17
18
19
20

Order.
I further agree to submit to the jurisdiction of the United States District
Court for the Central District of California for the purpose of enforcing the terms

21
22
23
24

of this Stipulated Protective Order, even if such enforcement proceedings occur
after termination of this action.
I hereby appoint __________________________ [print or type full name] of

25
26

_______________________________________ [print or type full address and

27

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

28
29
PROTECTIVE ORDER

1

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

2

Order.

3
4
5
6
7
8
9

Date: ____________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
30
PROTECTIVE ORDER