Meggitt San Juan Capistrano Inc v. Nie Yongzhong et al

Filing 208

PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick. (nbo)

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Daniel Johnson, Jr. (Bar No. 57409)
[e-mail]
Michael J. Lyons (Bar No. 202284)
[e-mail]
MORGAN, LEWIS & BOCKIUS LLP
3000 El Camino Real, Suite 7000
Palo Alto, CA 94306-2122
Telephone: [phone]
Facsimile: [phone]
Jaime Marquart (Bar No. 200344)
[e-mail]
Mario Moore (SBN 231644)
Christian A. Anstett (Bar No. 240179)
[e-mail]
[e-mail]
MORGAN, LEWIS & BOCKIUS LLP BAKER MARQUART LLP
5 Park Plaza, Suite 1750
10990 Wilshire Boulevard, Fourth Floor
Irvine, CA 92614-3508
Los Angeles, California 90024
Telephone: [phone]
Telephone: [phone]
Facsimile:[phone]
Facsimile: [phone]
Attorneys for Defendants
NIE YONGZHONG aka William Nie and/or
Bill Nie, an individual, and XIAMEN NIELL
ELECTRONICS CO. LTD., a
Chinese corporation
[Counsel continued on next page]

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – SOUTHERN DIVISION

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MEGGITT (ORANGE COUNTY),
INC. dba MEGGITT SENSING
SYSTEMS, a Delaware corporation,
and MEGGITT (MARYLAND), INC., a
Maryland corporation,

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Plaintiffs,

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Case No. SACV 13-0239 DOC
(DFMx)
[PROPOSED] PROTECTIVE
ORDER
Hon. Douglas F. McCormick

vs.
NIE YONGZHONG aka William Nie
and/or Bill Nie, an individual, and
XIAMEN NIELL ELECTRONICS CO.
LTD., a Chinese corporation,
Defendants.

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PROTECTIVE ORDER
DB2/ 25196314.1

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Lawrence R. LaPorte (SBN 130003)
[e-mail]
Allan W. Jansen (SBN 81992)
[e-mail]
Charles A. Kertell (SBN 181214)
[e-mail]
DICKSTEIN SHAPIRO LLP
2049 Century Park East, Suite 700
Los Angeles, CA 90067-3109
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs
MEGGITT (ORANGE COUNTY), INC.
and MEGGITT (MARYLAND), INC.

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PROTECTIVE ORDER
DB2/ 25196314.1

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1.

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

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production of trade secret, confidential, otherwise proprietary, and/or private

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information for which special protection from public disclosure and from use for

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any purpose other than prosecuting this litigation may be warranted. Accordingly,

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because good cause exists, plaintiffs hereby petition the Court to enter the

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following Protective Order (“Order”). The Parties acknowledge that this Order

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

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

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limited information or items that are entitled to confidential treatment under

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applicable legal principles. The Parties further acknowledge, as set forth in

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Paragraph 12.4, below, that this Order does not entitle them to file confidential

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

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

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from the Court to file material under seal.

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2.

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DEFINITIONS
2.1

Challenging Party: A Party or Non-Party that challenges the

designation of information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: Information (regardless of

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

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

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2.3

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

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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 – TRADE SECRET SOURCE

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MATERIAL.”

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2.4

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Disclosure or Discovery Material: All items or information, regardless

of the medium or manner in which it is generated, stored, or maintained (including,
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among other things, testimony, transcripts, and tangible things), that are offered for

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inspection, produced, or generated in disclosures or responses to discovery in this

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matter.

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2.5

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

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Outside Counsel of Record to serve as an expert witness or as a consultant in this

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action; (2) is not a current employee of a Party; (3) is not a current employee of a

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Party’s competitor; and (4) at the time of retention, is not anticipated to become an

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

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2.6

“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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2.7

“HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

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MATERIAL” Information or Items (also referred to as “Trade Secret Source

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Material”): Extremely sensitive “Confidential Information or Items” representing

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the source of trade secret material (e.g., assembly instructions and computer source

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code), disclosure of which to another Party or Non-Party would create a substantial

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

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2.8

In-House Counsel: Attorneys who are employees of a Party to this

action or a Party’s parent company (if the Party is a wholly-owned subsidiary).
2.9

Non-Party: Any natural person, partnership, corporation, association,

or other legal entity not named as a Party to this action.
2.10 Outside Counsel of Record: Attorneys who are not employees of a

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

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have formally appeared in this action on behalf of that Party.

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2.11 Party: Any Party to this action, including all of its officers, directors,

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

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paralegals, patent agents, and secretarial staff).

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2.12 Producing Party: A Party or Non-Party that offers for inspection or
produces Disclosure or Discovery Material in this action.

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2.13 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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2.14 Protected Material: Any Disclosure or Discovery Material that is

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designated as CONFIDENTIAL” “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY,” or “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

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MATERIAL.”

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2.15 Receiving Party: A Party that inspects or receives Disclosure or

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Discovery Material from a Producing Party.

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3.

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SCOPE
The protections conferred by this Order cover not only Protected Material

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(as defined above), but also: (1) any information copied or extracted from

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Protected Material; (2) all copies, excerpts, summaries, or compilations (including

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

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by Parties or their Outside Counsel of Record that might reveal Protected Material.

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However, the protections conferred by this Order do not cover any information that

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is in the public domain at the time of the disclosure to a Receiving Party or

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

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result of publication not involving a violation of the law or this Order.

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4.

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

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

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otherwise in writing or a court order otherwise directs. Final disposition shall be
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deemed to be the later of: (1) dismissal of all claims and defenses in this action,

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

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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of

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time pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection.

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

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

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qualifies under the appropriate standards.
Mass, indiscriminate, or routinized designations are prohibited. Designations

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

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

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to impose unnecessary expenses and burdens on other Parties) expose the

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Designating Party to sanctions.

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

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

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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 provided in

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this Order (See, e.g., the 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. 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 discovery matters),

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that the Producing Party affix the legend “CONFIDENTIAL,” “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY
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CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL” to each page that

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contains protected material.

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

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

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

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

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inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” with the exception of Trade Secret Source Material, where such material

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shall be deemed “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

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MATERIAL” throughout the inspection. After the inspecting Party has identified

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the documents it wants copied and produced, the Producing Party must determine

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which documents, or portions thereof, qualify for protection under this Order.

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Then, before producing the specified documents, the Producing Party must affix

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the appropriate legend (“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –

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

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SECRET SOURCE MATERIAL”) to each page that contains Protected Material.

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(b)

for testimony given in deposition or in other discovery matters,

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

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

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

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

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

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

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have up to seven (7) days to identify the specific portions of the testimony as to

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

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The use of a document as an exhibit at a deposition shall not in any way
affect its designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –

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

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SECRET SOURCE MATERIAL.”

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Transcripts containing Protected Material shall have an obvious legend on

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

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

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

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

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

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

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

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entirety unless otherwise agreed, with the exception that any deposition in which a

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document or thing designated as “HIGHLY CONFIDENTIAL – TRADE SECRET

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SOURCE MATERIAL” was used or which included “HIGHLY CONFIDENTIAL

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– TRADE SECRET SOURCE MATERIAL” testimony will be designated

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“HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL” in its

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entirety unless otherwise agreed. However, if a Non-Designating Party makes a

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request before the expiration of a seven (7) day period for designation, the Parties

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will work together to immediately identify testimony and exhibits that are not

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

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CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL “

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After the expiration of that period, the transcript shall be treated only as

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actually designated. Any portion of a deposition transcript that contains

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information from a document or thing designated as “HIGHLY CONFIDENTIAL

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– TRADE SECRET SOURCE MATERIAL” shall be separately bound from the

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transcript.

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(c)

for information produced in some form other than documentary

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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 – TRADE

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SECRET SOURCE MATERIAL.”

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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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 a

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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 dispute

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

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

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

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confidentiality is being made in accordance with this specific paragraph. The

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Parties shall attempt to resolve each challenge in good faith and must begin the

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process by conferring directly in accordance with Civil Local Rule 37-1. In

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conferring, the Challenging Party must explain the basis for its belief that the

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

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opportunity (not to exceed three (3) days after the Civil Local Rule 37-1

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conference of counsel) to review the designated material, to reconsider the
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circumstances, and, if no change in designation is offered, to explain the basis for

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the chosen designation.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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court intervention, the Challenging Party shall file and serve a motion disputing the

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confidentiality designation in accordance with Civil Local Rule 37-2. In addition,

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the Designating Party may file a motion to retain confidentiality at any time if

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there is good cause for doing so.

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

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Designating Party. Frivolous challenges and those made for an improper purpose

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

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expose the Challenging Party to sanctions. All parties shall continue to afford the

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

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

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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

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

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

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Receiving Party must comply with the provisions of Paragraph 13, below.

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

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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated

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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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(b)

paralegals, patent agents, and secretarial staff employed by the

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Receiving Party’s Outside Counsel of Record in this action, provided it is

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reasonably necessary to disclose the information to such person for this litigation

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and they have signed and returned to the Designating Party the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(c)

two (2) designated In-House Counsel of the Receiving Party

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and two (2) other designated employees of the Receiving Party, provided it is

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reasonably necessary to disclose the information to such person for this litigation

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and they have signed and returned to the Designating Party the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(d)

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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and returned to the Designating Party the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(e)

the Court and its personnel;

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(f)

court reporters and their staff and Professional Vendors to

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

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and returned to the Designating Party the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(g)

and his or her staff;

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any mediator who is assigned by the Court to hear this matter,

(h)

Rule 30(b)(6) witnesses of the Producing Party regardless of

whether the witness is the author or recipient of the document;

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(i)

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; and

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(j)

any other person with the prior written consent of the Producing

Party.
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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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

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in writing by the Designating Party, information, documents, and things designated

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” shall be subject to

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the provisions set forth in Paragraphs 7.3 and 7.4, and may be disclosed, subject to

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Paragraph 7.4, solely to the following persons:

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(a)

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

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(b)

paralegals, patent agents, and secretarial staff employed by the

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Receiving Party’s Outside Counsel of Record in this action, provided it is

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reasonably necessary to disclose the information to such person for this litigation

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and they have signed and returned to the Designating Party the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);

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(c)

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

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reasonably necessary for this litigation; (2) who have signed and returned to the

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Designating Party the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A); and (3) as to whom the procedures set forth in Paragraph 7.7(a), below, have

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been followed;

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(d)

the Court and its personnel;

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(e)

court reporters and their staff and Professional Vendors to

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

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and returned to the Designating Party the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(f)

and his or her staff;

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any mediator who is assigned by the Court to hear this matter,

(g)

Rule 30(b)(6) witnesses of the Producing Party regardless of

whether the witness is the author or recipient of the document;

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(h)

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; and

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(i)

any other person with the prior written consent of the Producing

Party.
7.4

Procedures for Disclosure of “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” Information or Items. The following provisions

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apply to the production of information, documents, and things designated

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” unless otherwise

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agreed by the Producing Party:

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(a)

Absent express written permission from the Producing Party,

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the Receiving Party may not create any electronic images, or any other images, or

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make electronic copies of any information, document, or thing designated

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” except as

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necessary to file, lodge, or otherwise submit documents with the Court (and any

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such electronic image/copy shall be immediately destroyed by the Receiving Party

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after the completion of any such filing, lodging, or submission);

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(b)

The Receiving Party may not create more than six (6) physical

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copies of any information, document, or thing designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY;”

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(c)

When not in use, the Receiving Party’s copies of any

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information, document, or thing designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” must be kept in a secured, locked area at Outside

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Counsel of Record’s offices in the Central District or Northern District of

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California. The Receiving Party may also temporarily keep the copies at: (i) the

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Court for any proceedings(s) relating to the “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” material, but only for the dates associated with the

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proceeding(s); (ii) the sites where any deposition(s) relating to the “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material are taken, provided

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they are in the continental United States, and then only for the dates associated

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with the deposition(s); and (iii) any intermediate location in the continental United

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States reasonably necessary to transport the copies for a hearing or deposition in

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this litigation (e.g., a hotel prior to a deposition). The Receiving Party shall

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exercise due care in maintaining the security of the copies at these temporary

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locations. Under no circumstances shall any information, document, or thing

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS ‘ EYES ONLY”

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obtained by the Receiving Party ever physically leave the continental United

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States.

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(d)

The provisions of this Paragraph 7.4 apply equally to any

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information, document, or thing (including any notes) created or derived from

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information, documents, or things designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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7.5

Disclosure of “HIGHLY CONFIDENTIAL – TRADE SECRET

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SOURCE MATERIAL” Information or Items. Unless otherwise ordered by the

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Court or permitted in writing by the Designating Party, information, documents,

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and things designated “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

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MATERIAL,” shall be subject to the provisions set forth in Paragraphs 7.5 and 7.6,

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and may be disclosed, subject to Paragraph 7.6, solely to the following persons:

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(a)

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

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(b)

paralegals, patent agents, and secretarial staff employed by the

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Receiving Party’s Outside Counsel of Record in this action, provided it is

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reasonably necessary to disclose the information to such person for this litigation

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and they have signed and returned to the Designating Party the “Acknowledgment

26

and Agreement to Be Bound” (Exhibit A);

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(c)

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

reasonably necessary for this litigation; (2) who have signed and returned to the
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Designating Party the “Acknowledgment and Agreement to Be Bound” (Exhibit

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A); and (3) as to whom the procedures set forth in Paragraph 7.7(a), below, have

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been followed;

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(d)

the Court and its personnel;

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(e)

court reporters and their staff who have signed and returned to

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the Designating Party the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(f)

and has signed and returned to the Designating Party the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);

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any mediator who is assigned by the Court to hear this matter,

(g)

Rule 30(b)(6) witnesses of the Producing Party regardless of

whether the witness is the author or recipient of the document;

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(h)

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; and

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(i)

any other person with the prior written consent of the Producing

Party.
7.6

Procedures for Disclosure of “HIGHLY CONFIDENTIAL – TRADE

19

SECRET SOURCE MATERIAL” Information or Items. The following provisions

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apply to the production of information, documents, and things designated

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“HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL,” unless

22

otherwise agreed by the Producing Party:

23

(a)

All Trade Secret Source Material (e.g., assembly instructions

24

and source code) shall be made available by the Producing Party to the Receiving

25

Party in a secure room located at an office of the Producing Party’s outside

26

litigation counsel of record in this litigation located in the Central District of

27

California.

28
13
DB2/ 25196314.1

PROTECTIVE ORDER

1

(b)

No more than a total of four (4) individuals timely identified by

2

the Receiving Party shall have access to the secure room in which the Producing

3

Party produces its Trade Secret Source Material at any one time.

4

(c)

For source code, the inspection shall take place on a secured,

5

stand-alone computer equipped with a reasonably current version of Microsoft

6

Windows operating system or Unix system, and an appropriate software platform

7

for viewing the source code. The secured, stand-alone computer shall not be

8

equipped with either Internet access or network access to other computers. With

9

the exception of a keyboard, mouse, and monitor, all access ports on the secured,

10

non-network, stand-along computer shall be disabled to prevent and protect against

11

any unauthorized copying, transmission, removal, or other transfer of any Trade

12

Secret Source Material outside or away from the secure room and/or computer on

13

which source code is provided for inspection (hereinafter “Source Code

14

Computer”). If necessary, the Source Code Computer may be configured by the

15

Producing Party to run another mutually agreed upon operating system.

16

(d)

The Producing Party shall install tools that are sufficient for

17

viewing and searching the source code produced and on the platform produced.

18

The Receiving Party’s Outside Counsel and/or experts may request on a timely

19

basis that other commercially available software tools for viewing and searching

20

the source code be installed on the Source Code Computer, provided, however, that

21

such tools are reasonably necessary for the Receiving Party to perform its review

22

of the source code consistent with all of the protections herein. The Receiving

23

Party must provide the Producing Party with a storage device containing such

24

licensed software tool(s) or other appropriate mechanism for obtaining the tool at

25

least two (2) days in advance of the date upon which the Receiving Party wishes to

26

have the additional software tools available for use on the Source Code Computer.

27

The Receiving Party or its Expert(s) shall not at any time use any compilers,

28

interpreters, or simulators in connection with the Producing Party’s source code.
14
DB2/ 25196314.1

PROTECTIVE ORDER

1

The Producing Party shall not install any keystroke or other monitoring software

2

on the Source Code Computer.

3
4

(e)

The Producing Party shall make the source code available

electronically and in text searchable form.

5

(f)

Unless the Parties otherwise agree, the secure room and the

6

Source Code Computer shall be made available from 9 a.m. to 7 p.m. local time,

7

Monday through Friday (excluding holidays), until the close of the evidentiary

8

record in this litigation.

9

(g)

Prior to the first inspection of a Producing Party’ s Trade Secret

10

Source Material, the requesting party shall provide the Producing Party three (3)

11

business days’ notice of its intent to access the Producing Party’ s secure room

12

and/or Source Code Computer. This first inspection can take place over as many

13

successive days as the Parties agree to, subject to modification during the

14

inspection. The requesting party shall provide two (2) business days’ notice prior

15

to any subsequent inspections of the same Producing Party’s Trade Secret Source

16

Material. Subsequent inspections can take place over as many successive days as

17

the Parties agree to, subject to modification during the inspection.

18

(h)

The Receiving Party may request copies of those portions of the

19

Trade Secret Source Material (including source code) that are reasonably necessary

20

to facilitate the preparation of court filings, pleadings, and expert reports, as well

21

as for hearing and deposition preparation/exhibits – but shall request copying of

22

only such limited portions as are relevant to the claims and defenses in this case

23

and are reasonably necessary for such purpose. In particular, the Receiving Party

24

shall not print Trade Secret Source Material in order to review pages or blocks of

25

Trade Secret Source Material elsewhere in the first instance (i.e., as an alternative

26

to reviewing that Trade Secret Source Material in the secure room). To that end,

27

the Receiving Party shall not request copies of more than three (3) consecutive

28

pages of any document.
15
DB2/ 25196314.1

PROTECTIVE ORDER

1

(i)

If the Producing Party objects that the portions requested for

2

copying are excessive and/or are not being done for a permitted purpose, the

3

Producing Party shall make such objection known to the Receiving Party within

4

five (5) business days. If, after meeting and conferring, the Producing Party and the

5

Receiving Party cannot resolve the objection, the Producing Party shall be entitled

6

to seek the Court’s resolution of whether the request for copying of the Trade

7

Secret Source Material in question was in excess and/or for a non-permitted

8

Purpose using the same procedure as set forth in Paragraph 6 (whereby the

9

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

10

“Designating Party”). The burden shall be on the Receiving Party to demonstrate

11

that the number of pages requested for copying is reasonable and not for an

12

improper purpose.

13

(j)

The Trade Secret Source Material sought to be copied shall be

14

labeled with “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

15

MATERIAL.” The Producing Party will keep the originals of the copied

16

documents, and copies shall be made for Outside Counsel within seven (7) days –

17

unless an objection under Paragraph 7.6(i), above, is timely made. If a timely

18

objection is made, the Producing Party will retain the originals and all requested

19

copies until the objection is decided by the Court.

20

(k)

Absent express written permission from the Producing Party,

21

the Receiving Party may not create any electronic images, or any other images, or

22

make electronic copies of any information, document, or thing designated

23

“HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL” except

24

as necessary to file, lodge, or otherwise submit documents with the Court (and any

25

such electronic image/copy shall be immediately destroyed by the Receiving Party

26

after the completion of any such filing, lodging, or submission);

27
28
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DB2/ 25196314.1

PROTECTIVE ORDER

1

(l)

The Receiving Party may not create more than two (2)

2

additional physical copies of any information, document, or thing designated

3

“HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL;”

4

(m)

When not in use, the Receiving Party’s copies of any

5

information, document, or thing designated “HIGHLY CONFIDENTIAL –

6

TRADE SECRET SOURCE MATERIAL” must be kept in a secured, locked area

7

at Outside Counsel of Record’s offices in the Central District or Northern District

8

of California. The Receiving Party may also temporarily keep the copies at: (i) the

9

Court for any proceedings(s) relating to the “HIGHLY CONFIDENTIAL –

10

TRADE SECRET SOURCE MATERIAL,” but only for the dates associated with

11

the proceeding(s); (ii) the sites where any deposition(s) relating to the “HIGHLY

12

CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL” are taken,

13

provided they are in the continental United States, and then only for the dates

14

associated with the deposition(s); and (iii) any intermediate location in the

15

continental United States reasonably necessary to transport the copies for a hearing

16

or deposition in this litigation (e.g., a hotel prior to a deposition). The Receiving

17

Party shall exercise due care in maintaining the security of the copies at these

18

temporary locations. Under no circumstances shall any information, document, or

19

thing designated “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

20

MATERIAL” obtained by the Receiving Party ever physically leave the

21

continental United States.

22

(n)

The provisions of this Paragraph 7.6 apply equally to any

23

information, document, or thing (including any notes) created or derived from

24

information, documents, or things designated “HIGHLY CONFIDENTIAL –

25

TRADE SECRET SOURCE MATERIAL.”

26

(o)

The Receiving Party shall be entitled to take notes relating to

27

the Trade Secret Source Material (subject to all of the restrictions contained

28

herein), but may not block copy the Trade Secret Source Material into the notes.
17
DB2/ 25196314.1

PROTECTIVE ORDER

1

No copies of all or any portion of the Trade Secret Source Material may leave the

2

room in which the Trade Secret Source Material is inspected except as otherwise

3

provided herein. The Producing Party may visually, but not otherwise, monitor the

4

activities of the Receiving Party’s representatives during any Trade Secret Source

5

Material review, but only to ensure that no information concerning the Trade

6

Secret Source Material is being created or transmitted in any way. The Producing

7

Party may not observe or inspect the Receiving Party’s notes or monitor the

8

portions of Trade Secret Source Material reviewed by the Receiving Party’s

9

representative.

10

(p)

Other than as provided in this Order, the Receiving Party will

11

not copy, remove, or otherwise transfer any Trade Secret Source Material from the

12

secure room, including, without limitation, copying, removing, or transferring the

13

Trade Secret Source Material onto any recordable media or recordable device,

14

including without limitation sound recorders, computers, cellular telephones,

15

peripheral equipment, cameras, CDs, DVDs, or drives of any kind. The Receiving

16

Party will not transmit any Trade Secret Source Material in any way from the

17

Producing Party’s secured facilities or the offices of the Producing Party’s Outside

18

Counsel located in the Central District of California;

19

(q)

The Producing Party shall provide representatives of the

20

Receiving Party performing the inspection of the Trade Secret Source Material

21

with access to another secure location in the same building as the secure room to

22

store personal belongings. The Producing Party shall not be permitted to observe or

23

record the activities of the Receiving Party’s representative(s) while in the secure

24

location, and shall permit the representative(s) to access the secure location on an

25

“as needed” basis. Unless otherwise agreed in advance by the Parties in writing, at

26

the end each day on which inspection is done under this Order, the Receiving

27

Party’s Outside Counsel and/or Expert(s) shall remove all notes, documents, and

28

all other materials from the secure room.
18
DB2/ 25196314.1

PROTECTIVE ORDER

1

7.7

Procedures for Approving or Objecting to Disclosure of “HIGHLY

2

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY

3

CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL” Information or

4

Items to Experts.

5

(a)

Unless otherwise ordered by the Court or agreed to in writing

6

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

7

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

8

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY

9

CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL” pursuant to

10

Paragraph 7.3(c) or 7.5(c) must first make a written request to the Designating

11

Party that: (1) identifies the general categories of “HIGHLY CONFIDENTIAL –

12

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – TRADE

13

SECRET SOURCE MATERIAL” information that the Receiving Party seeks

14

permission to disclose to the Expert; (2) sets forth the full name of the Expert and

15

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

16

Expert’s current resume or curriculum vitae; (4) identifies the Expert’s current

17

employer(s); and (5) identifies each person or entity from whom the Expert has

18

received compensation or funding for work in his or her areas of expertise or to

19

whom the expert has provided professional services, including in connection with a

20

litigation, at any time during the preceding five (5) years.1

21

(b)

A Party that makes a request and provides the information

22

specified in the preceding respective paragraphs may disclose the subject Protected

23

Material to the Expert unless, within seven (7) days of delivering the request, the

24
25
1

26
27
28

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.
19
DB2/ 25196314.1

PROTECTIVE ORDER

1

Party receives a written objection from the Designating Party. Any such objection

2

must set forth in detail the grounds on which it is based.

3

(c)

A Party that receives a timely written objection must meet and

4

confer with the Designating Party to try to resolve the matter by agreement within

5

three (3) business days of the written objection. No further conference of counsel

6

will be required under Civil Local Rule 37-1. If no agreement is reached, the Party

7

seeking to make the disclosure to the Expert may file a motion as provided in Civil

8

Local Rule 37-2 seeking permission from the court to do so. Any such motion must

9

describe the circumstances with specificity, set forth in detail the reasons why

10

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

11

disclosure would entail, and suggest any additional means that could be used to

12

reduce that risk.

13

In any such proceeding, the Party opposing disclosure to the Expert shall

14

bear the burden of proving that the risk of harm that the disclosure would entail

15

(under the safeguards proposed) outweighs the Receiving Party’s need to disclose

16

th Protected Material to its Expert.

17

7.8

Restrictions on the use of Protected Material. The restrictions on the

18

use of “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

19

ONLY,” and “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

20

MATERIAL” Disclosure or Discovery Material established by this Order are

21

applicable only to Disclosure or Discovery Material received by a Party from

22

another Party or from a Non-Party as a direct result of this litigation. A Party is

23

free to do whatever it desires with its own “CONFIDENTIAL,” “HIGHLY

24

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY

25

CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL” Disclosure or

26

Discovery Materials in its sole and complete discretion.

27
28
20
DB2/ 25196314.1

PROTECTIVE ORDER

1

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2

IN OTHER LITIGATION

3

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

4

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

5

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

6

ONLY,” or “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

7

MATERIAL,” that Party must:

8
9

(a)

promptly notify in writing the Designating Party. Such

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

10

(b)

promptly notify in writing the party who caused the subpoena

11

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

12

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

13

copy of this Order; and

14
15

(c)

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.2

16

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

17

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

18

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

19

EYES ONLY,” or “HIGHLY CONFIDENTIAL – TRADE SECRET SOURCE

20

MATERIAL” before a determination by the court from which the subpoena or

21

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

22

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

23

court of its confidential material.

24
25
26
27
28

2

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.
21
DB2/ 25196314.1

PROTECTIVE ORDER

1
2

9.

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

3

(a)

The terms of this Order are applicable to information produced

4

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

5

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY

6

CONFIDENTIAL – TRADE SECRET SOURCE MATERIAL.” Such information

7

produced by Non-Parties in connection with this litigation is protected by the

8

remedies and relief provided by this Order. Nothing in these provisions should be

9

construed as prohibiting a Non-Party from seeking additional protections.

10

(b)

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

11

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

12

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

13

Party’s confidential information, then the Party shall:

14

1.

promptly notify in writing the Requesting Party and the

15

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

16

confidentiality agreement with a Non-Party;

17

2.

promptly provide the Non-Party with a copy of the

18

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

19

reasonably specific description of the information requested; and

20
21

3.

make the information requested available for inspection

by the Non-Party.

22

(c)

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

23

this Court within ten (10) days of receiving the notice and accompanying

24

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

25

information responsive to the discovery request. Absent a court order to the

26

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

27

this court of its Protected Material.

28
22
DB2/ 25196314.1

PROTECTIVE ORDER

1

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

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

3

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

4

under this Order, the Receiving Party must immediately: (1) notify in writing the

5

Designating Party of the unauthorized disclosures; (2) use its best efforts to

6

retrieve all unauthorized copies of the Protected Material; (3) inform the person or

7

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

8

Order; and (4) request such person or persons to execute the “Acknowledgment

9

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

10

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

11

PROTECTED MATERIAL

12

Pursuant to Rule 502 of the Federal Rules of Evidence, the inadvertent

13

production of documents subject to the attorney-client privilege, the attorney work

14

product doctrine, or any other applicable privilege or protection from disclosure

15

will not waive the privilege or protection from disclosure. In addition, the Parties

16

agree that if a document subject to the attorney-client privilege, the attorney work-

17

product doctrine, or any other applicable privilege or protection from disclosure is

18

included in documents made available for inspection, such disclosure shall not be

19

considered a waiver of the privilege or protection from disclosure.

20

The Producing Party must notify the receiving Party within seven (7)

21

business days of becoming aware of the inadvertent disclosure of privileged or

22

protected information. Upon a request from a Party that has inadvertently produced

23

any document that it believes is subject to the attorney-client privilege, the attorney

24

work product doctrine, or any other applicable privilege or protection from

25

disclosure, each Party receiving said document shall return it and all physical

26

copies to the Producing Party and destroy all electronic copies within ten (10)

27

business days. Nothing herein shall prevent the Receiving Party from preparing a

28

record for its own use containing the date, author, addressee(s), and topic of the
23
DB2/ 25196314.1

PROTECTIVE ORDER

1

document and such other information as is reasonably necessary to identify the

2

document and describe its nature to the Court in any motion to compel production

3

of the document. Such a record of the identity and nature of a document may not

4

be made or used for any purpose other than preparation of a motion to compel in

5

this Action. Any other information in the document may not be used for any

6

purpose in this Action. After the return of the document(s), the Receiving Party

7

may challenge the Producing Party’s claim(s) of privilege, protection, or work-

8

product by making a motion to the Court.

9

When a Producing Party gives notice to Receiving Parties that certain

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

stipulated protective order submitted to the court.

19

12.

20
21
22

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

person to seek its modification by the court in the future.
12.2 Right to Assert Other Objections. By stipulating to the entry of this

23

Order no Party waives any right it otherwise would have to object to disclosing or

24

producing any information or item on any ground not addressed in this Order.

25

Similarly, no Party waives any right to object on any ground to use in evidence of

26

any of the material covered by this Order.

27
28

12.3 Export Control. Disclosure of Protected Material shall be subject to all
applicable United States laws and regulations relating to the export of technical
24
DB2/ 25196314.1

PROTECTIVE ORDER

1

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

2

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

3

Producing Party shall be responsible for identifying any such controlled technical

4

data, and the Receiving Party shall take measures necessary to ensure compliance.

5

12.4 Filing Protected Material. Without written permission from the

6

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

7

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

8

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

9

with Civil Local Rule 79-5. Protected Material may only be filed under seal

10

pursuant to a court order authorizing the sealing of the specific Protected Material

11

at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a

12

request establishing that the Protected Material at issue is privileged, protectable as

13

a trade secret, or otherwise entitled to protection under the law.

14

13.

FINAL DISPOSITION

15

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

16

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

17

Producing Party. As used in this subdivision, “all Protected Material” includes all

18

copies, abstracts, compilations, summaries, and any other format reproducing or

19

capturing any of the Protected Material. The Receiving Party must also 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; and (2) affirms that

23

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

24

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

25

Material.

26

14.

27
28

RETROACTIVE EFFECT
This Order shall apply retroactively to the date the instant Action was filed.

All materials produced during the course of the Action prior to the execution of
25
DB2/ 25196314.1

PROTECTIVE ORDER

1

this Order that were designated as “CONFIDENTIAL” or “HIGHLY

2

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be subject to the terms

3

and conditions of this Order.

4

IT IS SO ORDERED:

5
6

Dated:

July 9, 2014

By:
Hon. Douglas F. McCormick
United States Magistrate Judge

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
26
DB2/ 25196314.1

PROTECTIVE ORDER

1

EXHIBIT A

2

Acknowledgement and Agreement to be Bound

3

I,

[print or type full name] of

4

[print or type full address] hereby

5

declare and certify, under penalty of perjury, that I understand that information,

6

documents, and/or things deemed trade secret, confidential, and/or proprietary may

7

be provided to me pursuant to the terms and restrictions of the Joint Protective

8

Order in the case of Meggitt (Orange County), Inc., et al. v. Nie Yongzhong, et al.,

9

Case No. SACV 13¬239 DOC (DFMx). I have been given a copy of, and have

10

read the Joint Protective Order, entered by the United States District Court for the

11

Central District of California on February ___, 2014. I understand the terms of the

12

Joint Protective Order, and that the trade secret, confidential, and/or proprietary

13

materials that I receive and my copies or notes relating thereto may only be

14

disclosed and discussed with those persons permitted by the Joint Protective Order

15

to receive such information – and I solemnly promise that I will not disclose in any

16

manner any information or item that is subject to the Joint Protective Order to any

17

person or entity except in strict compliance with the provisions of that Order. I

18

agree, under penalty of contempt and other civil remedies, to be bound by such

19

terms, and I understand and acknowledge that failure to so comply could expose

20

me to sanctions and punishment in the nature of contempt.

21

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

22

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

23

Joint Protective Order, even if such enforcement proceedings occur after

24

termination of this action.

25

I hereby appoint

[print or type full name]

26

of

27

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

28

action or any proceedings related to enforcement of the Joint Protective Order.

[print or type full name and telephone

27
DB2/ 25196314.1

PROTECTIVE ORDER

1
2
3

Dated:
Signature

4
5

Name (Printed or Typed)

6
7

City and State where Sworn and Signed

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
28
DB2/ 25196314.1

PROTECTIVE ORDER