Power Analytics Corporation v. Operation Technology, Inc. et al

Filing 287

PROTECTIVE ORDER After Hearing by Magistrate Judge Frederick F. Mumm: GRANTED. (see document for further details) (klg)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION 7 8 9 POWER ANALYTICS 10 CORPORATION, 11 12 13 Plaintiff, v. Case No. 8:16-cv-01955-JAK (FFMx) PROTECTIVE ORDER AFTER HEARING OPERATION TECHNOLOGY, INC., 14 d/b/a ETAP, OSISOFT LLC, and 15 16 SCHNEIDER ELECTRIC USA, INC., Defendants. 17 18 19 Having reviewed the submissions of the parties, the Court enters the following protective order to cover discovery in these proceedings: 20 21 22 23 24 25 To expedite the flow of discovery material, to facilitate the prompt resolution of disputes regarding the over-designated confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that only materials the parties are entitled to keep 26 confidential are subject to such treatment, and to ensure that the parties are 27 permitted reasonably necessary uses of such materials in preparation for and in the 28 conduct of trial, pursuant to Fed. R. Civ. P. 26(c), it is hereby ORDERED THAT 1 INFORMATION SUBJECT TO THIS ORDER 2 1. For purposes of this Protective Order (“Order”), “CONFIDENTIAL” 3 information shall mean all non-public information, material, documents, or 4 electronically stored information that is produced for or disclosed, either through 5 the formal discovery process, with a pleading or motion, or informally in this 6 litigation; that has been disclosed to a party that requests or receives Protected 7 Material (a “Receiving Party”); and the party that possesses, owns, or otherwise 8 controls the Protected Material requested by the Receiving Party (a “Producing 9 Party”), including any party to this action and any non-party producing 10 information or material voluntarily or pursuant to a subpoena or a court order, 11 considers the information to constitute or to contain non-public business, financial, 12 technical, operations, development, commercial, or other non-public information, 13 whether embodied in physical objects, documents, or the factual knowledge of 14 persons, the disclosure of which could reasonably result in detriment to the 15 Producing Party or person; and which has been so designated by the Producing 16 Party. 17 2. For purposes of this Order, “HIGHLY CONFIDENTIAL–OUTSIDE 18 COUNSEL ONLY” information shall mean CONFIDENTIAL INFORMATION 19 that constitutes or contains (a) commercially sensitive marketing, financial, sales, 20 research and development, or technical data or information; (b) commercially 21 sensitive competitive information, including, without limitation, information 22 obtained from a non-party pursuant to a current Nondisclosure Agreement 23 (“NDA”); (c) information or data relating to future products not yet commercially 24 released and/or strategic plans; (d) commercial agreements, settlement agreements, 25 or settlement communications, the disclosure of which is likely to cause harm to 26 the competitive position of the Producing Party; (e) trade secrets, pricing 27 information, sales or marketing forecasts or plans, business plans, sales or 28 marketing strategy, product development information, engineering documents, 2 1 testing documents, employee information, customer lists, and other non-public 2 information of similar competitive and business sensitivity; and (f) information 3 that is likely to cause economic harm or significant competitive disadvantage to 4 the Producing Party if disclosed. In determining whether information should be 5 designated as HIGHLY CONFIDENTIAL–OUTSIDE COUNSEL ONLY, each 6 party agrees to use such designation only when necessary pursuant to the terms 7 herein. 3. 8 For purposes of this Order, “Protected Material” shall encompass any 9 documents or information designated as CONFIDENTIAL, HIGHLY 10 CONFIDENTIAL-OUTSIDE COUNSEL ONLY, or HIGHLY CONFIDENTIAL- 11 OUTSIDE COUNSEL ONLY-SOURCE CODE pursuant to this Order. 4. 12 The following information is not Protected Material: a. 13 any information that at the time of disclosure to a Receiving 14 Party is already lawfully in the public domain through no fault 15 of the Receiving Party; b. 16 any information that after disclosure to a Receiving Party 17 lawfully becomes part of the public domain as a result of 18 publication not involving a violation of this Order; c. 19 any information that a Receiving Party can show was received 20 by it, whether before or after the disclosure, from a source who 21 obtained the information lawfully and was under no obligation 22 of confidentiality to the Producing Party; or d. 23 any information that a Receiving Party can show was 24 independently developed by it or by personnel who have not 25 had access to the Producing Party’s Protected Material. 26 /// 27 /// 28 /// 3 1 DESIGNATION OF INFORMATION AS CONFIDENTIAL, OR HIGHLY 2 CONFIDENTIAL-OUTSIDE COUNSEL ONLY 3 5. The Producing Party’s designation of information as 4 CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY 5 means that the Producing Party believes in good faith, upon reasonable inquiry, 6 that the information qualifies as such. 7 6. Any document, electronically stored information, or tangible thing 8 containing or including any CONFIDENTIAL or HIGHLY CONFIDENTIAL- 9 OUTSIDE COUNSEL ONLY information may be designated as such by the 10 Producing Party by placing the appropriate designation on every page of the 11 written material prior to production. For digital files being produced in native 12 format, the Producing Party shall mark each viewable page or image with the 13 appropriate designation when possible, and the Producing Party shall mark the 14 medium, container, and/or communication in which the digital files are produced. 15 For electronic documents produced in native form which cannot be marked with 16 the appropriate designation, the Producing Party shall embed the confidentiality 17 designation in the metadata, document title, or production load file, and shall mark 18 the medium, container, and/or communication in which the digital files were 19 contained. No electronic file, folder or disk will be designated in its entirety as 20 CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY 21 based on only some of the documents therein being entitled to such a designation. 22 7. In the case of interrogatory answers and the information contained 23 therein, designation shall be made by marking the first page and all subsequent 24 pages containing the Protected Material with the appropriate confidentiality 25 designation. 26 8. The original and all copies of any deposition transcript and video 27 record shall be marked CONFIDENTIAL or HIGHLY CONFIDENTIAL- 28 OUTSIDE COUNSEL ONLY by the reporter, and shall thereafter be treated in 4 1 accordance with the terms of this Order, if an attorney states on the record at the 2 deposition that the information is CONFIDENTIAL or HIGHLY 3 CONFIDENTIAL-OUTSIDE COUNSEL ONLY or by advising the opposing 4 party and the stenographer and videographer in writing, within fourteen days after 5 the deposition and before the transcript has been distributed by the stenographer 6 and videographer, that the information is CONFIDENTIAL or HIGHLY 7 CONFIDENTIAL-OUTSIDE COUNSEL ONLY. In the event the transcript 8 and/or video record has been distributed within the 14-day period, the parties will 9 mark the original and copies of the transcript and record in their possession as 10 designated. Deposition transcripts, in their entirety, and any video record shall be 11 treated by default as CONFIDENTIAL until the expiration of the time to make a 12 confidentiality designation or the making of a confidentiality designation, 13 whichever occurs first. 14 9. All Protected Material not reduced to documentary, tangible or 15 physical form or that cannot be designated as set forth in Paragraphs 6-8, shall be 16 designated by informing the Receiving Party of the designation in writing. To the 17 extent the Receiving Party subsequently generates copies of this information, 18 whether electronic or hard-copy, it shall mark such copies with the appropriate 19 confidentiality designations. 20 10. When documents are produced in electronic form, the Producing 21 Party shall include a confidentiality designation on the medium containing the 22 documents. If a Receiving Party uses a hard-copy of a native format document, 23 the Receiving Party shall mark each such page of such document with the 24 applicable confidentiality designation. 25 11. A Producing Party’s failure to designate a document, thing, or 26 testimony as CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE 27 COUNSEL ONLY does not constitute forfeiture of a claim of confidentiality as to 28 any document, thing, or testimony. The Producing Party may immediately, upon 5 1 discovery, inform the Receiving Party of the CONFIDENTIAL or HIGHLY 2 CONFIDENTIAL-OUTSIDE COUNSEL ONLY nature of the disclosed 3 information, and the Receiving Party shall treat the disclosed information as 4 CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY 5 information upon receipt of written notice from the Producing Party. The 6 Receiving Party shall not be held liable to the Producing Party for having 7 previously disclosed such re-designated information, but shall be obligated to 8 undertake reasonable efforts to retrieve any previously disclosed, re-designated 9 information. 12. 10 A Producing Party who has designated information as 11 CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY 12 may withdraw the designation by written notification to all receiving parties who 13 received a copy of the designated information. 14 PERSONS AUTHORIZED TO REVIEW CONFIDENTIAL 15 INFORMATION 13. 16 Protected Material designated CONFIDENTIAL and information 17 contained therein shall be available only to the Producing Party and to the 18 following persons, except upon receipt of the prior written consent of the 19 Producing Party, or upon order by the Court: a. 20 Outside litigation counsel of record and supporting personnel 21 employed by the law firm(s) of outside litigation counsel of 22 record, such as attorneys, paralegals, legal translators, legal 23 secretaries, legal clerks, shorthand reporters or others assisting 24 litigation counsel of record, including any independent data 25 processing, production and review vendors to whom it is 26 reasonably necessary to disclose the information for this 27 litigation; 28 /// 6 b. 1 Outside consultants, as defined in Paragraph16, subject to the 2 provisions of Paragraphs 17-21, and who have signed and 3 provided the form attached hereto as Attachment A.; c. 4 The Court, its personnel and stenographic reporters (under seal or with other suitable precautions determined by the Court); 5 d. 6 Subject to Paragraph 21, independent legal translators retained 7 to translate in connection with this action; independent 8 stenographic reporters and videographers retained to record and 9 transcribe testimony in connection with this action; graphics, 10 translation, or design services retained by counsel for purposes 11 of preparing demonstrative or other exhibits for deposition, 12 trial, or other court proceedings in the actions; persons or 13 entities that provide litigation support services such as 14 photocopying, preparing exhibits or demonstrations, 15 organizing, storing, retrieving data in any form or medium; e. 16 Any mediator who is assigned by the Court or by mutual 17 agreement of the parties to hear this matter, and his or her staff, 18 subject to their agreement to maintain confidentiality to the 19 same degree as required by this Protective Order; f. 20 An author, signatory, prior recipient, or the original source of 21 the Protected Material. Such person shall be given access only 22 to the specific document or information therein, such as during 23 a deposition in accordance with the provisions of Paragraph 27; g. 24 Subject to Paragraph 21, jury consultants or trial consultants 25 retained by or on behalf of a party to assist outside counsel for 26 any party in connection with this litigation, together with 27 technicians, assistants, or mock jurors who are (1) supervised 28 /// 7 1 by such consultants and (2) subject to a written obligation of 2 confidentiality; and h. 3 Up to two in-house counsel employed by a party, who are 4 members of at least one state bar in good standing (or a foreign 5 equivalent thereof), and up to two technical or business 6 personnel, to whom disclosure is reasonably necessary for 7 purposes of this litigation. Each in-house counsel and technical 8 or business personnel must execute the form attached hereto as 9 Attachment A. 10 PERSONS AUTHORIZED TO REVIEW HIGHLY CONFIDENTIAL- 11 OUTSIDE COUNSEL ONLY INFORMATION 14. 12 Protected Material Designated “HIGHLY CONFIDENTIAL- 13 OUTSIDE COUNSEL ONLY” and information contained therein shall be 14 available only to the persons or entities listed in Paragraph 13(a)-(g). a. 15 Prosecution Bar. Absent written consent from the Producing 16 Party, any individual who receives access to HIGHLY 17 CONFIDENTIAL-OUTSIDE COUNSEL ONLY or HIGHLY 18 CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE 19 CODE information shall not be involved in the prosecution of 20 patents or patent applications related to software used in the 21 operation of electric power distribution systems and historian 22 software (software that collects operational and processing data 23 from devices attached to an electric power distribution system 24 and stores this information in a time series database historian) 25 relating to such systems including, without limitation, the 26 patents asserted in this action and any patent or application 27 claiming priority to or otherwise related to the patents asserted 28 /// 8 1 in this action, before any foreign or domestic agency, including 2 the United States Patent and Trademark Office. 3 (i) Exception. The foregoing prosecution bar does not 4 apply as to product information that has been provided to 5 customers or prospective customers or to information 6 that is or has been publicly available even if such 7 information has been designated as HIGHLY 8 CONFIDENTIAL-OUTSIDE COUNSEL ONLY. 9 However, the exception does not apply to information 10 designated as HIGHLY CONFIDENTIAL-OUTSIDE 11 COUNSEL ONLY-SOURCE CODE or extend to 12 HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL 13 ONLY information that has not been provided to 14 customers or prospective customers and is not and has 15 never been publicly available. b. 16 Prosecution. For purposes of this paragraph, “prosecution” 17 includes directly or indirectly drafting, amending, advising, or 18 otherwise affecting the scope or maintenance of patent claims, 19 including in the original prosecution, and any inter partes 20 review. Prosecution does not include representing a party 21 challenging a patent before a domestic or foreign agency 22 (including, for example, an inter parties review). This 23 Prosecution Bar shall begin when access to HIGHLY 24 CONFIDENTIAL-OUTSIDE COUNSEL ONLY or HIGHLY 25 CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE 26 CODE information is first received by the affected individual 27 and shall end one (1) year after final termination of this action. 28 /// 9 1 2 OUTSIDE CONSULTANTS 15. Protected Materials, and such copies as are reasonably necessary for 3 maintaining, defending or evaluating this litigation, may be furnished and 4 disclosed to outside consultants retained for purposes of this litigation. 5 16. The term “outside consultant” shall mean any outside person (who is 6 not a current or former employee of the retaining party) and include their 7 engineering, technical, accounting, financial or other support personnel, including, 8 but not limited to, a proposed expert witness or consultant with whom counsel 9 may deem it necessary to consult concerning technical, financial, or other aspects 10 of this case. 11 17. A Receiving Party desiring to disclose Protected Materials to a 12 technical outside consultant, shall first give written notice to the Producing Party 13 that it desires to disclose such information to such person(s), and thereafter the 14 Producing Party shall have three (3) business days after such notice is given to 15 object in writing. The party desiring to disclose the Protected Material to a 16 technical outside consultant shall provide to the Producing Party the curriculum 17 vitae of each technical outside consultant, a signed copy of the Agreement found 18 in Attachment A from each technical outside consultant, and shall also include the 19 following information about each technical outside consultant in the written 20 notice: 21 a. Current employer; 22 b. Business address and employer’s address if not the same; 23 c. Business title; 24 d. Business or profession; 25 e. Any previous or current relationship (personal, profession, or the employer’s) with any of the parties; and 26 27 28 f. For the preceding four years, a listing of the cases in which the individual has testified (at trial or deposition), all companies for 10 1 which the individual has worked or provided any consulting 2 services, either directly or through a consulting firm, and all 3 companies by which the individual has been employed. 4 18. A Receiving Party desiring to disclose Protected Materials to a 5 financial outside consultant, shall first give written notice to the Producing Party 6 that it desires to disclose such information to such person(s), and thereafter the 7 Producing Party shall have three (3) business days after such notice is given to 8 object in writing. The party desiring to disclose the Protected Material to a 9 financial outside consultant shall provide to the Producing Party the curriculum 10 vitae of each lead financial outside consultant, a signed copy of the Agreement 11 found in Attachment A from each lead financial outside consultant, and shall also 12 include the following information about each lead financial outside consultant in 13 the written notice: 14 a. Current employer; 15 b. Business address and employer’s address if not the same; 16 c. Business title; 17 d. Business or profession; 18 e. Any previous or current relationship (personal, profession, or the employer’s) with any of the parties; and 19 f. 20 For the preceding four years, a listing of the cases in which the 21 individual has testified (at trial or deposition), all companies for 22 which the individual has worked or provided any consulting 23 services, either directly or through a consulting firm, and all 24 companies by which the individual has been employed. 25 19. No Protected Material shall be disclosed to any such outside 26 consultant until after the expiration of the foregoing notice period unless written 27 consent to such disclosure is provided by the Producing Party prior to the 28 expiration of the foregoing notice period. 11 20. 1 If, however, during the notice period the Producing Party serves an 2 objection upon the Receiving Party desiring to disclose Protected Material to the 3 outside consultant, and identifies in particular the nature of the Protected Material 4 that it objects to disclosure and the reasons for the objection, there shall be no 5 disclosure of the Protected Material so identified as the subject of objection to 6 such outside consultant pending resolution of the objection. The Producing Party 7 objecting to disclosure of Protected Material to the outside consultant shall provide 8 an explanation of the basis of its objection, and consent to the disclosure of 9 Protected Material to the outside consultant shall not be unreasonably withheld. If 10 a Producing Party objects to the disclosure of Protected Material to an outside 11 consultant, the Receiving Party shall then have three (3) business days after such 12 objection is served to respond to the objection. The Producing Party shall then 13 have three (3) business days after such response is served to file an objection with 14 the Court and seek a protective order to prevent the disclosure of Protected 15 Material to the proposed outside consultant or other appropriate relief, if the 16 parties cannot come to an agreement. The Producing Party shall bear the burden 17 of establishing that the objectionable outside consultant should not have access to 18 the Producing Party’s Protected Material. No Protected Material shall be provided 19 to the proposed outside consultant until after resolution of the objection either by 20 the parties or by the Court. If the Producing Party fails to file an objection with 21 the Court within the prescribed period, then any objection to the outside consultant 22 is waived, and any Protected Material may be thereafter disclosed to such outside 23 consultant. No document designated by a Producing Party as Protected Material 24 information shall be disclosed by a Receiving Party to an outside consultant until 25 after the applicable outside consultant has signed the Confidentiality Agreement 26 appended hereto as Attachment A. Such agreement shall be retained by counsel 27 for the Receiving Party. 28 /// 12 1 21. A Receiving Party desiring to disclose Protected Materials to an 2 outside consultant shall first require such financial outside consultant to execute 3 the Agreement found in Attachment A. Such executed agreement shall be retained 4 by counsel for the Receiving Party. 5 6 7 8 22. Only the parties to this litigation may invoke the notice provisions in Paragraphs 17-20 regarding outside consultants. CHALLENGES TO CONFIDENTIALITY DESIGNATIONS 23. The parties will use reasonable care when designating documents or 9 information as CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE 10 COUNSEL ONLY information. Nothing in this Order shall prevent a Receiving 11 Party from contending that any documents or information designated as 12 CONFIDENTIAL, HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY, or 13 HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE 14 information have been improperly designated. A Receiving Party may at any time 15 request that the Producing Party cancel or modify the confidentiality designation 16 with respect to any document or information contained therein. 17 24. A party shall not be obligated to challenge the propriety of any 18 CONFIDENTIAL, HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY, or 19 HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE 20 designation at the time it receives the Protected Material, and a failure to do so 21 shall not preclude a subsequent challenge thereto. Such a challenge shall be 22 written, shall be served on counsel for the Producing Party, and shall particularly 23 identify the documents or information that the Receiving Party contends was 24 improperly designated. The parties shall use their best efforts to promptly and 25 informally resolve such disputes. If agreement cannot be reached, the Receiving 26 Party may request that the Court revoke or modify a CONFIDENTIAL, HIGHLY 27 CONFIDENTIAL-OUTSIDE COUNSEL ONLY, or HIGHLY CONFIDENTIAL- 28 OUTSIDE COUNSEL ONLY-SOURCE CODE designation. Any such request 13 1 must fully comply with Local Rule 37. The party or parties producing the 2 designated documents shall have the burden of establishing that the disputed 3 documents are entitled to confidential treatment. Until such a dispute is resolved, 4 either by the parties or by direction of the Court, the Receiving Party shall 5 continue to treat the information at issue consistent with its current confidentiality 6 designation under this Order. A party’s failure to contest a designation of 7 information as CONFIDENTIAL, HIGHLY CONFIDENTIAL-OUTSIDE 8 COUNSEL ONLY, or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL 9 ONLY-SOURCE CODE is not an admission that the information was properly 10 designated as such. 11 LIMITATIONS ON THE USE OF PROTECTED MATERIAL 25. 12 Any Protected Material obtained by any Receiving Party from any 13 Producing Party in this litigation or other person shall be used only for purposes of 14 this litigation and any appeals therefrom, and may not be used for any other 15 purpose, such as use in other litigation or for any business purpose. 26. 16 Protected Material shall be held in confidence by each person to 17 whom it is disclosed. Such information shall not be disclosed to any person who 18 is not entitled to receive such information as herein provided. All Protected 19 Material shall be carefully maintained so as to preclude access by persons who are 20 not entitled to receive such information. However, nothing in this Order shall 21 prevent any court reporter, videographer, mediator or their employees, or the 22 Court, any employee of the Court or any juror from reviewing any evidence in this 23 case for the purpose of these proceedings. Further, nothing in this Order shall 24 impact the admissibility of any document or other evidence at any hearing or at 25 trial. 27. 26 Except as may be otherwise ordered by the Court, any person may be 27 examined as a witness at depositions and trial and may testify concerning any 28 /// 14 1 Protected Material of which such person has prior knowledge. Without in any 2 way limiting the generality of the foregoing: 3 a. A present director, officer, and/or employee of a Producing 4 Party may be examined and may testify concerning all 5 Protected Material which has been produced by that party; 6 b. A former director, officer, agent and/or employee of a 7 Producing Party may be interviewed and examined, and may 8 testify concerning any Protected Material that refers to matters 9 which the interviewer, examiner or questioner believes are 10 within the personal knowledge of the witness, which has been 11 produced by that party, and which pertains to the period or 12 periods of his or her employment or other involvement with the 13 party; and 14 c. Non-parties may be examined or testify concerning any 15 Protected Material of a Producing Party which appears on its 16 face or from other documents or testimony to have been 17 received from or communicated to the non-party as a result of 18 any contact or relationship with the Producing Party, or a 19 representative of such Producing Party. Any person other than 20 the witness, his or her attorney(s), and any person qualified to 21 receive Protected Material under this Order shall be excluded 22 from the portion of the examination concerning such 23 information, unless the Producing Party fails to object to 24 persons other than qualified recipients being present at the 25 examination. If the witness is represented by an attorney who 26 is not qualified under this Order to receive such information, 27 then prior to the portion of the examination relating to such 28 information, the attorney shall be requested to provide a signed 15 1 Confidentiality Agreement, in the form of Attachment A hereto 2 In the event that such attorney declines to sign such a 3 Confidentiality Agreement, prior to the examination, the 4 parties, by their attorneys, shall jointly seek a protective order 5 from the Court prohibiting such attorney from disclosing such 6 Protected Material. 7 28. All transcripts of depositions, exhibits, answers to interrogatories, 8 pleadings, briefs, and other documents submitted to the Court which include 9 Protected Material or which contain information so designated, shall be submitted 10 for filing under seal pursuant to the provisions of Local Rule 79. 11 12 29. Nothing in this Order shall prohibit the transmission or communication of Protected Material between or among qualified recipients: 13 a. by hand-delivery; 14 b. in sealed envelopes or containers via the mails or an established freight, delivery, or messenger service; or 15 c. 16 by telephone, telegraph, facsimile, email or other electronic 17 transmission system, where, under the circumstances, there is 18 no reasonable likelihood that the transmission will be 19 intercepted or misused by any person who is not a qualified 20 recipient. 21 22 PRODUCTION OF SOURCE CODE 30. All source code produced in this litigation (“Designated Code”) shall 23 be subject to the same restrictions as information designated as HIGHLY 24 CONFIDENTIAL-OUTSIDE COUNSEL ONLY provided that the producing 25 party designates such code HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL 26 ONLY-SOURCE CODE. Only the code itself shall be so marked. Descriptions or 27 summaries of the Designated Code shall not be marked as HIGHLY 28 CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE. The 16 1 following additional restrictions shall apply to Designated Code. Designated Code 2 shall not include any machine readable code such as executable program files 3 which shall not be governed by these provisions regarding the production of 4 source code. 5 31. Any Designated Code made available for inspection in discovery 6 shall be made available in a format allowing it to be reasonably reviewed and 7 searched, during normal business hours or at other mutually agreeable times, at an 8 office of the Producing Party’s counsel or another mutually agreed upon location. 9 The Designated Code shall be made available for inspection on a secured 10 computer in a secured room without Internet access or network access to other 11 computers (“Source Code Computer”), and the Receiving Party shall not copy, 12 remove, or otherwise transfer any portion of the Designated Code onto any 13 recordable media or recordable device. The Producing Party may visually monitor 14 the activities of the Receiving Party’s representatives during any source code 15 review, but only to ensure that there is no unauthorized recording, copying, or 16 transmission of the Designated Code. The Producing Party may not view any 17 notes or writings prepared by the Receiving Party’s representative. 18 32. All persons viewing source code shall sign and print their names and 19 the date of the inspection in an inspection log on each day they view the 20 Designated Code. The inspection log will be maintained by the Producing Party, 21 and shall be provided to the Receiving Party upon request. 22 33. The Producing Party shall provide a manifest of the contents of the 23 Source Code Computer. This manifest shall be supplied in both printed and 24 electronic form and shall list the name, version histories, and location (i.e., 25 filename and filepath) of every source code file on the Source Code Computer. 26 34. The Source Code Computer shall include software utilities, 27 designated and provided to the Producing Party for installation on the Source 28 Code Computer by the Receiving Party, which allow the Receiving Party’s 17 1 representative to view, search, and analyze the source code (“source code review 2 utilities”). At a minimum, the source code review utilities must provide the 3 ability to (a) view, search, and line-number any source code file (i.e., text editors 4 such as notepad++ and sublime text), (b) search for a given pattern of text through 5 a number of files, (c) compare two files and display their differences, (d) compute 6 the MD5 checksum of a file, (e) and any other reasonable requests by the 7 Reviewing Party. To the extent the Receiving Party seeks to use a specific source 8 code review utility that the Producing Party does not have, then the Receiving 9 Party must provide that source code review utility to the Producing Party. 10 35. The Receiving Party may request paper copies of limited portions of 11 the Designated Code that are reasonably necessary for the preparation of court 12 filings, pleadings, expert reports, or other papers, or for deposition or trial, but 13 shall not request paper copies for the purpose of reviewing the Designated Code 14 other than electronically as set forth in Paragraph 34 in the first instance. The 15 Producing Party shall provide all requested Designated Code in paper form, 16 including bates numbers and the label HIGHLY CONFIDENTIAL-OUTSIDE 17 COUNSEL ONLY-SOURCE CODE. The Producing Party may challenge the 18 amount of Designated Code requested in hard copy form. If, after meeting and 19 conferring, the Producing Party and the Receiving Party cannot resolve the 20 objection, the Parties shall file a joint motion within three (3) business days after 21 the completion of the meet and confer process, and the Parties will request 22 expedited consideration of the motion. 23 36. The Receiving Party shall maintain a record of any individual who 24 has inspected any portion of the Designated Code in paper form. The Receiving 25 Party shall maintain all paper copies of any printed portions of the Designated 26 Code in a secured, locked area. The Receiving Party shall only make additional 27 paper copies if such additional copies are (1) necessary to prepare court filings, 28 pleadings, or other papers (including a testifying expert's expert report), (2) 18 1 necessary for deposition, or (3) otherwise necessary for the preparation of its case. 2 The Receiving Party shall not convert any of the information contained in the 3 paper copies into any electronic format other than for the preparation of a 4 pleading, exhibit, expert report, discovery document, deposition transcript, or 5 other Court document. Any paper copies used during a deposition shall be 6 retrieved by the Producing Party at the end of each day and must not be given to or 7 left with a court reporter or any other unauthorized individual. 37. 8 At the conclusion of the litigation, counsel for each Party will certify 9 on behalf of itself and anyone working with and/or at the direction of counsel or 10 the Party that all copies, electronic or paper, of or containing Designated Code 11 have been returned to the Producing Party, or destroyed or erased in a manner that 12 prevents any forensic recovery of the Designated Code, with the exception of 13 portions of Designated Code that were included in filed or served pleadings or 14 their exhibits, or as exhibits to depositions, or admitted into evidence. Other than 15 as set forth in this subparagraph, counsel may not retain any copies of Designated 16 Code. 17 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN 18 OTHER LITIGATION 19 38. If a Receiving Party is served with a subpoena or a court order issued 20 in other litigation that compels disclosure of any information or items designated 21 in this Action as “CONFIDENTIAL, HIGHLY CONFIDENTIAL-OUTSIDE 22 COUNSEL ONLY-SOURCE CODE.” that Party must: 23 (a) promptly notify in writing the Producing Party. Such 24 notification shall include a copy of the subpoena or court order; 25 (b) promptly notify in writing the party who caused the 26 subpoena or order to issue in the other litigation that some or all 27 of the material covered by the subpoena or order is subject to 28 this Protective Order. Such notification shall include a copy of 19 1 this Stipulated Protective Order; and 2 (c) cooperate with respect to all reasonable procedures sought 3 to be pursued by the Producing Party whose Protected Material 4 may be affected. 5 39. If the Producing Party timely seeks a protective order, the Party 6 served with the subpoena or court order shall not produce any information 7 designated in this action as “CONFIDENTIAL” before a determination by the 8 court from which the subpoena or order issued, unless the Party has obtained the 9 Producing Party’s permission. The Producing Party shall bear the burden and 10 expense of seeking protection in that court of its confidential material and nothing 11 in these provisions should be construed as authorizing or encouraging a Receiving 12 Party in this Action to disobey a lawful directive from another court. 13 14 NONPARTY USE OF THIS PROTECTIVE ORDER 40. A nonparty producing information or material voluntarily or pursuant 15 to a subpoena or a court order may designate such material or information in the 16 same manner and shall receive the same level of protection under this Order as any 17 party to this lawsuit, provided that such nonparty complies with the provisions of 18 this Order. 19 41. A nonparty’s use of this Order to protect its Protected Material does 20 not entitle that nonparty access to any Protected Material produced by any party in 21 this case. 22 23 RETURN OR DESTRUCTION OF PROTECTED MATERIAL 42. Within sixty (60) days after this action is terminated, either by the 24 entry of a final, non-appealable judgment or order, the complete settlement of all 25 claims asserted against all parties in this action, or by other means, each party 26 shall, at its option, either return to the Producing Party or destroy all Protected 27 Materials which were received from the Producing Party. After ninety (90) days 28 have passed since the termination of this action, a Producing Party may write to 20 1 any Receiving Party and request confirmation that any Protected Material 2 produced by the Producing Party and identified as Protected Material not 3 previously returned to the Producing Party have been destroyed. Notwithstanding 4 the foregoing, counsel shall be entitled to maintain copies of all notes, memoranda, 5 and other work product materials, as well as pleadings, motions and trial briefs 6 (including all supporting and opposing papers and exhibits thereto), written 7 discovery requests and responses (and exhibits thereto), deposition transcripts (and 8 exhibits thereto), trial transcripts, and exhibits offered or introduced into evidence 9 at trial. Notwithstanding the provisions of this Paragraph, counsel is not required 10 to delete information that may reside on their electronic disaster recovery systems 11 which are over-written in the normal course of business. However, counsel agree 12 that no Protected Material shall be purposefully retrieved from the electronic 13 disaster recovery systems after the conclusion of the above-captioned matter. 14 15 NON-WAIVER OF PRIVILEGE 43. Production of documents (including physical objects) for inspection, 16 or production of copies of documents, shall not constitute a waiver of the attorney- 17 client privilege or work product immunity or any other applicable privilege or 18 immunity from discovery if, after the Producing Party becomes aware of any 19 inadvertent or unintentional disclosure, the Producing Party designates any such 20 documents as within the attorney-client privilege or work product immunity or any 21 other applicable privilege or immunity and requests destruction or return of such 22 documents to the Producing Party identifying the documents(s), the asserted 23 privilege or protection, and the grounds therefor (hereinafter “claw-back”). Upon 24 request by the Producing Party, the Receiving Party shall immediately destroy or 25 return all copies of such inadvertently produced document(s), regardless of 26 whether the Receiving Party agrees with the designation of the documents as 27 protected by the applicable privilege or immunity without making any further use 28 of such documents(s), and shall immediately destroy any notes or other writings 21 1 that summarize, reflect or discuss the privileged or protected content of such 2 document(s). The Producing Party shall thereafter put any document designated in 3 this manner onto its privilege log. Nothing herein shall prevent the Receiving 4 Party from challenging the propriety of the attorney-client privilege or work 5 product immunity or other applicable privilege or immunity designation by 6 submitting a written challenge to the Court. However, the Receiving Party may 7 not use the production of the document(s) in question to support the challenge, 8 except as evidence that such production was not inadvertent or unintentional, or to 9 show that the production was not otherwise entitled to the above claw-back 10 provision. 11 DISCOVERY RULES REMAIN UNCHANGED 44. 12 Nothing herein shall alter or change in any way the discovery 13 provisions of the Federal Rules of Civil Procedure, the Local Rules of the District 14 Court, or the Court’s Scheduling Order. Identification of any individual pursuant 15 to this Order does not make that individual available for deposition or any other 16 form of discovery outside of the restrictions and procedures of the Federal Rules 17 of Civil Procedure, the Local Rules, or the Court’s Scheduling Order. Nothing in 18 this Order shall be construed to require a party to produce or disclose information 19 not otherwise required to be produced under the applicable rules or orders of this 20 Court. 45. 21 Any party is free to use its own Protected Material for any purpose, 22 and no use by the Producing Party shall affect or otherwise act as a waiver with 23 respect to the confidential status of that information. 24 MISCELLANEOUS PROVISIONS 46. 25 Any of the notice requirements herein may be waived, in whole or in 26 part, but only by a writing signed by (or email sent by) the attorney of record for 27 the party against whom such waiver will be effective. 28 /// 22 47. 1 2 Entering into, producing and/or receiving Protected Material or otherwise complying with the terms of this Order shall not: a. 3 Operate as an admission by any party that any Protected 4 Material contains or reflects (or does not contain or reflect) 5 trade secrets or any other type of confidential or proprietary 6 information entitled to protection under any applicable laws; b. 7 Prejudice in any way the rights of any party to object to the 8 production of documents, electronically stored information and 9 things it considers not subject to discovery, or operate as an 10 admission by any party that the restrictions and procedures set 11 forth herein constitute adequate protection for any particular 12 information deemed by any party to be Protected Material; c. 13 Prejudice in any way the rights of any party to object to the 14 authenticity or admissibility into evidence of any document, 15 testimony or the evidence subject to this Order; d. 16 Prejudice in any way the rights of any party to seek a 17 determination by the Court whether any discovery material or 18 Protected Material should be subject to the terms of this Order; e. 19 Prejudice in any way the rights of any party to petition the 20 Court for a further protective order related to any purportedly 21 Protected Material; f. 22 Prejudice in any way the rights of any party to petition the 23 Court for permission to disclose or use particular Protected 24 Material more broadly than would otherwise be permitted by 25 the terms of this Order; or g. 26 provisions or protections provided for herein with respect to 27 28 Prevent any party from agreeing to alter or waive the /// 23 1 any particular discovery material designated as Protected 2 Material by that party. 48. 3 By entering this Order and limiting the disclosure of information in 4 this case, the Court does not intend to preclude another court from finding that 5 information may be relevant and subject to disclosure in another case. Any person 6 or party subject to this Order who becomes subject to a motion, or any obligation 7 through court order, subpoena, or otherwise to disclose another party’s Protected 8 Material shall promptly notify the Producing Party of the order or request for the 9 disclosure so that the Producing Party may have an opportunity to contest the 10 order or request for the disclosure and be heard on whether that information should 11 be disclosed. 49. 12 In the event that any Protected Material is disclosed to any person or 13 entity that is not, or would not be, permitted to access the Protected Material under 14 this Order, then the disclosing party must immediately upon discovery of such 15 disclosure notify the relevant Producing Party or parties in writing of the 16 disclosure. The disclosing party shall take all reasonable steps to retrieve the 17 disclosed information from any person or entity that is not, or would not be, 18 permitted to access the information under this Order, including requesting the 19 return of all copies of the disclosed information. Such efforts by the disclosing 20 party shall not affect the right of the Producing Party to seek redress against the 21 disclosing party for such improper disclosure. 50. 22 The provisions of this Order shall retroactively apply to any Protected 23 Material obtained by any Party or its counsel prior to entry of this Order by the 24 Court. 25 /// 26 /// 27 /// 28 /// 24 1 51. This Order’s obligations regarding Protected Material survive the 2 conclusion of this case. 3 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. 4 5 6 7 8 DATED: June 21, 2017 _________________________________ /S/FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25 ATTACHMENT A 1 2 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION 3 4 5 6 POWER ANALYTICS CORPORATION, Case No. 8:16-cv-01955-JAK (FFMx) Plaintiff, 7 v. 8 9 OPERATION TECHNOLOGY, INC., d/b/a ETAP, OSISOFT LLC, and 10 SCHNEIDER ELECTRIC USA, INC., 11 Defendants. 12 13 I, ___________________________ state as follows: 14 I reside at 15 My present employer is ______________________________________. My 16 17 present occupation or job description is _______________________________. 18 19 20 . I have read the Stipulated Protective Order (“Order”) in its entirety and understand the confidentiality restrictions regarding Protected Materials that are 21 exchanged in the matter styled Power Analytics Corp. v. Operation Technology, 22 Inc. et al., Case No. 8:16-cv-01955-JAK-FFM (C.D. Cal.). I agree to comply with 23 24 and be bound by the terms of the Order. I solemnly promise that I will not divulge 25 any CONFIDENTIAL, HIGHLY CONFIDENTIAL-OUTSIDE 26 ONLY, or HIGHLY CONFIDENTIAL–OUTSIDE COUNSEL ONLY–SOURCE 27 28 1 COUNSEL 1 2 3 4 5 6 7 8 9 10 11 CODE information (“Protected Materials”) to persons other than those specifically authorized by the Order. I understand and acknowledge that failure to comply with the Order could expose me to sanctions and punishment in the nature of contempt. At the termination of this action, I will return or destroy, as directed, any Protected Material I received and any notes or other documents reflecting any such materials. I further agree to submit myself to the authority and jurisdiction of the United States District Court for the District of Delaware in the event of any 12 violation of this agreement or dispute related to the Order that concerns my actions. 13 I state under penalty of perjury under the laws of the United States of 14 15 America that the foregoing is true and correct. 16 17 18 19 Executed on this ___ day of ______________, 201_. City and State where sworn and signed: 20 ___________________________________ 21 Printed Name: ________________________________ 22 23 24 Signature: ____________________________________ 25 26 27 28 2

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