CATR Co., Ltd. v. Kingston Technology Company, Inc

Filing 68

STIPULATED PROTECTIVE ORDER by Magistrate Judge Karen E. Scott, re Stipulation for Protective Order 64 . (twdb)

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Note changes made by the Court.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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10 PAVO SOLUTIONS, LLC

8:14-cv-1352-JLS (KESx)

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Hon. Josephine L. Staton

Plaintiff,

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v.

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STIPULATED PROTECTIVE
ORDER

14 KINGSTON TECHNOLOGY
COMPANY, INC.
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Defendant.
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STIPULATED PROTECTIVE ORDER

It is hereby stipulated by the parties that the Court enter the following Order

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protecting confidentiality of both party and non-party information to be disclosed in

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these litigations.

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1.

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

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

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

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prosecuting this litigation may be warranted. This Order does not confer blanket

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

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

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are entitled to confidential treatment under the applicable legal principles and Civil

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Local Rules. As set forth in Section 14.3 below, this Protective Order does by itself

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not entitle the Parties to file confidential information under seal; Civil Local Rule

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79-5 sets forth the procedures that must be followed and the standards that will be

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applied when a party seeks permission 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 constitute or

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include information that is not publicly known and that cannot be ascertained from

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an inspection of publicly available documents.

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2.3

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

Counsel (as well as their respective support staff).
2.4

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

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

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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STIPULATED PROTECTIVE ORDER

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2.5

Disclosure or Discovery Material: all items or information, regardless

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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 produced,

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disclosed or generated in disclosures, responses to discovery, or depositions in this

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matter.

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2.6

Expert: a person who (1) has been retained by a Party or its counsel to

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

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

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not anticipated to become an employee of a Party or of a Party’s competitor.

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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

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disclosure of which to another Party or Non-Party, even under the restricted terms

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and conditions applicable to material designated “CONFIDENTIAL,” would not

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adequately protect the interests of the Designating Party. Examples of HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY material include, but are not

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limited to, the following:

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A.

Confidential licenses and licensing terms;

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B.

Confidential sales, pricing, profit, and other financial
information;

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C.

forecasts;

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D.
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Employee personal information, to the extent such information is
produced and not redacted;

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Confidential technical information, including design, engineering
and development documents;

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Confidential business, marketing, and strategic plans and

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Trade Secrets; and

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STIPULATED PROTECTIVE ORDER

G.

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Any other type or category of information which a Producing

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Party believes must be held in highest level of confidence

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because it could otherwise create a competitive disadvantage.

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“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

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Items: “Confidential Information or Items” representing schematics, Hardware

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Description Language (HDL) or Register Transfer Level (RTL) files or computer

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code and associated comments and revision histories, the disclosure of which the

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Parties acknowledge would create a substantial risk of serious harm such that

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disclosure could not be avoided by less restrictive means (“Source Code”). For

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avoidance of doubt, Source Code includes, but is not limited to, source files,

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“include” files, make files, intermediate output files, executable files, header files,

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resource files, library files, module definition files, map files, object files, linker

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files, net lists, circuit schematics, browser info files, debug files, computer code,

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scripts, assembly, binaries and object code and other human-readable files used in

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the compilation of Source Code into a software program. The Receiving Party shall

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not attempt to build or compile the Source Code.

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2.9

House Counsel: attorneys who are employees of a Party or a related

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

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outside counsel.

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2.10 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party.
2.11 Outside Counsel of Record: attorneys who are not employees of a Party

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

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behalf of that Party or are affiliated with a law firm which has appeared on behalf of

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that Party.

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

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

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support staffs).

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STIPULATED PROTECTIVE ORDER

2.13 Producing Party: a Party or Non-Party that produces Disclosure or

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Discovery Material in this action.
2.14 Professional Vendors: persons or entities that provide litigation support

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

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

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and their employees and subcontractors.

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2.15 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 – SOURCE CODE.”
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.

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3.

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

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

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

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and (3) any testimony, conversations, or presentations by Parties or their Counsel

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that might reveal Protected Material. However, the protections conferred by this

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Order do not cover the following information: (a) any information that is in the

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public domain at the time of disclosure to a Receiving Party, including but not

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limited to (i) publicly available advertising materials, (ii) materials that have been

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published to the general public, or (iii) documents that have been submitted to any

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governmental entity without request for confidential treatment, or that becomes part

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

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

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

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

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

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obligation of confidentiality to the Designating Party. Nothing in this Order shall
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STIPULATED PROTECTIVE ORDER

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restrict in any way a Producing Party’s use or disclosure of its own Protected

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Material. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.

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4.

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

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

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

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

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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 time

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pursuant to applicable law. The Court will retain jurisdiction over disputes arising

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from this stipulated protective order for ninety (90) days after final disposition, as

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defined in the preceding sentence.

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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 it

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reasonably believes there is good cause to protect in accordance with the definitions

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and provisions of this Order. To the extent it is practical to do so, the Designating

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

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items, or oral or written communications that it reasonably believes qualify for

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

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

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

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

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other Parties that it is withdrawing the designation.

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STIPULATED PROTECTIVE ORDER

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5.2

Manner and Timing of Designations. Except as otherwise provided in

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

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

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

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produced.

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Designation in conformity with this Order requires:

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(a)

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

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

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

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

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CONFIDENTIAL – SOURCE CODE” to each page that contains Protected

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

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

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

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portion, the level of protection being asserted.

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If a Party or Non-Party identifies a set of documents that are better made

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available for inspection, the Party or Non-Party may make the original documents or

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materials available for inspection as they are kept in the ordinary course of business.

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The Party or Non-Party need not designate them for protection until after the

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

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

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for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’

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

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

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

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specified documents, the Producing Party must affix the appropriate legend

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

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STIPULATED PROTECTIVE ORDER

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE) as required by this

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Order.

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(b)

for testimony given in deposition or in other pretrial or trial

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

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

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

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

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

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invoke on the record (before the deposition, hearing, or other proceeding is

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concluded) a right to have up to 30 days from the time the final transcript is

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available to identify the specific portions of the testimony as to which protection is

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

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the testimony that are appropriately designated for protection within the 30 days

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shall be covered by the provisions of this Protective Order. Alternatively, a

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Designating Party may specify, at the deposition or up to 30 days afterwards if that

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period is properly invoked, that the entire transcript shall be treated as

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.” A Designating Party may also specify that portions of the deposition

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transcript be identified as containing “HIGHLY CONFIDENTIAL – SOURCE

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CODE.” In the event that the deposition is videotaped, the original and all copies of

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the videotape shall be marked by the video technician pursuant to the terms of this

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Protective Order to indicate that the contents of the videotape are subject to this

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Protective Order.

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

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

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other parties can ensure that only authorized individuals including those who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present

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at those proceedings. Counsel for the Producing Party shall have the right to exclude
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STIPULATED PROTECTIVE ORDER

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from oral depositions—other than the deponent, the deponent’s counsel, the reporter

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and the videographer (if any)—any person who is not authorized by this Protective

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Order to receive or access Protected Material based on the designation of such

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Protected Material. Such right of exclusion shall be applicable only during periods

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of examination or testimony regarding such Protected Material. The use of a

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

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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the

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

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

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

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

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requirements. Any transcript that is prepared before the expiration of the 30- day

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

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otherwise agreed. After the expiration of that period, the transcript shall be treated

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only as actually designated.

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(c)

for information produced in some form other than documentary and for

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

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

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

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

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

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

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protection being asserted.

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5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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designation of confidentiality at any time prior to the discovery cutoff date. Unless

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a prompt challenge to a Designating Party’s confidentiality designation is necessary

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to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a

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

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challenge a confidentiality designation by electing not to mount a challenge

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promptly after the original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute

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

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

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

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

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

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

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

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

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

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

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

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

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process only if (1) it has engaged in this meet and confer process first, or (2)

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

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confer process in a timely manner.

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6.3

Judicial Intervention. If the Parties cannot resolve a challenge without

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

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confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule

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79-5, if applicable) within 21 days of the initial notice of challenge or within 14

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

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dispute, whichever is later. In addition, the Challenging Party may file a motion

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challenging a confidentiality designation at any time after complying with the meet

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and confer requirements imposed in the preceding paragraph, including a challenge

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to the designation of a deposition transcript or any portions thereof. Any motion

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brought pursuant to this provision, whether by the Designating Party or Challenging

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Party, must be accompanied by a competent declaration affirming that the movant

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

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paragraph. Alternatively, the parties may stipulate to use the informal, telephonic

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procedure described on the court’s website.

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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. Unless the Designating Party has waived

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

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described above, all parties shall continue to afford the material in question the level

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of protection to which it is entitled under the Producing Party’s designation until the

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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 the

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conditions described in this Order. Nothing in this Order shall bar or otherwise
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STIPULATED PROTECTIVE ORDER

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restrict any attorney herein from rendering advice to his or her client with respect to

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this litigation; provided, however, that in rendering such advice and in otherwise

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communicating with his client, the attorney shall not make specific disclosure of any

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information or item of the Protected Material except as authorized by section 7.2.

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When the litigation has been terminated, a Receiving Party must comply with the

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provisions of section 15 below (FINAL DISPOSITION).

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

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

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authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless

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

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Receiving Party may disclose any information or item designated

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“CONFIDENTIAL” only to:

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(a)

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

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as employees of said Outside Counsel of Record to whom disclosure is reasonably

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necessary for this litigation;

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(b)

the officers, directors, and employees (including House Counsel) of the

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Receiving Party to whom disclosure is reasonably necessary for this litigation and

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

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(c)

Experts (as defined in this Order) of the Receiving Party (1) to whom

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disclosure is reasonably necessary for this litigation, (2) who have signed the

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

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the procedures set forth in paragraph 7.4, below, have been followed;

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(d)

the court and its personnel;

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(e)

court reporters and their staff, professional jury or trial consultants,

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interpreters or translators, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);
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STIPULATED PROTECTIVE ORDER

(f)

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during their depositions, witnesses in the action for the Designating

Party, the Producing Party and any party with knowledge about the document;
(g)

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the author or recipient appearing on the face of a document containing

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

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information; and

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(h)

any mediator who is assigned to hear this matter, and his or her staff.

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7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

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

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

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

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

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

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

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to disclose the information for this litigation;1
(b)

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

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

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

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paragraph 7.4, below, have been followed;

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(c)

the court and its personnel;

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(d)

court reporters and their staff, professional jury or trial consultants,

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interpreters or translators, and Professional Vendors to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A);
(e)

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during their depositions, witnesses in the action for the Designating

Party or the Producing Party (not the Receiving Party), including former employees

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This Order contemplates that House Counsel shall not have access to any information or items designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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STIPULATED PROTECTIVE ORDER

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whom Receiving Party has a good faith belief had access to the information during

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their employment with the Designating Party or the Producing Party;
(f)

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the author or recipients appearing on the face of a document containing

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

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information; and

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(g)

any mediator who is assigned to hear this matter, and his or her staff.

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7.4

Procedures for Approving or Objecting to Disclosure of

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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items

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to Experts.
(a)

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Unless otherwise ordered by the Court or agreed to in writing by the

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

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

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

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CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.2 or 7.3 first must

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make a written request to the Designating Party that (1) sets forth the full name of

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the Expert and the city and state of his or her primary residence, (2) attaches a copy

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of the Expert’s current resume and the “Acknowledgement and Agreement to be

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Bound,” (3) identifies the Expert’s current employer(s), (4) identifies each person or

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entity from whom the Expert has received compensation or funding for work in his

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or her areas of expertise or to whom the expert has provided professional services,

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including in connection with a litigation, at any time during the preceding five

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years,2 and (5) identifies (by name and number of the case, filing date, and location

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of court) any litigation in connection with which the Expert has offered expert

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If the Expert believes any of this information is subject to a confidentiality obligation to a Non-Party, then the Expert
should provide whatever information the Expert believes can be disclosed without violating any confidentiality
agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating
Party regarding any such engagement.

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testimony, including through a declaration, report, or testimony at a deposition or

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trial, during the preceding five years.
(b)

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A Party that makes a request and provides the information specified in

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the preceding respective paragraphs may disclose the subject Protected Material to

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the identified Expert unless, within 7 days of delivering the request, the Party

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

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set forth in detail the grounds on which it is based.
(c)

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

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

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

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is reached, the Party seeking to make the disclosure to the Expert may file a motion

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as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if

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applicable) seeking permission from the court to do so. Any such motion must

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

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

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

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reduce that risk. In addition, any such motion must be accompanied by a competent

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

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

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reasons advanced by the Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to the Expert shall bear

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the burden of proving that the risk of harm that the disclosure would entail (under

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

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Protected Material to its Expert.

25

8.

26

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

27

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

28

CONFIDENTIAL – SOURCE CODE” information shall not be involved in the
15
STIPULATED PROTECTIVE ORDER

1

prosecution of patents or patent applications relating to the subject matter of the

2

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

3

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

4

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

5

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

6

of this paragraph, “prosecution” includes directly or indirectly drafting, amending,

7

advising or otherwise affecting the scope or maintenance of patent claims. These

8

prohibitions, however, are not intended to and shall not preclude Counsel from

9

participating in reexamination, reissue proceedings, inter partes review proceedings,

10

or post-grant proceedings on behalf of a party challenging or defending the validity

11

of any patent so long as those activities do not involve directly or indirectly drafting

12

or amending the patent claims. This Prosecution Bar shall begin when access to

13

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

14

CONFIDENTIAL – SOURCE CODE” information is first received by the affected

15

individual and shall end one (1) year after final disposition of this action.

16

9.

17

SOURCE CODE
(a)

To the extent production of source code becomes necessary in this case,

18

a Producing Party may designate source code as “HIGHLY CONFIDENTIAL -

19

SOURCE CODE” if it comprises or includes confidential, proprietary or trade secret

20

source code.

21

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL –

22

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

23

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, including the

24

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

25

individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

26

information may be disclosed, as set forth in Paragraph 7.3.

27
28

(c)

Any Source Code produced in discovery shall be made available for

inspection as it is kept in the ordinary course of business (including but not limited
16
STIPULATED PROTECTIVE ORDER

1

to in native form and in the file-naming and directory structure in which it is

2

ordinarily kept), in a format allowing it to be reasonably reviewed and searched,

3

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

4

the Producing Party’s counsel or another mutually agreed upon location, or, in the

5

case of Non-Party Source Code, at a location designated by the Non-Party. Upon

6

initial inspection, the Receiving Party shall give at least ten (10) days prior written

7

notice of its intent to review Source Code. Written notices of subsequent inspections

8

shall be made at least three (3) business days prior to the intended start of the

9

review. The Source Code shall be made available for inspection in a secured room

10

(“Source Code Room”) on a secured computer without Internet access or network

11

access to other computers (“Source Code Computer”), and the Receiving Party shall

12

not copy, remove, or otherwise transfer any portion of the Source Code onto any

13

recordable media or recordable device. The Producing Party may designate a person

14

to periodically visually monitor the activities of the Receiving Party’s

15

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

16

unauthorized recording, copying, or transmission of the source code. The inspection

17

may not be monitored using mechanical, software or electronic means, including

18

video cameras, still cameras or keyloggers. The use of any laptop computer with a

19

camera that is enabled, input/output device, recordable media, or recordable device

20

(e.g., USB memory stick, CDs, portable hard drives, cameras (including cellular

21

phones with camera functionality), sound recorders, etc.) is prohibited while

22

accessing the Protected Code Computer, and no such devices or media shall be

23

permitted in the Source Code Room.

24

The Source Code Computer shall include software utilities that provide the

25

ability to (a) view, search, and identify the line number of any source file, (b) search

26

for a given pattern of text through multiple files, and (c) compare two files.

27

Acceptable software utilities for source code include Notepad++ and Eclipse.

28

Default Windows programs such as Notepad are not sufficient. Schematics shall be
17
STIPULATED PROTECTIVE ORDER

1

produced using the software used by the Producing Party to access the schematics

2

during the normal course of business. In addition to these tools, the Receiving Party

3

may request that commercially available software tools for reviewing and searching

4

Source Code be installed on the Source Code Computer, provided, however, that (a)

5

the Receiving Party possesses any appropriate license to such software tools which

6

may be transferred to the Producing Party for the purposes of the inspection, or

7

reimburses the Producing Party for the costs to obtain a license to such software

8

tools; (b) the Producing Party approves such software tools (such approval shall not

9

be unreasonably withheld); (c) the Receiving Party provides the Producing Party

10

with written justification as to why such other software tools are reasonably

11

necessary for the Receiving Party to perform its review of the Source Code

12

consistent with all of the protections herein; and (d) the request to install the

13

software tools is made at least five (5) business days in advance of the date upon

14

which the Receiving Party wishes to have the additional software tools available for

15

use on the Source Code Computer. To the extent only the Receiving Party possesses

16

or has access to the software tools, the Receiving Party must provide the Producing

17

Party with the licensed software tool(s) at least five (5) business days in advance of

18

the date upon which the Receiving Party wishes to have the additional software

19

tools available for use on the Source Code Computer if the Producing Party does not

20

object to such installation. If the Producing Party objects to a software tool

21

requested by the Receiving Party, it shall, within five (5) business days of receiving

22

the Receiving Party’s request, initiate the dispute resolution process set forth in

23

Paragraph 6. For emphasis, it should be noted that Source Code review tools may

24

not be used to circumvent the protections of this Protective Order in any way. The

25

electronic Source Code shall be produced in a manner that preserves filenames and

26

directory structures.

27
28

The Receiving Party’s Outside Counsel of Record and/or Experts shall be
entitled to take notes relating to the Source Code, including on a laptop computer if
18
STIPULATED PROTECTIVE ORDER

1

the laptop’s camera and all other recording functions are turned off or disabled, but

2

may not copy the Source Code into their notes. Any notes relating to the Source

3

Code shall be subject to all of the restrictions of the “HIGHLY CONFIDENTIAL –

4

SOURCE CODE” designation. The inadvertent leaving of materials in the Source

5

Code Room does not operate as a waiver of the attorney work product doctrine or

6

any other applicable privilege and such materials shall be returned to their owner

7

promptly. No copies of all or any portion of the Source Code may leave the Source

8

Code Room except as otherwise provided in this Protective Order. Further, no other

9

written or electronic record of the Source Code is permitted except as otherwise

10
11

provided in this Protective Order.
(d)

During or after a Source Code inspection, the Receiving Party may

12

request that the Producing Party print specified portions of the Source Code that are

13

reasonably necessary for the preparation of court filings, pleadings, expert reports,

14

or other papers, or for deposition or trial, but shall not request paper copies for the

15

purpose of reviewing the Source Code other than electronically as set forth in

16

paragraph (c) in the first instance. Should the Producing Party believe the requested

17

number or content of the printouts is excessive, the parties shall meet and confer

18

regarding the request. If the concerns cannot be resolved, the Producing Party shall

19

file for a protective order within 10 business days of raising its objection. Unless it

20

objects to the request, within three (3) business days of receiving a request for paper

21

copies of Source Code from the Receiving Party, the Producing Party shall provide

22

the requested portions of Source Code in paper form to the Receiving Party, with

23

bates numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.” If

24

the Producing Party objects to the amount of Source Code requested by the

25

Receiving Party in paper form, it shall, within three (3) business days of receiving

26

the Receiving Party’s request, initiate the dispute resolution process set forth in

27

Paragraph 6.

28

19
STIPULATED PROTECTIVE ORDER

(e)

1

The Receiving Party shall maintain a record of the address where each

2

paper copy of the Source Code is kept or moved and the name of each person with

3

access to each paper copy of the Source Code at the provided address. The

4

Receiving Party shall further maintain a record indicating any individual who has

5

inspected any portion of the Source Code in electronic or paper form. The Receiving

6

Party shall maintain all paper copies of any printed portions of the Source Code in a

7

secured, locked area when not in immediate use. In addition, the Receiving Party

8

may ship paper copies of printed portions of the Source Code via a secure courier

9

delivery service, signature required (e.g. Federal Express) to persons authorized to

10

access same under this Protective Order, who shall also maintain all paper copies of

11

any printed portions of the Source Code in a secured, locked area when not in

12

immediate use. The Receiving Party shall not create any electronic or other images

13

of the paper copies and shall not convert any of the information contained in the

14

paper copies into any electronic format, except small excerpts thereof reasonably

15

necessary for court filings, expert reports, discovery responses and other similar

16

documents. All such documents shall be clearly marked “HIGHLY

17

CONFIDENTIAL – SOURCE CODE” and, if filed, shall be filed under seal. The

18

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

19

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

20

expert reports), (2) necessary for deposition, or (3) otherwise necessary for the

21

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

22

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

23

court reporter or any other unauthorized individual.

24

10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

25

IN OTHER LITIGATION

26

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

27
28

that compels disclosure of any information or items designated in this action as
20
STIPULATED PROTECTIVE ORDER

1

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

2

ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE,” that Party must:
(a)

3
4

promptly notify in writing the Designating Party. Such notification

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

5

promptly notify in writing the party who caused the subpoena or order

6

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

7

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

8

a copy of this Protective Order; and
(c)

9
10

cooperate with respect to all reasonable procedures sought to be

pursued by the Designating Party whose Protected Material may be affected.3
If the Designating Party timely seeks a protective order, the Party served with

11
12

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

13

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

14

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

15

determination by the court from which the subpoena or order issued, unless the

16

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

17

bear the burden and expense of seeking protection in that court of its confidential

18

material – and nothing in these provisions should be construed as authorizing or

19

encouraging a Receiving Party in this action to disobey a lawful directive from

20

another court.

21

11.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

22

PRODUCED IN THIS LITIGATION

23

(a)

The terms of this Order are applicable to information produced by a

24

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

25

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY

26

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

27

3

28

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

STIPULATED PROTECTIVE ORDER

1

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

2

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

3

Party from seeking additional protections.
(b)

4

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

5

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

6

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

7

confidential information, then the Party shall:
1.

8
9

promptly notify in writing the Requesting Party and the Non-

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

10

agreement with a Non-Party;

11

2.

promptly provide the Non-Party with a copy of the Protective

12

Order in this litigation, the relevant discovery request(s), and a reasonably specific

13

description of the information requested; and
3.

14
15

make the information requested available for inspection by the

Non-Party.
(c)

16

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

17

court within 14 days of receiving the notice and accompanying information, the

18

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

19

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

20

Receiving Party shall not produce any information in its possession or control that is

21

subject to the confidentiality agreement with the Non-Party before a determination

22

by the court.4 Absent a court order to the contrary, the Non-Party shall bear the

23

burden and expense of seeking protection in this court of its Protected Material.

24

12.

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

25
26

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

Protected Material to any person or in any circumstance not authorized under this

27
28

4

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

22

STIPULATED PROTECTIVE ORDER

1

Protective Order, the Receiving Party must immediately (a) notify in writing the

2

Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve

3

all unauthorized copies of the Protected Material, (c) inform the person or persons to

4

whom unauthorized disclosures were made of all the terms of this Order, and (d)

5

request that such person or persons execute the “Acknowledgment and Agreement

6

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

7

13.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

8

PROTECTED MATERIAL

9

Inadvertent or unintentional production of “CONFIDENTIAL,” “HIGHLY

10

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY

11

CONFIDENTIAL – SOURCE CODE” documents or information without such

12

designations shall not be deemed a waiver in whole or in part of a claim for

13

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

14

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If, through

15

inadvertence, a Producing Party provides any information pursuant to this litigation

16

without marking the information as “CONFIDENTIAL,” “HIGHLY

17

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY

18

CONFIDENTIAL – SOURCE CODE” the Producing Party may subsequently

19

inform the Receiving Party of the specific designation of the disclosed information,

20

and the Receiving Party shall treat the disclosed information as

21

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

22

ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information upon

23

receipt of written notice from the Producing Party. To the extent the Receiving Party

24

has already disclosed such information, the Receiving Party shall use its best efforts

25

to promptly collect any copies of disclosed material that have been provided to

26

individuals other than those authorized under this Protective Order, and if collected,

27

shall destroy or return them to the Producing Party.

28

23
STIPULATED PROTECTIVE ORDER

If a Producing Party inadvertently produces a document, tangible item or

1
2

electronically stored information that it later discovers or in good faith asserts to be

3

privileged, protected by the work product doctrine, or subject to some other

4

immunity from disclosure (“Privileged Material”) the production of that Privileged

5

Material shall not be deemed to constitute a waiver of any applicable privileges,

6

work product protection, or immunity from disclosure. In such circumstances, upon

7

discovery of the inadvertent disclosure, the Producing Party shall immediately

8

notify the Receiving Party of the inadvertent production, and request either the

9

return or confirmation of destruction of the Privileged Materials. Within five (5)

10

business days of receiving such notification, the Receiving Party shall return or

11

confirm destruction of all such materials. Such return or confirmation of destruction

12

shall not preclude the Receiving Party from seeking to compel production of the

13

materials (based on information independent of the content of the returned, allegedly

14

privileged materials in question) and shall not constitute an admission by the

15

Receiving Party that the materials were, in fact, privileged or otherwise protected in

16

any way. The Producing Party shall retain the Privileged Material for submission to

17

the Court in the event the Receiving Party moves to compel.

18

14.

19
20

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

person to seek its modification by the court in the future.

21

14.2 Right to Assert Other Objections. No Party waives any right it

22

otherwise would have to object to disclosing or producing any information or item

23

on any ground not addressed in this Protective Order. Similarly, no Party waives any

24

right to object on any ground to use in evidence of any of the material covered by

25

this Protective Order.

26

14.3 Filing Protected Material. Without written permission from the

27

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

28

persons, a Party may not file in the public record in this action any Protected
24
STIPULATED PROTECTIVE ORDER

1

Material. In order to be treated as confidential, any unredacted Protected Materials

2

filed with the Court must be lodged with a request for filing under seal in

3

compliance with Civil Local Rule 79-5.

4

15.

FINAL DISPOSITION

5

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

6

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

7

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

8

Material” includes all copies, abstracts, compilations, summaries, and any other

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

Material. Notwithstanding this provision, Counsel are entitled to retain an archival

17

copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal

18

memoranda, correspondence, deposition and trial exhibits, expert reports, attorney

19

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

20

contain Protected Material. Outside Counsel of Record need not purge its document

21

management system or backup tapes to eliminate Protected Material. Any such

22

archival copies that contain or constitute Protected Material remain subject to this

23

Protective Order as set forth in Section 4 (DURATION).

24
25

IT IS SO ORDERED.

26
27
28

DATED: April 11, 2018
Hon. Karen E. Scott
United States Magistrate Judge
25
STIPULATED PROTECTIVE ORDER

1
2
3

DATED: April 5, 2018

4
5
6

/s/ David M. Hoffman
Christine Yang
David M. Hoffman (pro hac vice)
Maria Elena Stiteler
Attorneys for Defendant
KINGSTON TECHNOLOGY
COMPANY, INC.

7
8
9
10
11
12
13

DATED: April 5, 2018

/s/ Benjamin T. Wang
Benjamin T. Wang
Minna Y. Chan
Attorneys for Plaintiff
PAVO SOLUTIONS, LLC

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

26
STIPULATED PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
I,

4

[print or type full name], of
[print or type full address], declare under penalty of

5
6

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

7

issued by the United States District Court for the Central District of California on
[date] in Pavo Solutions, LLC v. Kingston Technology Company,

8
9

Inc., Case No. 8:14-cv-1352 (C.D. Cal). I agree to comply with and to be bound by

10

all the terms of this Protective Order, and I understand and acknowledge that failure

11

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

12

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

13

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

14

compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court

15
16

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

17

Protective Order, even if such enforcement proceedings occur after termination of

18

this action.

19
20

Date:

21

City and State where sworn and signed:

22
23

Printed name:
[printed name]

24
25
26
27
28

Signature:
[signatur

1
STIPULATED PROTECTIVE ORDER