Netlist, Inc, v. SK Hynix Inc. et al

Filing 108

PROTECTIVE ORDER by Magistrate Judge Jay C. Gandhi re Stipulation for Protective Order 99 . (kh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 Netlist, Inc., 13 14 15 16 Plaintiff and Counterclaim-Defendant, vs. SK hynix Inc., Defendant and Counterclaim-Plaintiff, 17 18 19 20 21 22 23 24 25 26 27 28 and SK hynix America Inc. and SK hynix memory solutions Inc., Defendants. ) No. 8:16-cv-01605-JLS-JCG ) ) ) ) ) ) PROTECTIVE ORDER ) ) ) ) ) ) ) ) ) ) ) ) 1 PROTECTIVE ORDER 2 WHEREAS, documents and information may be sought, produced or exhibited 3 by and among the parties to the above captioned proceeding, which materials relate to 4 trade secrets or other confidential research, development or commercial information, 5 pursuant to Federal Rule of Civil Procedure 26(c)(1)(G); 6 IT IS HEREBY ORDERED THAT: 7 1. Confidential business information is information which concerns or 8 relates to the trade secrets, processes, operations, style of work, or apparatus, or to the 9 production, sales, shipments, purchases, transfers, identification of customers, 10 inventories, amount or source of any income, profits, losses, or expenditures of any 11 person, firm, partnership, corporation, or other organization, or other information of 12 commercial value, the disclosure of which is likely to have the effect of either (i) 13 impairing the Court’s ability to obtain such information as is necessary to adjudicate 14 the claims and defenses in this action; or (ii) causing substantial harm to the 15 competitive position of the person, firm, partnership, corporation, or other 16 organization from which the information was obtained, unless the Court is required 17 by law to disclose such information. 18 2(a). Any information submitted in pre-hearing discovery or in a pleading, 19 motion, or response to a motion either voluntarily or pursuant to order, in this case, 20 which is asserted by a supplier to contain or constitute confidential business 21 information shall be so designated by such supplier in writing, or orally at a 22 deposition, conference or hearing, and shall be segregated from other information 23 being submitted. Documents shall be clearly and prominently marked on their face 24 with the legend: “CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO 25 PROTECTIVE ORDER,” or a comparable notice. 26 submitted in writing or in oral testimony, shall be treated in accordance with the 27 terms of this protective order. Such information, whether 28 -1PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 (b). The Court may determine that information alleged to be confidential is 2 not confidential, or that its disclosure is necessary for the proper disposition of the 3 proceeding, before, during or after the close of a hearing herein. 4 determination is made by the Court, opportunity shall be provided to the supplier of 5 such information to argue its confidentiality prior to the time of such ruling. 6 3. If such a In the absence of written permission from the supplier or an order by the 7 Court, any confidential documents or business information submitted in accordance 8 with the provisions of paragraph 2 above shall not be disclosed to any person other 9 than: (i) outside counsel for parties to this case, including necessary secretarial and 10 support personnel assisting such counsel; (ii) qualified persons taking testimony 11 involving such documents or information and necessary stenographic and clerical 12 personnel thereof; (iii) technical experts and their staff who are employed for the 13 purposes of this litigation (unless they are otherwise employed by, consultants to, or 14 otherwise affiliated with a non-governmental party, or are employees of any domestic 15 or foreign manufacturer, wholesaler, retailer, or distributor of the products, devices or 16 component parts which are the subject of this case); (iv) the Court and the Court’s 17 staff; (v) employees and contract personnel of the U.S. District Court for the Central 18 District of California (a) for developing or maintaining the records of this case or 19 related proceedings, or (b) in internal investigations, audits, reviews, evaluations 20 relating to the programs, personnel, and operations of the Court; and (vi) U.S. 21 government employees and contract personnel, solely for cybersecurity purposes. 22 4. Confidential business information submitted in accordance with the 23 provisions of paragraph 2 above shall not be made available to any person designated 24 in paragraph 3(i)1 and (iii) unless he or she shall have first read this order and shall 25 have agreed, by letter served on the supplier: (i) to be bound by the terms thereof; (ii) 26 27 28 1 Necessary secretarial and support personnel assisting counsel need not sign onto the protective order themselves because they are covered by counsel’s signing onto the protective order. -2PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 not to reveal such confidential business information to anyone other than another 2 person designated in paragraph 3; and (iii) to utilize such confidential business 3 information solely for purposes of this case. 4 following acknowledgement: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The letter shall also include the I, the undersigned, on behalf of , acknowledge that information submitted for purposes of this case may be disclosed to and used: (i) by the Court, its employees, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Court; or (ii) by U.S. government employees and contract personnel, solely for cybersecurity purposes. I understand that all contract personnel will sign appropriate nondisclosure agreements. 5. If the Court orders, or if the supplier and all parties to the case agree, that access to, or dissemination of information submitted as, confidential business information shall be made to persons not included in paragraph 3 above, such matter shall only be accessible to, or disseminated to, such persons based upon the conditions pertaining to, and obligations arising from this order, and such persons shall be considered subject to it, unless the Court finds that the information is not confidential business information as defined in paragraph 1 thereof. 6(a). Any confidential business information submitted to the Court in connection with a motion or other proceeding within the purview of this case shall be submitted under seal pursuant to paragraph 2 above and C.D. Cal. Civil L.R. 79-5. Any portion of a transcript in connection with this case containing any confidential business information submitted pursuant to paragraph 2 above shall be bound separately and filed under seal. When any confidential business information submitted in accordance with paragraph 2 above is included in an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter taking the deposition to bind such confidential portions and separately label them “CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER.” Before a court reporter or translator receives any such -3PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 information, he or she shall have first read this order and shall have agreed in writing 2 to be bound by the terms thereof. Alternatively, he or she shall sign the agreement 3 included as Attachment A hereto. Copies of each such signed agreement shall be 4 provided to the supplier of such confidential business information. 5 (b). Submitters2 are strongly encouraged to encrypt nonpublic documents 6 that are electronically transmitted to the Court to protect sensitive information from 7 unauthorized disclosure. 8 7. The restrictions upon, and obligations accruing to, persons who become 9 subject to this order shall not apply to any information submitted in accordance with 10 paragraph 2 above to which the person asserting the confidential status thereof agrees 11 in writing, or the Court rules, after an opportunity for hearing, was publicly known at 12 the time it was supplied to the receiving party or has since become publicly known 13 through no fault of the receiving party. 14 8. The Court acknowledges that any document or information submitted as 15 confidential business information pursuant to paragraph 2 above and C.D. Cal. Civil 16 L.R. 79-5 is to be treated as such, subject to a contrary ruling, after hearing, by the 17 Court. The party offering the confidential business information must, upon request or 18 as required by C.D. Cal. Civil L.R. 79-5, provide a statement as to the claimed basis 19 for its confidentiality. 20 9. Unless a designation of confidentiality has been withdrawn, or a 21 determination has been made by the Court that information designated as 22 confidential, is no longer confidential, the Court shall take all necessary and proper 23 steps to preserve the confidentiality of, and to protect each supplier’s rights with 24 respect to, any confidential business information designated by the supplier in 25 accordance with paragraph 2 above, including, without limitation: (a) notifying the 26 supplier promptly of any proposal to redesignate or make public any such 27 2 28 “Submitters” of confidential business information are the same as “suppliers” of confidential business information as that term is used in the context of this Order. -4PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 confidential business information; and (b) providing the supplier at least seven days 2 after receipt of such inquiry or request within which to take action before the Court, 3 or otherwise to preserve the confidentiality of and to protect its rights in, and to, such 4 confidential business information. 5 10. If while a case is before the Court, a party to this order who is to be a 6 recipient of any business information designated as confidential and submitted in 7 accordance with paragraph 2 disagrees with respect to such a designation, in full or in 8 part, it shall notify the supplier in writing, and they will thereupon confer as to the 9 status of the subject information proffered within the context of this order. If prior to, 10 or at the time of such a conference, the supplier withdraws its designation of such 11 information as being subject to this order, but nonetheless submits such information 12 for purposes of the case; such supplier shall express the withdrawal, in writing, and 13 serve such withdrawal upon all parties and the Court. If the recipient and supplier are 14 unable to concur upon the status of the subject information submitted as confidential 15 business information within ten days from the date of notification of such 16 disagreement, any party to this order may raise the issue of the designation of such a 17 status to the Court which will rule upon the matter. The Court may sua sponte 18 question the designation of the confidential status of any information and, after 19 opportunity for hearing, may remove the confidentiality designation. 20 11. No less than 10 days (or any other period of time designated by the 21 Court) prior to the initial disclosure to a proposed expert of any confidential 22 information submitted in accordance with paragraph 2, the party proposing to use 23 such expert shall submit in writing the name of such proposed expert and his or her 24 educational and detailed employment history to the supplier. If the supplier objects 25 to the disclosure of such confidential business information to such proposed expert as 26 inconsistent with the language or intent of this order or on other grounds, it shall 27 notify the recipient in writing of its objection and the grounds therefore prior to the 28 initial disclosure. If the dispute is not resolved on an informal basis within ten days -5PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 of receipt of such notice of objections, the supplier shall submit immediately each 2 objection to the Court for a ruling. The submission of such confidential business 3 information to such proposed expert shall be withheld pending the ruling of the 4 Court. 5 12. If confidential business information submitted in accordance with 6 paragraph 2 is disclosed to any person other than in the manner authorized by this 7 protective order, the party responsible for the disclosure must immediately bring all 8 pertinent facts relating to such disclosure to the attention of the supplier and, without 9 prejudice to other rights and remedies of the supplier, make every effort to prevent 10 further disclosure by it or by the person who was the recipient of such information. 11 13. [Intentionally omitted] 12 14. Upon final resolution of this case, each recipient of confidential business 13 information that is subject to this order shall assemble and return to the supplier all 14 items containing such information submitted in accordance with paragraph 2 above, 15 including all copies of such matter which may have been made. Alternatively, the 16 parties subject to this order may, with the written consent of the supplier, destroy all 17 items containing confidential business information and certify to the supplier (or his 18 counsel) that such destruction has taken place. This paragraph shall not apply to the 19 Court to the extent it must retain such material pursuant to statutory requirements and 20 for other recordkeeping purposes. 21 destruction of those additional copies in the Court’s possession which it regards as 22 surplusage. 23 15. Nothing in this paragraph shall preclude the If any confidential business information which is supplied in accordance 24 with paragraph 2 above is supplied by a nonparty to this case, such a nonparty shall 25 be considered a “supplier” as that term is used in the context of this order. 26 27 28 16. Each nonparty supplier shall be provided a copy of this order by the party seeking information from said supplier. 17. [Intentionally omitted] -6PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 18. Source Code. A supplier may designate documents, information, or 2 things as “CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY 3 INFORMATION,” which shall mean litigation material of a supplier (a supplier may 4 be (i) a party producing its information or the information of a third-party in its 5 possession or (ii) a third-party producing its information) that constitutes or contains 6 non-public Source Code. 7 A. “Source Code” means computer code, scripts, assembly, object code, 8 source code listings and descriptions of source code, object code listings and 9 descriptions of object code, or other electronic files used in network operations, 10 comments for source code or network operation files, or revision histories, as well as 11 Register Transfer Level, Hardware Description Language, VHDL, Verilog, or digital 12 signal processor (DSP) programming files. For clarity, Source Code filenames and 13 directory structures are not Source Code within the meaning of this definition, but 14 shall be treated as CONFIDENTIAL BUSINESS INFORMATION – SUBJECT TO 15 PROTECTIVE ORDER. The inclusion of protective provisions for source code does 16 not represent a requirement that source code be produced and adds no obligation of 17 production on the Parties or third-parties beyond that already imposed by the Federal 18 Rules. 19 B. Materials designated as “CONFIDENTIAL SOURCE CODE- 20 ATTORNEYS’ EYES ONLY INFORMATION,” shall only be reviewable by 21 SOURCE CODE QUALIFIED PERSONS. SOURCE CODE QUALIFIED 22 PERSONS include the following: (1) outside litigation counsel as necessarily incident 23 to the litigation of this case; (2) staff employed by such outside litigation counsel who 24 are necessarily incident to the litigation of this case, and any copying or clerical 25 litigation support services working at the direction of such counsel, paralegals, and 26 staff; (3) outside vendors retained for the purpose of preparing graphics or 27 presentations for use as a demonstrative in a brief or other form of submission or 28 proceeding incident to this case; (4) personnel at interpretation/translation service -7PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 establishments retained by, but not regularly employed by, outside litigation counsel 2 as necessarily incident to the litigation of this case, including without limitation oral 3 interpreters and document translators; (5) the Court, Court personnel and contract 4 personnel who are acting in the capacity of Court employees as indicated in paragraph 5 3 of this Protective Order; (6) court reporters, stenographers and videographers 6 transcribing or recording testimony at depositions, hearings or trial in this case; and 7 (7) qualified consultants and/or qualified experts in this case (under paragraph 11 of 8 the Protective Order in this case). Qualified consultants and/or qualified experts may 9 only review CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY 10 INFORMATION after being expressly identified to the supplier as seeking access to 11 CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY INFORMATION. 12 If the receiving party wishes an already identified qualified consultant or qualified 13 expert to receive CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY 14 INFORMATION, it must re-comply with the provisions of paragraph 11 of this 15 Protective Order in this case, including allowing the supplier an opportunity to object 16 to this qualified consultant or qualified expert receiving CONFIDENTIAL SOURCE 17 CODE-ATTORNEYS’ EYES ONLY INFORMATION, and identifying the proposed 18 qualified consultant or qualified expert as seeking access to CONFIDENTIAL 19 SOURCE CODE-ATTORNEYS’ EYES ONLY INFORMATION. 20 C. To the extent a supplier makes Source Code available for inspection, it 21 shall be made available for inspection in electronic format in, at the supplier’s sole 22 election, the offices of its outside litigation counsel, its facilities where the Source 23 Code is maintained or a facility in the city where either its outside litigation counsel is 24 located or its facilities where the Source Code is maintained is located, provided that 25 any such location is within the continental United States (hereinafter “the Designated 26 Location”). 27 28 D. To the extent a supplier makes Source Code available for inspection, that supplier’s Source Code shall be made available for inspection in electronic format, -8PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 following written notice from the party requesting to inspect the Source Code at least 2 eight (8) business days prior to the first inspection and two business days prior to 3 subsequent inspections, at the Designated Location, between the hours of 9 a.m. and 5 4 p.m. on business days (i.e., weekdays that are not Federal holidays). Nothing in this 5 paragraph shall preclude the supplier and the receiving party from agreeing to 6 (1) shorten the notice periods prior to subsequent inspections, and (2) extend the hours 7 of inspection on business days. 8 9 E. To the extent a supplier makes Source Code that is designated “CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY 10 INFORMATION” available for inspection and review, said inspection and review 11 shall be subject to the following provisions, unless otherwise agreed by the supplier: 12 a. All Source Code shall be made available by the supplier to the 13 reviewing party’s outside counsel and/or experts in a secure room on a 14 standalone computer without Internet access or network access to other 15 computers, as necessary and appropriate to prevent and protect against any 16 unauthorized copying, transmission, removal or other transfer of any Source 17 Code outside or away from the computer on which the Source Code is provided 18 for inspection (the “Source Code Computer” in the “Source Code Review 19 Room”). The supplier shall install tools that are sufficient for viewing and 20 searching the code produced, on the platform produced, if such tools exist and 21 are presently used in the ordinary course of the supplier’s business. The 22 receiving party’s outside counsel and/or experts may request that additional 23 commercially available software tools for viewing and searching Source Code 24 be installed on the computer, provided, however, that: (a) the receiving party or 25 the supplier possesses an appropriate license to such software tools; (b) the 26 supplier approves such software tools, and the supplier’s consent will not be 27 unreasonably withheld; and (c) such other software tools are reasonably 28 necessary for the receiving party to perform its review of the Source Code -9PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 consistent with all of the protections herein. The receiving party must provide 2 the supplier with the CD or DVD containing such licensed software tool(s) or 3 an appropriate license for downloadable tools at least seven (7) days in advance 4 of the date upon which the receiving party wishes to conduct its first inspection 5 of the Source Code Computer. The receiving party cannot request any 6 additional viewing tools after its first inspection of the Source Code Computer 7 unless such additional tools are reasonably necessary to complete the inspection 8 of the Source Code Computer. 9 b. Other than those devices provided by the protective order, no other 10 recording devices or recordable media will be permitted inside the source code 11 review room, including without limitation: sound recorders; computers; cellular 12 phones; peripheral equipment; cameras; CDs; DVDs; floppy drives, zip drives, 13 thumb drives, or external drives of any kind; USB memory sticks; portable hard 14 drives; Ethernet or other cables that could be used to transfer data off of a 15 Source Code Computer; Dictaphones; telephone jacks; or smartphones of any 16 kind (including but not limited to BlackBerry, iPhone, or Android devices). Nor 17 shall any non-electronic devices capable of similar functionality be permitted 18 inside the Source Code Review Room. 19 c. The receiving party’s outside counsel and/or experts shall be 20 entitled to take handwritten notes relating to the Source Code. The receiving 21 party’s outside counsel and/or experts may not copy portions of the Source 22 Code (e.g., entire source code files or entire functions or methods where such 23 functions or methods are longer than a few lines) into the notes and may not 24 take such notes electronically on the Source Code Computer itself or on any 25 computer that is connected to any network. 26 d. No copies of all or any portion of the Source Code may leave the 27 room in which the Source Code is inspected except as otherwise provided 28 herein. No written or electronic record of the Source Code is permitted except -10PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 as otherwise provided herein. The supplier shall provide to the receiving party 2 one (1) copy on Bates-numbered paper, labeled “CONFIDENTIAL SOURCE 3 CODE-ATTORNEYS’ EYES ONLY INFORMATION,” within three (3) days 4 of the receiving party’s designation of the portions of the Source Code to be 5 printed. The receiving party shall not designate Source Code to be printed in 6 order to review blocks of Source Code in the first instance, i.e., as an alternative 7 to reviewing that Source Code electronically on the Source Code Computer. 8 The receiving party may print only those portions of the Source Code that are 9 reasonably necessary to prepare court filings, pleadings, contentions, expert 10 reports or other papers. The supplier may object to any request to deliver 11 copies of printed Source Code as excessive and/or not done for a permitted 12 purpose. If such objection cannot be resolved by mutual agreement within five 13 (5) business days it shall be submitted to the Court for resolution. The burden 14 shall be on the receiving party to demonstrate that such printed portion of the 15 Source Code was no more than is reasonably necessary for a permitted purpose 16 and not merely printed for the purpose of review and analysis elsewhere. In the 17 event the request is more than 20 continuous pages, and the parties are unable to 18 resolve the supplier’s objection via meeting and conferring, then at the 19 supplier’s discretion, no portion of the printed Source Code in question need be 20 delivered to counsel for the receiving party until the issue is resolved by the 21 Court. In the event the objection to print 20 continuous pages or less is 22 sustained by the Court, the pages that were subject to the objections shall be 23 returned to the supplier within two (2) business days. 24 e. The receiving party agrees to avoid including copies or portions of 25 the supplier’s Source Code in any Court filing, pleading, or other paper, except 26 as otherwise provided in this Protective Order. 27 28 f. The receiving party will not copy, remove, or otherwise transfer any Source Code from the Source Code Computer including, without limitation, -11PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 copying, photographing, removing, or transferring the Source Code onto any 2 recordable media or recordable device. 3 g. All persons viewing Source Code shall sign a log on each day they 4 view Source Code that will include the names of persons who enter the locked 5 room to view the Source Code and when they enter and depart. The log shall 6 remain at the Source Code review location. 7 h. The receiving party’s outside counsel of record may make no more 8 than five (5) paper copies of any printed portions of the Source Code from a 9 supplier, not including copies attached to court filings, expert reports, 10 infringement contentions, or exhibits used at depositions or at trial, and shall 11 maintain a log of all paper copies of the Source Code. The log shall include the 12 names of the reviewers and/or recipients of paper copies and locations where 13 the paper copies are stored. The supplier shall be entitled to review the log after 14 the case has ended or by Court order upon a showing of good cause. 15 i. The receiving party’s outside counsel of record and any person 16 receiving a copy of any Source Code shall maintain and store any paper copies 17 of the Source Code at their offices in a manner that reasonably prevents 18 duplication of or unauthorized access to the Source Code, including, without 19 limitation, storing the Source Code in a locked room or cabinet at all times 20 when it is not in use. Any paper copies of such Source Code shall be designated 21 “CONFIDENTIAL SOURCE CODE-ATTORNEYS’ EYES ONLY 22 INFORMATION.” 23 j. Copies of Source Code that are marked as deposition exhibits may 24 be provided to the court reporter or attached to deposition transcripts, subject to 25 the Protective Order. All paper copies of Source Code brought to a deposition 26 but not marked as a deposition exhibit shall be securely destroyed in a timely 27 manner following the deposition. 28 -12PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG 1 Attachment A 2 NONDISCLOSURE AGREEMENT FOR 3 REPORTER/STENOGRAPHER/TRANSLATOR 4 5 I, , do solemnly swear or affirm that I will 6 not divulge any information communicated to me in any confidential portion of the 7 case Netlist, Inc. v. SK hynix Inc. et al., No. 8:16-cv-01605-JLS-JCG (C.D. Cal. filed 8 Aug. 31, 2016), except as permitted in the protective order issued in this case. I will 9 not directly or indirectly use, or allow the use of such information for any purpose 10 other than that directly associated with my official duties in this case. 11 Further, I will not by direct action, discussion, recommendation, or suggestion 12 to any person reveal the nature or content of any information communicated during 13 any confidential portion of the case or hearing in this case. 14 15 I also affirm that I do not hold any position or official relationship with any of the participants in said case. 16 I am aware that the unauthorized use or conveyance of information as specified 17 above is a violation of the Federal Criminal Code and punishable by a fine of up to 18 $10,000, imprisonment of up to ten (10) years, or both. 19 20 21 Signed 22 23 Dated 24 25 Firm or affiliation 26 27 28 -14PROTECTIVE ORDER — No. 8:16-cv-01605-JLS-JCG

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