TCL Communication Technology Holdings, Ltd v. Telefonaktienbolaget LM Ericsson et al

Filing 362

STIPULATED SUPPLEMENTAL PROTECTIVE ORDER by Magistrate Judge Douglas F. McCormick: See document for further information. (lwag)

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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA, SOUTHERN DIVISION

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11 TCL COMMUNICATION
TECHNOLOGY HOLDINGS, LTD., et
12 al.

Consolidated with CV15-02370 JVS

Plaintiffs,

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Case No. SACV14-00341 JVS (DFMx)

v.

15 TELEFONAKTIEBOLAGET LM
ERICSSON, et al.
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Defendants.
17 ________________________________

[PROPOSED] STIPULATED
SUPPLEMENTAL
PROTECTIVE ORDER
BETWEEN NON-PARTY
QUALCOMM INC.,
PLAINTIFFS, AND
DEFENDANTS

18 TELEFONAKTIEBOLAGET LM
ERICSSON, et al.,
19
Plaintiffs,
20
v.
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22 TCL COMMUNICATION
TECHNOLOGY HOLDINGS, LTD. et
23
al.,
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Defendants.
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-1-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 GOOD-CAUSE STATEMENT
2

WHEREAS, The Honorable Arthur Nakazato, United States Magistrate

3 Judge, entered the Protective Order to govern discovery in the above-captioned
4 matters (“these actions”) on December 8, 2014, see Dkt. No. 72, and the Court may
5 enter subsequent protective orders (“Protective Order”); and
6

WHEREAS, TCL Communication Technology Holdings, LTD., TCT Mobile

7 Limited, and TCT Mobile (US), Inc., (collectively, “Plaintiffs” or “TCL”); Ericsson,
8 Inc. and Telefonaktiebolaget LM Ericsson (collectively “Defendants” or “TCL”)
9 (together, hereinafter referred to as “the Parties”); and Qualcomm Incorporated
10 (“QUALCOMM”), a non-party to this action, may produce confidential source
11 code, schematics, and other documents in this action that include or incorporate
12 CONFIDENTIAL INFORMATION belonging to QUALCOMM (“QUALCOMM
13 Confidential Information”);
14

WHEREAS the Parties and Non-Party QUALCOMM have agreed to

15 additional provisions to protect against misuse or disclosure of such QUALCOMM
16 Confidential Information;
17

WHEREFORE, IT IS HEREBY ORDERED that source code, schematics, or

18 documents that incorporate QUALCOMM Confidential Information produced in
19 connection with the above-captioned matters that are designated as “QUALCOMM
20 – OUTSIDE ATTORNEYS’ EYES ONLY” and “QUALCOMM – OUTSIDE
21 ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE” shall be
22 subject to the following restrictions:
23 A.

Definitions

24

1.

“QUALCOMM MATERIAL”: Confidential information (regardless of

25 how generated, stored, or maintained) or tangible things that include or incorporate
26 Non-Party QUALCOMM Confidential Information, that Non-Party QUALCOMM
27 (i) would not normally reveal to third parties except in confidence, or has
28 undertaken with others to maintain in confidence, (ii) believes in good faith is
-2-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 significantly sensitive, or (iii) protected by a right to privacy under federal or state
2 law, or any other applicable privilege or right related to confidentiality or privacy.
3 QUALCOMM MATERIAL includes all information, documents, source code,
4 schematics, testimony, and things produced, served, or otherwise provided in this
5 action by any Party or by Non-Party QUALCOMM, that include or incorporate
6 QUALCOMM Confidential Information.
7

2.

“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” material:

8 information, documents, and things that include or incorporate QUALCOMM
9 MATERIAL.
10

3.

“Source Code”: includes human-readable programming language text

11 that defines software, firmware, (collectively, “software Source Code”) and
12 integrated circuits (“hardware Source Code”). Text files containing Source Code
13 shall hereinafter be referred to as “Source Code files.” Software Source Code files
14 shall include, but are not limited to, files containing Source Code in “C,” “C++,”
15 BREW, Java ME, J2ME, assembler, digital signal processor (DSP) programming
16 languages, and other human readable text programming languages. Software Source
17 Code files further include “.include files,” “make” files, “link” files, and other
18 human-readable text files used in the generation and/or building of software directly
19 executed on a microprocessor, micro-controller, or DSP. Hardware Source Code
20 files include, but are not limited to, files containing Source Code in VDHL, Verilog,
21 and other Hardware Description Language (“HDL”) formats, including but not
22 limited to, Register Transfer Level (“RTL”) descriptions.
23

4.

“Chip-Level Schematics”: means symbolic representations of analog

24 electric or electronic circuits from which the physical structure of a chip is directly
25 derived.
26

5.

“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –

27 CONFIDENTIAL SOURCE CODE” Material: QUALCOMM MATERIAL that
28 includes Source Code and Chip-Level Schematics that constitute proprietary
-3-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 technical or commercially sensitive competitive information that Non-Party
2 QUALCOMM maintains as highly confidential in its business, the disclosure of
3 which is likely to cause harm to the competitive position of Non-Party
4 QUALCOMM. This includes Source Code and Chip-Level Schematics in the
5 Producing Party’s possession, custody, or control, and made available for inspection
6 by the Producing Party.
7

6.

“Designated QUALCOMM Material”: material that is designated

8 “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” or “QUALCOMM –
9 OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE”
10 under this Supplemental Protective Order.
11

7.

“Designated Source Code Material”: material that is designated

12 “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL
13 SOURCE CODE” under this Supplemental Protective Order.
14

8.

“Personnel Retained by a Receiving Party in this Action” means any

15 consultants, experts, or outside counsel (including their support staff) that have been
16 and continue to be retained by a Receiving Party in this action. For the sake of
17 clarity, any person who was retained by a Receiving Party in this action will no
18 longer fall under this definition if that person ceases to be retained by a Receiving
19 Party in this action.
20

9.

“Party” means any Party to the above-captioned actions, including all

21 of its officers, directors, employees, consultants, retained experts, and all support
22 staff thereof.
23

10.

“Producing Party” means a party or non-party that discloses or

24 produces Designated QUALCOMM Material in the above-captioned actions.
25

11.

“Receiving Party” a Party that receives Designated QUALCOMM

26 Material from a Producing Party in the above-captioned actions.
27

12.

“Authorized Reviewer(s)” shall mean persons authorized to review

28 “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” and “QUALCOMM –
-4-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE”
2 material in accordance with this Supplemental Protective Order and the Protective
3 Order.
4

13.

“Counsel of Record”: (i) Outside Counsel who appears on the

5 pleadings, or has entered an appearance in this action, as counsel for a Party, and (ii)
6 partners, principals, counsel, associates, employees, and contract attorneys of such
7 Outside Counsel to whom it is reasonably necessary to disclose the information for
8 this litigation, including supporting personnel employed by the attorneys, such as
9 paralegals, legal translators, legal secretaries, legal clerks and shorthand reporters.
10

14.

“Outside Consultant”: a person with specialized knowledge or

11 experience in a matter pertinent to the litigation who has been retained by Counsel
12 of Record to serve as an expert witness or a litigation consultant in this action
13 (including any necessary support personnel of such person to whom disclosure is
14 reasonably necessary for this litigation), and who is not a current employee of a
15 Party, of a competitor of a Party, or of Non-Party QUALCOMM, and who, at the
16 time of retention, is not anticipated to become an employee of, or a non-litigation
17 consultant of: 1) a Party, 2) a competitor of a Party, 3) a competitor of Non-Party
18 QUALCOMM, or of 4) Non-Party QUALCOMM.
19

15.

“Professional Vendors”: persons or entities that provide litigation

20 support services (e.g., photocopying; videotaping; translating; designing and
21 preparing exhibits, graphics, or demonstrations; organizing, storing, retrieving data
22 in any form or medium; etc.) and their employees and subcontractors who have been
23 retained or directed by Counsel of Record in this action, and who are not current
24 employees of a Party, a competitor of a Party, or of Non-Party QUALCOMM, and
25 who, at the time of retention, are not anticipated to become employees of: 1) a Party,
26 2) a competitor of a Party, 3) a competitor of Non-Party QUALCOMM, or 4) Non27 Party QUALCOMM. This definition includes ESI vendors, and professional jury or
28 trial consultants retained in connection with this litigation to assist a Party, Counsel
-5-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 of Record, or any Outside Consultant in their work. Professional vendors do not
2 include consultants who fall within the definition of Outside Consultant.
3 B.

Relationship to Protective Order

4

16.

This Supplemental Protective Order shall not diminish any existing

5 restriction with respect to Designated QUALCOMM Material. The Parties and
6 QUALCOMM acknowledge and agree that this Supplemental Protective Order is a
7 supplement to the Protective Order entered in this action on December 8, 2014 in
8 the United States District Court, Central District of California, in these actions. The
9 Protective Order applies to all material designated pursuant to this Supplemental
10 Protective Order. To the extent that there is any confusion or conflict between
11 protective orders with respect to Designated QUALCOMM Material, then this
12 Supplemental Protective Order governs.
13

17.

In addition to the restrictions outlined in this Supplemental Protective

14 Order, material designated as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES
15 ONLY – CONFIDENTIAL SOURCE CODE” shall be subject to obligations with
16 respect to “RESTRICTED CONFIDENTIAL SOURCE CODE” materials outlined
17 in the Protective Order.
18

18.

In addition to the restrictions outlined in this Supplemental Protective

19 Order, material designated as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES
20 ONLY” shall be subject to obligations with respect to “RESTRICTED –
21 ATTORNEYS’ EYES ONLY” material outlined in the Protective Order.
22 C.

Scope

23

19.

The protections conferred by this Supplemental Protective Order cover

24 not only Designated QUALCOMM Material (as defined above), but also any
25 information copied or extracted therefrom, as well as all copies, excerpts,
26 summaries, or compilations thereof. Nothing herein shall alter or change in any way
27 the discovery provisions of the Federal Rules of Civil Procedure or any applicable
28 local rules or General Orders. Identification of any individual pursuant to this
-6-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 Supplemental Protective Order does not make that individual available for
2 deposition, or any other form of discovery outside of the restrictions and procedures
3 of the Federal Rules of Civil Procedure or any applicable rules or General Orders.
4

20.

This Supplemental Protective Order shall not prevent a disclosure to

5 which Non-Party QUALCOMM consents in writing before that disclosure takes
6 place.
7

21.

This Supplemental Protective Order shall apply to all Designated

8 QUALCOMM Material that is produced or provided for inspection in this action,
9 including all Designated QUALCOMM Material that is in the possession, custody
10 or control of QUALCOMM or any Party in these actions, or that is otherwise
11 relevant to these actions.
12 D.

Access to Designated QUALCOMM Material

13

22.

Access to “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY”

14 Material: Unless otherwise ordered by the Court or permitted in writing by Non15 Party QUALCOMM, a Receiving Party may disclose any information, document or
16 thing designated “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” only
17 to:
18

a.

Persons who appear on the face of Designated QUALCOMM

19

Material as an author, addressee or recipient thereof, or persons

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who have been designated under FRCP 30(b)(6) to provide

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testimony of behalf of a Producing Party or Qualcomm regarding

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the same;

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b.

Counsel of Record;

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c.

Outside Consultants of the Receiving Party to whom disclosure

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is reasonably necessary for this litigation, and who have, after the

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date of this Supplemental Protective Order, signed the

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“Acknowledgement And Agreement To Be Bound By

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Supplemental Protective Order Governing Confidential
-7-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

Information of Non-Party Qualcomm In This Case” attached

2

hereto as Exhibit A, and the “Certification Of Consultant Re

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Supplemental Protective Order Governing Confidential

4

Information of Non-Party Qualcomm In This Case,” attached

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hereto as Exhibit B;

6

d.

Any designated arbitrator or mediator who is assigned to hear

7

this matter, or who has been selected by the Parties, and his or

8

her staff; who have, after the date of this Supplemental

9

Protective Order, signed the “Acknowledgement And Agreement

10

To Be Bound By Supplemental Protective Order Governing

11

Confidential Information of Non-Party Qualcomm In This Case”

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attached hereto as Exhibit A, and the “Certification Of

13

Consultant Re Supplemental Protective Order Governing

14

Confidential Information of Non-Party Qualcomm In This Case,”

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attached hereto as Exhibit B, as well as any arbitrator’s or

16

mediator’s staff who have also signed Exhibits A and B;

17

e.

18
19

Court reporters and videographers employed in connection with
this action; and

f.

Professional Vendors to whom disclosure is reasonably

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necessary for this action, and a representative of which has

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signed the “Acknowledgement And Agreement To Be Bound By

22

Supplemental Protective Order Governing Confidential

23

Information of Non-Party Qualcomm In This Case” attached

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hereto as Exhibit A, subject to the following exception:

25

Designated QUALCOMM Material shall not be disclosed to

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mock jurors without Non-Party QUALCOMM’s express written

27

consent;

28

g.

The Court and its personnel.
-8-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

23.

Access to “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY

2 – CONFIDENTIAL SOURCE CODE” Material: Unless otherwise ordered by the
3 Court or permitted in writing by Non-Party QUALCOMM, a Receiving Party may
4 disclose any information, document, or thing designated “QUALCOMM –
5 OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE”
6 only to:
7

a.

Persons who appear on the face of Designated QUALCOMM

8

Material as an author, addressee or recipient thereof, or persons

9

who have been designated under FRCP 30(b)(6) to provide

10

testimony of behalf of a Producing Party or Qualcomm regarding

11

the same;

12

b.

Counsel of Record;

13

c.

Outside Consultants of the Receiving Party to whom disclosure

14

is reasonably necessary for this litigation, and who have, after the

15

date of this Supplemental Protective Order, signed the

16

“Acknowledgement And Agreement To Be Bound By

17

Supplemental Protective Order Governing Confidential

18

Information of Non-Party Qualcomm In This Case” attached

19

hereto as Exhibit A, and the “Certification Of Consultant Re

20

Supplemental Protective Order Governing Confidential

21

Information of Non-Party Qualcomm In This Case,” attached

22

hereto as Exhibit B;

23

d.

Any designated arbitrator or mediator who is assigned to hear

24

this matter, or who has been selected by the Parties, and his or

25

her staff; who have, after the date of this Supplemental

26

Protective Order, signed the “Acknowledgement And Agreement

27

To Be Bound By Supplemental Protective Order Governing

28

Confidential Information of Non-Party Qualcomm In This Case”
-9-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

attached hereto as Exhibit A, and the “Certification Of

2

Consultant Re Supplemental Protective Order Governing

3

Confidential Information of Non-Party Qualcomm In This Case,”

4

attached hereto as Exhibit B, as well as any arbitrator’s or

5

mediator’s staff who have also signed Exhibits A and B,

6

provided, however, that before such disclosure, QUALCOMM is

7

provided notice including: (a) the individual’s name and business

8

title; (b) business address; (c) business or professions; and (d) the

9

individual’s CV. QUALCOMM shall have five (5) business

10

days from receipt of the notice to object in writing to such

11

disclosure (plus three (3) extra days if notice is given other than

12

by hand delivery, e-mail delivery or facsimile transmission).

13

After the expiration of the 5 business days (plus 3 days, if

14

appropriate) period, if no objection has been asserted, then

15

“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –

16

CONFIDENTIAL SOURCE CODE” materials may be disclosed

17

pursuant to the terms of this Supplemental Protective Order;

18

e.

Court reporters and videographers employed in connection with

19

this action, subject to the provisions provided in subparagraph

20

33(g) herein;

21

f.

Professional Vendors to whom disclosure is reasonably

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necessary for this action, and a representative of which has

23

signed the “Acknowledgement And Agreement To Be Bound By

24

Supplemental Protective Order Governing Confidential

25

Information of Non-Party Qualcomm In This Case” attached

26

hereto as Exhibit A, subject to the following exception:

27

Designated QUALCOMM Material shall not be disclosed to

28
-10-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

mock jurors without Non-Party QUALCOMM’s express written

2

consent; and

3
4

g.
24.

The Court and its personnel.

Notwithstanding the Protective Order, unless otherwise ordered or

5 agreed in writing by Non-Party QUALCOMM, Designated QUALCOMM Material
6 may not be disclosed to employees of a Receiving Party, including its in-house
7 attorneys and support staff.
8

25.

Notwithstanding the Protective Order, unless otherwise ordered or

9 agreed in writing by Non-Party QUALCOMM, Designated QUALCOMM Material
10 may not be disclosed to mock jurors.
11

26.

Notwithstanding the Protective Order, unless otherwise ordered or

12 agreed in writing by Producing Party, Designated QUALCOMM Material may not
13 be disclosed to any in-house counsel for the Receiving Party.
14

27.

The Parties acknowledge that Designated QUALCOMM Material also

15 may be subject to the US government export control and economic sanctions laws,
16 including the Export Administration Regulations (“EAR”, 15 CFR 730 et seq.,
17 http://www.bis.doc.gov/ ) administered by the Department of Commerce, Bureau of
18 Industry and Security, and the Foreign Asset Control Regulations (31 CFR 500 et
19 seq., http://www.treas.gov/offices/enforcement/ofac/) administered by the
20 Department of Treasury, Office of Foreign Assets Control (“OFAC”). Receiving
21 Parties may not directly or indirectly export, re-export, transfer or release
22 (collectively, “Export”) any Designated QUALCOMM Material to any destination,
23 person, entity or end use prohibited or restricted under US law without prior US
24 government authorization to the extent required by regulation. The US government
25 maintains embargoes and sanctions against the countries listed in Country Groups
26 E:1/2 of the EAR (Supplement 1 to part 740), currently Cuba, Iran, Libya, North
27 Korea, North Sudan and Syria but any amendments to these lists shall apply.
28
-11-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

28.

Receiving Party may host “QUALCOMM – OUTSIDE ATTORNEYS’

2 EYES ONLY” Material only on either 1) any system inside the firewall of a law
3 firm representing the Receiving Party, or 2) inside the system of a professional ESI
4 Vendor retained by Counsel of Record of the Receiving Party. “QUALCOMM –
5 OUTSIDE ATTORNEYS’ EYES ONLY” Material also cannot be sent or
6 transmitted to any person, location, or vendor outside of the United States except to
7 Counsel of Record and Outside Consultants designated pursuant to subparagraphs
8 22(c) and 23(c) above. To the extent that any “QUALCOMM – OUTSIDE
9 ATTORNEYS’ EYES ONLY” Material is transmitted from or to authorized
10 recipients outside of the Receiving Party’s Outside Counsel’s office, or outside of
11 the ESI Vendor’s system, the transmission shall be by hand (and encrypted if in
12 electronic format), by a secure transport carrier (e.g., Federal Express), or by
13 encrypted electronic means. “QUALCOMM – OUTSIDE ATTORNEYS’ EYES
14 ONLY – CONFIDENTIAL SOURCE CODE” may not be transmitted by electronic
15 means.
16

29.

Each person to whom Designated QUALCOMM Material may be

17 disclosed, and who is required to sign the “Acknowledgement And Agreement To
18 Be Bound By Supplemental Protective Order Governing Confidential Information
19 of Non-Party Qualcomm In This Case” attached hereto as Exhibit A and, if
20 applicable, the “Certification Of Consultant Re Supplemental Protective Order
21 Governing Confidential Information of Non-Party Qualcomm In This Case,”
22 attached hereto as Exhibit B, shall do so, prior to the time such Designated
23 QUALCOMM Material is disclosed to him or her. Counsel for the Receiving Party
24 who makes any disclosure of Designated QUALCOMM Material shall retain each
25 original executed certificate and, upon written request, shall provide copies to
26 counsel for Non-Party QUALCOMM at the termination of this action.
27

30.

Absent written permission from Non-Party QUALCOMM, persons not

28 permitted access to Designated QUALCOMM Material under the terms of this
-12-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 Supplemental Protective Order shall not be present at depositions while Designated
2 QUALCOMM Material is discussed or otherwise disclosed. Pre-trial and trial
3 proceedings shall be conducted in a manner, subject to the supervision of the Court,
4 to protect Designated QUALCOMM Material from disclosure to persons not
5 authorized to have access to such Designated QUALCOMM Material. Any Party
6 intending to disclose or discuss Designated QUALCOMM Material at pretrial or
7 trial proceedings must give advance notice to the Producing Party to assure the
8 implementation of the terms of this Supplemental Protective Order.
9 E.
10

Access By Outside Consultants
31.

Notice. If a Receiving Party wishes to disclose Designated

11 QUALCOMM Material to any Outside Consultant, Receiving Party must, prior to
12 the Outside Consultant being granted access to any Designated QUALCOMM
13 Material, provide notice to counsel for Non-Party QUALCOMM, which notice shall
14 include: (a) the individual’s name and business title; (b) business address; (c)
15 business or profession; (d) the individual’s CV; (e) any previous or current
16 relationship (personal or professional) with Non-Party QUALCOMM or any of the
17 Parties to this action; (f) a list of other cases in which the individual has testified (at
18 trial or deposition) within the last six years; (g) a list of all companies with which
19 the individual has consulted or by which the individual has been employed within
20 the last four years, the dates of the consultancy or employment, a brief description of
21 the subject matter of the consultancy or employment, and copies of the
22 “Acknowledgement and Agreement To Be Bound By Supplemental Protective
23 Order Governing Confidential Information of Non-Party Qualcomm In This Case,”
24 attached as Exhibit A, and the “Certification Of Consultant Re Supplemental
25 Protective Order Governing Confidential Information of Non-Party Qualcomm In
26 This Case,” attached hereto as Exhibit B, that have both been signed by that Outside
27 Consultant.
28
-13-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

32.

Objections. With respect to Outside Consultants that have not been

2 previously disclosed to Non-Party QUALCOMM, Non-Party QUALCOMM shall
3 have five (5) business days, starting from the first business day following the date
4 upon which Receiving Party provides the notice and all information required by
5 paragraph 31 to the Producing Party, to object for good cause in writing to such
6 disclosure (plus three (3) extra days if notice is given in any manner other than by
7 hand delivery, e-mail delivery or facsimile transmission). After the expiration of the
8 5 business days (plus 3-days, if appropriate) period, if no objection for good cause
9 has been asserted by Non-Party QUALCOMM, then Designated QUALCOMM
10 Material may be disclosed to the Outside Consultant pursuant to the terms of this
11 Supplemental Protective Order. Any objection by Non-Party QUALCOMM must
12 be made for good cause, and must set forth in detail the grounds on which it is
13 based. Should Receiving Party disagree with the basis for the objection(s),
14 Receiving Party must first attempt to resolve the objection(s) informally with Non15 Party QUALCOMM. If the informal efforts do not resolve the dispute within five
16 (5) business days from the date upon which Receiving Party was first notified of any
17 objection for good cause by Non-Party QUALCOMM, Receiving Party may file a
18 motion requesting that the objection(s) be quashed after that five (5) day period has
19 passed. Non-Party Qualcomm shall have the burden of proof by a preponderance of
20 the evidence on the issue of the sufficiency of the objection(s). Pending a ruling by
21 the Court upon any such objection(s), or the subsequent resolution of the objection
22 for good cause by Receiving Party and Non-Party QUALCOMM, the discovery
23 material shall not be disclosed to the person objected to by Non-Party
24 QUALCOMM.
25 ///
26 ///
27
28
-14-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 F.

Production of QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY
– CONFIDENTIAL SOURCE CODE Material

2
3
4

33.

Non-Party QUALCOMM’s Source Code and Chip-Level Schematics:
a.

To the extent that a Producing Party makes Non-Party

5

QUALCOMM’s Source Code or Chip-Level Schematics

6

available for inspection:

7

(i) The Producing Party shall make all relevant and properly

8

requested Non-Party QUALCOMM Source Code available

9

electronically and in text searchable form (1) if produced by

10

Non-Party QUALCOMM, in a separate room at a secure facility

11

selected by Non-Party QUALCOMM or (2) if produced by

12

Defendants, at the offices of Counsel of Record for the

13

producing Defendant or at a secure facility approved by

14

QUALCOMM. The Producing Party shall make the Source

15

Code available for inspection on a stand-alone, non-networked

16

personal computer running a reasonably current version of the

17

Microsoft Windows operating system (“Source Code

18

Computer”). Alternatively, solely at the option of the Producing

19

Party, the Producing Party may make such source code available

20

on a Source Code Computer that is networked, in a configuration

21

deemed secure by Non-Party QUALCOMM. The Source Code

22

Computer shall be configured to permit review of the Source

23

Code through a password-protected account having read-only

24

access. To facilitate review of the Source Code at the secure

25

facility, the Receiving Party may use appropriate tool software

26

on the Source Code Computer, which shall be installed by the

27

Producing Party, including at least one text editor like Visual

28

Slick Edit that is capable of printing out Source Code with page
-15-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

and/or line numbers, a source code comparison tool like Araxis

2

Merge, and at least one multi-text file text search tool such as

3

“grep.” Should it be necessary, other mutually agreed upon tools

4

may be used. Licensed copies of other mutually agreed upon tool

5

software shall be installed on the Source Code Computer by the

6

Producing Party and paid for by the Receiving Party.

7

(ii) The Producing Party shall make all relevant and properly

8

requested Chip-Level Schematics available for inspection

9

electronically on the Source Code Computer in a secure room at

10

a secure facility selected by Non-Party QUALCOMM. The

11

Producing Party shall ensure that the Source Code Computer

12

includes software sufficient to allow a user to view such

13

electronic Chip-Level Schematics.

14

b.

The Producing Party shall provide access to the Source Code

15

Computer during the normal operating hours of the secure

16

facility.

17

c.

The Source Code Computer shall be equipped to allow printing

18

of the Source Code and Chip-Level Schematics made available

19

for inspection by the Producing Party. Copies of Source Code

20

and Chip-Level Schematics shall only be made on watermarked

21

pre-Bates numbered paper, which shall be provided by the

22

Producing Party. Under no circumstances are original printouts

23

of the Source Code or Chip-Level Schematics to be made except

24

for directly onto the watermarked and numbered sides of the

25

paper provided by the Producing Party. Additionally, the

26

Receiving Party may not print any continuous block of source

27

code that results in more than 50 consecutive printed pages,

28

except that Authorized Reviewer(s) may request the printing of a
-16-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

continuous block of more than 50 pages, which request shall not

2

be unreasonably denied by the Producing Party. Counsel for the

3

Producing Party will keep the original printouts, and shall

4

provide copies of such original printouts to counsel for the

5

Receiving Party within four (4) business days of (1) any request

6

by the Receiving Party, or (2) otherwise being notified that such

7

original printouts have been made or designated. Counsel of

8

Record for the Receiving Party may request up to 10 copies of

9

each original printout of Source Code or Chip-Level Schematics.

10

No more than 10% or 500 pages of the total Source Code (not

11

including copies of original printouts) whichever is greater, for

12

any software release (or in the case of hardware Source Code, for

13

any hardware product), no more than 500 pages of Chip-Level

14

Schematics, and no continuous blocks of Source Code or Chip-

15

Level Schematics that exceed 50 pages, may be in printed form

16

at any one time, without the express written consent of Non-

17

Party QUALCOMM, which shall not be unreasonably denied.

18

All printed Source Code and Chip-Level Schematics shall be

19

logged by Receiving Party’s Counsel of Record and/or other

20

Personnel Retained by a Receiving Party in this action as noted

21

in subparagraph 33 (i) below. No additional electronic copies of

22

the Source Code or Chip-Level Schematics shall be provided by

23

the Producing Party. Hard copies of the Source Code or Chip-

24

Level Schematics also may not be converted into an electronic

25

document, and may not be scanned using optical character

26

recognition (“OCR”) technology. Only printouts of Source Code

27

and Chip-Level Schematics may be made, and such printouts

28

must include (1) directory path information and filenames from
-17-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

which the Source Code and Chip-Level Schematics came and (2)

2

line numbers. The Producing Party may refuse to provide copies

3

of Source Code and Chip-Level Schematics printouts that fail to

4

comply with this section.

5

d.

Authorized Reviewer(s) in this action shall not print Source

6

Code or Chip-Level Schematics which have not been reviewed

7

on the Source Code Computer, or in order to review the Source

8

Code or Chip-Level Schematics elsewhere in the first instance,

9

i.e., as an alternative to reviewing that Source Code or Chip-

10

Level Schematics electronically on the Source Code Computer,

11

as the Parties and QUALCOMM acknowledge and agree that the

12

purpose of the protections herein would be frustrated by such

13

actions.

14

e.

Authorized Reviewer(s) are prohibited from bringing outside

15

electronic devices, including but not limited to laptops, floppy

16

drives, zip drives, or other hardware into the secure room. Nor

17

shall any cellular telephones, personal digital assistants (PDAs),

18

Blackberries, cameras, voice recorders, Dictaphones, external or

19

portable telephone jacks or other outside electronic devices be

20

permitted inside the secure room, except for medical devices,

21

implants, or equipment reasonably necessary for any legitimate

22

medical reason.

23

f.

If any Authorized Reviewer(s) reviewing Non-Party

24

QUALCOMM’s Source Code or Chip-Level Schematics seeks to

25

take notes, all such notes will be taken on bound (spiral or other

26

type of permanently bound) notebooks. No loose paper or other

27

paper that can be used in a printer may be brought into the secure

28

room.
-18-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

g.

In the event copies of Source Code or Chip-Level Schematic

2

printouts are used as exhibits in a deposition, additional copies

3

may be made for the witness and outside counsel for the parties.

4

The printouts shall not be provided to the court reporter, except

5

that the one copy for the witness which will be used as an exhibit

6

can be provided to the court reporter for the purpose of marking

7

the exhibit, and the further copies of the original QUALCOMM

8

Source Code or Chip-Level Schematics printouts made for the

9

deposition or trial shall be destroyed at the conclusion of the

10

deposition or trial. The original copies of deposition exhibits

11

designated “QUALCOMM – OUTSIDE ATTORNEYS’ EYES

12

ONLY – CONFIDENTIAL SOURCE CODE” will be

13

maintained by the deposing party under the terms set forth in this

14

Supplemental Protective Order.

15

h.

In addition to other reasonable steps to maintain the security and

16

confidentiality of Non-Party QUALCOMM’s Source Code and

17

Chip-Level Schematics, printed copies of the Designated Source

18

Code Material maintained by the Receiving Party must be kept in

19

a locked storage container when not being actively reviewed or

20

otherwise being transferred as permitted by the Protective Order

21

and/or this Supplemental Protective Order.

22

i.

The Receiving Party’s Counsel of Record shall keep log(s)

23

recording the identity of each individual beyond Counsel of

24

Record to whom each hard copy of each Producing Party’s

25

QUALCOMM Source Code or Chip-Level Schematics is

26

provided and when it was provided to that person in the first

27

instance, and within thirty (30) days after the issuance of a final,

28

non-appealable decision resolving all issues in this action, the
-19-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

Receiving Party must serve upon Non-Party QUALCOMM the

2

log. In addition, any Outside Consultants of the Receiving Party

3

to whom the paper copies of the QUALCOMM Source Code or

4

Chip-Level Schematics were provided must certify in writing

5

that all copies of the QUALCOMM Source Code or Chip-Level

6

Schematics were destroyed or returned to the counsel who

7

provided them the information and that they will make no use of

8

the Source Code or Chip-Level Schematics, or of any knowledge

9

gained from the source code in any future endeavor.

10 G.

Procedure for Designating Materials

11

34.

Subject to the limitations set forth in the Protective Order and in this

12 Supplemental Protective Order, any Party or Non-Party QUALCOMM may:
13 designate as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” or
14 information that it believes, in good faith, meets the definition set forth in paragraph
15 2 above; and designate as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES
16 ONLY – CONFIDENTIAL SOURCE CODE” information that it believes, in good
17 faith, meets the definition set forth in paragraph 5 above.
18

35.

Except as provided above in paragraph 33 with respect to

19 “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL
20 SOURCE CODE” Material, any material, including (including physical objects)
21 made available by Non-Party QUALCOMM for initial inspection by counsel for the
22 Receiving Party prior to producing copies of selected items shall initially be
23 considered, as a whole, to constitute “QUALCOMM – OUTSIDE ATTORNEYS’
24 EYES ONLY” information, and shall be subject to this Order. Thereafter, Non25 Party QUALCOMM shall have seven (7) calendar days from the inspection to
26 review and designate the appropriate documents as “QUALCOMM – OUTSIDE
27 ATTORNEYS’ EYES ONLY” prior to furnishing copies to the Receiving Party.
28
-20-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

a.

Any disagreement with regard to designations of QUALCOMM

2

Material under this supplemental protective order shall be

3

governed by Article E of the protective order entered in the

4

above-captioned case on December 8, 2014, Dkt. No. 72.

5

36.

Designation in conformity with the Protective Order and this

6 Supplemental Protective Order shall be made as follows:
7

a.

For information in documentary (including “electronically stored

8

information”) form (apart from transcripts of depositions or other

9

pretrial or trial proceedings): the Designating Party shall affix

10

the legend “QUALCOMM – OUTSIDE ATTORNEYS’ EYES

11

ONLY” or “QUALCOMM – OUTSIDE ATTORNEYS’ EYES

12

ONLY – CONFIDENTIAL SOURCE CODE” conspicuously on

13

each page that contains Protected Material.

14

A party or non-party that makes original documents or

15

materials available for inspection need not designate them for

16

protection until after the Receiving Party has indicated which

17

material it would like copied or produced. Before and during the

18

inspection, all material made available for inspection shall be

19

deemed “QUALCOMM – OUTSIDE ATTORNEYS’ EYES

20

ONLY.” After the Receiving Party has identified the documents

21

it wants copied and produced, the Producing Party must

22

determine which documents, or portions thereof, qualify for

23

protection under this Order and, before producing the specified

24

documents, the Producing Party must affix the appropriate

25

legend to each page that contains Designated QUALCOMM

26

Material.

27
28

b.

For Testimony Given in Deposition: For deposition transcripts,
the Designating Party shall specify any portions of the testimony
-21-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

that it wishes to designate, by line and page number, no later than

2

20 business days after the final transcript of the deposition has

3

been received. The Party or Non-Party may identify the entirety

4

of the transcript as “QUALCOMM – OUTSIDE ATTORNEYS’

5

EYES ONLY” or “QUALCOMM – OUTSIDE ATTORNEYS’

6

EYES ONLY – CONFIDENTIAL SOURCE CODE,” but all

7

deposition transcripts not designated during the deposition will

8

nonetheless be treated as “QUALCOMM – OUTSIDE

9

ATTORNEYS’ EYES ONLY” or “QUALCOMM – OUTSIDE

10

ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE

11

CODE,” until the time within which it may be appropriately

12

designated as provided for herein has passed. Any Protected

13

Material that is used in the taking of a deposition shall remain

14

subject to the provisions of this Supplemental Protective Order

15

and the Protective Order in these actions, along with the

16

transcript pages of the deposition testimony dealing with such

17

Protected Material. In such cases the court reporter shall be

18

informed of this Supplemental Protective Order and shall be

19

required to operate in a manner consistent with this

20

Supplemental Protective Order. Transcript pages containing

21

Designated Material must be separately bound by the court

22

reporter, who must affix to the top of each such page the legend

23

“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY”

24

and/or “QUALCOMM – OUTSIDE ATTORNEYS’ EYES

25

ONLY – CONFIDENTIAL SOURCE CODE.” An encrypted,

26

password protected copy of deposition transcripts containing

27

Designated Qualcomm Material made pursuant to this paragraph

28

may be hosted electronically by the Receiving Party on any
-22-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

system inside the firewall of a law firm representing the

2

Receiving Party, however, all other restrictions in this

3

Supplemental Protective Order pertaining to Designated Source

4

Code Material apply. In the event the deposition is videotaped,

5

the original and all copies of the videotape shall be marked by

6

the video technician to indicate that the contents of the videotape

7

are subject to this Supplemental Protective Order and the

8

Protective Order, substantially along the lines of “This videotape

9

contains confidential or outside counsel eyes only confidential

10

testimony used in this case and is not to be viewed or the

11

contents thereof to be displayed or revealed except pursuant to

12

the terms of the operative protective orders in this matter or

13

pursuant to written stipulation of the parties.” Counsel for any

14

Designating Party shall have the right to exclude from oral

15

depositions, other than the deponent, deponent’s counsel, and the

16

reporter and videographer (if any), any person who is not

17

authorized by the Protective Orders in this action to receive or

18

access Protected Material based on the designation of such

19

Protected Material.

20

c.

For information produced in some form other than documentary,

21

and for any other tangible items, the Designating Party shall

22

affix, in a prominent place on the exterior of the medium,

23

container or containers in which the information or item is

24

stored, the appropriate legend.

25

d.

The provisions of subparagraphs 36(a-c) do not apply to

26

documents produced in native format. For documents produced

27

in native format, the parties shall provide written notice to the

28
-23-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1

Receiving Party of any confidentiality designations at the time of

2

production.

3 H.

Use of Designated QUALCOMM Material

4

37.

Use of Designated QUALCOMM Material By Receiving Party:

5 Unless otherwise ordered by the Court, or agreed to in writing by Non-Party
6 QUALCOMM, all Designated QUALCOMM Material, and all information derived
7 therefrom, shall be used by the Receiving Party only for purposes of this action, and
8 shall not be used in any other way, or for any other purpose, including the
9 acquisition, preparation or prosecution before the Patent office of any patent, patent
10 application, for drafting or revising patent claims, or in connection with patent
11 licensing or product development work directly or indirectly intended for
12 commercial purposes related to the particular technologies or information disclosed
13 in the Designated QUALCOMM Material. Information contained or reflected in
14 Designated QUALCOMM Material shall not be disclosed in conversations,
15 presentations by parties or counsel, in court or in other settings that might reveal
16 Designated QUALCOMM Material, except in accordance with the terms of the
17 Protective Order or this Supplemental Protective Order.
18

38.

Use of Designated QUALCOMM Material by Non-Party

19 QUALCOMM: Nothing in this Supplemental Protective Order shall limit Non20 Party QUALCOMM’s use of its own documents and information, nor shall it
21 prevent Non-Party QUALCOMM from disclosing its own confidential information,
22 documents or things to any person. Such disclosure shall not affect any designations
23 made pursuant to the terms of this Supplemental Protective Order, so long as the
24 disclosure is made in a manner that is reasonably calculated to maintain the
25 confidentiality of the information.
26

39.

Use of Designated QUALCOMM Material at Deposition: Non-Party

27 QUALCOMM shall, on request prior to the deposition, make a searchable electronic
28 copy of the QUALCOMM Source Code available on a stand-alone computer
-24-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 connected to a printer during depositions of QUALCOMM personnel otherwise
2 permitted access to such Source Code. To the extent required, the party conducting
3 the deposition may print additional pages of Source Code printouts to be marked as
4 exhibits at such depositions consistent with other provisions and limitations of the
5 Protective Order and this Supplemental Protective Order. Except as may be
6 otherwise ordered by the Court, any person may be examined as a witness at
7 depositions and trial, and may testify concerning all Designated QUALCOMM
8 Material of which such person has prior knowledge.
9

40.

Use of Designated QUALCOMM Material at Hearing or Trial: The

10 parties will give Non-Party QUALCOMM prior notice of, and an opportunity to
11 object to, any intended use of the Designated QUALCOMM Material at any hearing
12 or trial in this case. Said notice shall (a) be served by facsimile or email on counsel
13 for Non-Party QUALCOMM at least five (5) business days prior to the hearing or
14 first day of trial, (2) identify the Designated QUALCOMM Material with specificity
15 while redacting any other Party’s Confidential Business Information and (3) identify
16 the measures the party intends to rely upon to protect the Designated QUALCOMM
17 Material when used at any hearing or trial consistent with this Supplemental
18 Protective Order. This section shall not limit in any way the use of Designated
19 QUALCOMM Material during the cross-examination of any witness otherwise
20 permitted access to such Designated QUALCOMM Material, as long as the parties
21 take all necessary steps to protect and maintain the confidentiality of any such
22 Designated QUALCOMM Material.
23 I.

Prosecution and Development Bar

24

41.

Unless otherwise permitted in writing between Producing Party and

25 Receiving Party, any individual who personally receives, other than on behalf of
26 Producing Party, any material designated “QUALCOMM – OUTSIDE
27 ATTORNEYS’ EYES ONLY” or “QUALCOMM – OUTSIDE ATTORNEYS’
28 EYES ONLY – CONFIDENTIAL SOURCE CODE” shall not participate in
-25-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 amending or drafting patent specifications or claims before a Patent Office of any
2 patent or patent application related to the information disclosed in the Designated
3 QUALCOMM Material, from the time of receipt of such material through the date
4 the individual person(s) cease to have access to materials designated
5 “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” or “QUALCOMM –
6 OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE,” as
7 well as any materials that contain or disclose Designated QUALCOMM Material.
8 This provision shall not apply to post-grant proceedings, including without
9 limitation reexamination, inter-partes review or opposition proceedings filed in
10 relation to the patents-in-suit or foreign counterparts.
11

42.

Unless otherwise permitted in writing between Non-Party

12 QUALCOMM and Receiving Party, any Outside Consultant retained on behalf of
13 Receiving Party who is to be given access to Non-Party QUALCOMM’s
14 documents, Source Code, or Chip-Level Schematics designated as “QUALCOMM –
15 OUTSIDE ATTORNEYS’ EYES ONLY” or “QUALCOMM – OUTSIDE
16 ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE” must agree in
17 writing, using the form in Exhibit B, not to perform hardware or software
18 development work or product development work directly or indirectly intended for
19 commercial purposes related to the information disclosed in the Designated
20 QUALCOMM Material, which is not publicly known, from the time of first receipt
21 of such material through the date the expert consultant ceases to have access to any
22 material designated “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” or
23 “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL
24 SOURCE CODE,” as well as any materials that contain or disclose Designated
25 QUALCOMM Material.
26 ///
27 ///
28
-26-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 J.

Designated QUALCOMM Material Subpoenaed or Ordered Produced In
Other Litigation

2
3

43.

If a Receiving Party is served with a subpoena or a court order that

4 would compel disclosure of any information, documents or things designated in this
5 action as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” or
6 “QUALCOMM –OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL
7 SOURCE CODE,” Receiving Party must notify the Producing Party and Non-Party
8 QUALCOMM of such information, documents or things, in writing (by fax and
9 email) promptly, and in no event more than ten (10) calendar days after receiving
10 the subpoena or order. Such notification must include a copy of the subpoena or
11 order. Receiving Party also must immediately inform, in writing, the party who
12 caused the subpoena or order to issue that some or all of the material covered by the
13 subpoena or order is subject to this Supplemental Protective Order and the
14 Protective Order. In addition, the Receiving Party must provide a copy of this
15 Supplemental Protective Order and the Protective Order promptly to the party in the
16 other action that caused the subpoena or order to issue. The purpose of imposing
17 these duties is to alert the interested parties to the existence of this Supplemental
18 Protective Order and the Protective Order, and to afford the Party whose Designated
19 QUALCOMM Material in this case, is at issue in the other case, an opportunity to
20 try to protect its confidentiality interests in the court from which the subpoena or
21 order issued. Producing Party shall bear the burdens and the expenses of seeking
22 protection in that court of its Designated QUALCOMM Material. Nothing in these
23 provisions should be construed as authorizing or encouraging any Receiving Party
24 in this action to disobey a lawful directive from another court.
25 K.

Unauthorized Disclosure Of Designated QUALCOMM Material

26

44.

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

27 disclosed Designated QUALCOMM Material to any person or in any circumstance
28 not authorized under this Order, the Receiving Party must immediately (a) notify in
-27-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 writing Producing Party and Non-Party QUALCOMM of the unauthorized
2 disclosures, (b) use its best efforts to retrieve all copies of the Designated
3 QUALCOMM Material, (c) inform the person or persons to whom unauthorized
4 disclosures were made of all the terms of this Order, and (d) request such person or
5 persons to execute the “Acknowledgment and Agreement to Be Bound By
6 Supplemental Protective Order Governing Confidential Information of Non-Party
7 Qualcomm In This Case” that is attached hereto as Exhibit A. Nothing in these
8 provisions should be construed as limiting any Producing Party’s rights to seek
9 remedies for a violation of this Supplemental Protective Order.
10 L.

Duration

11

45.

Even after the termination of this action, the confidentiality obligations

12 imposed by this Supplemental Protective Order shall remain in effect following the
13 termination of this action, or until Non-Party QUALCOMM agrees otherwise in
14 writing or a court order otherwise directs.
15 M.

Final Disposition

16

46.

Unless otherwise ordered or agreed in writing by Producing Party,

17 within sixty (60) days of the termination of all of this action, whether through
18 settlement or final judgment (including any and all appeals therefrom), each
19 Receiving Party, including Outside Counsel for each Receiving Party, will destroy
20 all Designated QUALCOMM Material produced by Non-Party QUALCOMM or
21 any other Party in this action and will destroy or redact any such Designated
22 QUALCOMM Material included in work product, pleadings, motion papers, legal
23 memoranda, correspondence, trial transcripts and trial exhibits admitted into
24 evidence (“derivations”) and all copies thereof, with the exception of copies stored
25 on back-up tapes or other disaster recovery media. Within sixty (60) days of the
26 date of settlement or final judgment, each Receiving Party shall serve Non-Party
27 QUALCOMM with a certification stating that it, including its Outside Counsel, has
28 complied with its obligations under this paragraph. With respect to any copy of
-28-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1 Designated QUALCOMM Material or derivation thereof that remains on back-up
2 tapes and other disaster storage media of an Authorized Reviewer(s), neither the
3 Authorized Reviewer(s) nor its consultants, experts, counsel or other party acting on
4 its behalf shall make copies of any such information available to any person for any
5 purpose other than backup or disaster recovery unless compelled by law and, in that
6 event, only after thirty (30) days prior notice to Producing Party or such shorter
7 period as required by court order, subpoena, or applicable law.
8
9 Dated: September 10, 2015
10
11

__________________________________
Hon. Douglas F. McCormick
United States Magistrate Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-29-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

EXHIBIT A

1

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND BY
SUPPLEMENTAL PROTECTIVE ORDER GOVERNING CONFIDENTIAL
INFORMATION OF NON-PARTY QUALCOMM IN THIS CASE
3
2

4
5

I, _______________________________________ [print or type full name],

6 state: My business address is
7 ______________________________________________________;
8

1.

My present employer is

9 _____________________________________________;
10

2.

My present occupation or job description is

11 _____________________________;
12

3.

I have been informed of and have reviewed the Supplemental

13 Protective Order Governing Discovery from Non-Party QUALCOMM in this case
14 (the “Supplemental Protective Order”) entered in this case, and understand and
15 agree to abide by its terms. I agree to keep confidential all information provided to
16 me in the matters of ________________ _________________________________,
17 Civil Action No(s). ____________________________
18 _________________________________in the United States District Court, Central
19 District of California in accordance with the restrictions in the Supplemental
20 Protective Order, and to be subject to the authority of that Court in the event of any
21 violation or dispute related to the Supplemental Protective Order.
22

4.

I state under penalty of perjury under the laws of the United States of

23 America that the foregoing is true and correct.
24

_____________________________

25

[Signature]

26
27 Executed On_______________

_____________________________

28

[Printed Name]
-30-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

EXHIBIT B
CERTIFICATION OF CONSULTANT RE SUPPLEMENTAL
PROTECTIVE ORDER GOVERNING CONFIDENTIAL INFORMATION
OF NON-PARTY QUALCOMM IN THIS CASE
I, _______________________________________ [print or type full name],
of _______________________________________ am not an employee of the Party
who retained me or of a competitor of any Party or Non-Party QUALCOMM and
will not use any information, documents, or things that are subject to the
Supplemental Protective Order Governing Discovery From Non-Party
QUALCOMM in _____________________ v. _____________________,Civil
Action No(s). _______________________________________ in the United States
District Court, Central District of California, for any purpose other than this
litigation. I agree not to perform hardware or software development work or
product development work intended for commercial purposes related to the
information disclosed in the Designated QUALCOMM Material, from the time of
receipt of such material through and including the date that I cease to have access to
any material designated “QUALCOMM – OUTSIDE ATTORNEYS’ EYES
ONLY” or “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
CONFIDENTIAL SOURCE CODE.”
I state under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.

22

_____________________________

23

[Signature]

24
25
26
27

Executed On_______________

_____________________________
[Printed Name]

28
-31-

[PROPOSED] SUPPLEMENTAL PROTECTIVE
ORDER FOR NON-PARTY QUALCOMM;
CASE NO. SACV14-341 JVS (DFMx)