International Business Machines Corporation v. Zillow Group, Inc. et al

Filing 88

PROTECTIVE ORDER by Magistrate Judge John D. Early re Notice of Lodging of [Proposed] Stipulated Protective Order 87 . (see document for details) (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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SOUTHERN DIVISION

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INTERNATIONAL BUSINESS
MACHINES CORPORATION,
Plaintiff,

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STIPULATED PROTECTIVE
ORDER

v.

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Case No. 8:19-CV-01777-JLS-JDEx

ZILLOW GROUP, INC.; ZILLOW, INC.,
[Note Changes by the Court]

Defendants.

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production

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of confidential, proprietary, or private information for which special protection from

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public disclosure and from use for any purpose other than prosecuting this litigation

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may be warranted. Accordingly, the parties hereby stipulate to and petition the court

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to enter the following Stipulated Protective Order. The parties acknowledge that this

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

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

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limited information or items that are entitled to confidential treatment under the

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

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14.4, below, that this Stipulated Protective Order does not entitle them to file
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confidential information under seal; Civil Local Rule 79-5 sets forth the procedures

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that must be followed and the standards that will be applied when a party seeks

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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 qualify for

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

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2.3

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

Counsel (as well as their support staff).
2.4

Designated House Counsel: House Counsel who seek access to

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this

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matter.

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2.5

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” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”

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or “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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2.6

Disclosure or Discovery Material: all items or information, regardless of

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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 or

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generated in disclosures or responses to discovery in this matter.

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2.7

Expert: a person with specialized knowledge or experience in a matter

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pertinent to the litigation who (1) has been retained by a Party or its counsel to serve

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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 not

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anticipated to become an employee of a Party or of a Party’s competitor.
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2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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

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disclosure of which to another Party or Non-Party would create a substantial risk of

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

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2.9

“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”

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Information or Items: extremely sensitive third-party financial or technical

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information whose disclosure is restricted by a protective order entered by another

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court, and disclosure of which to a Party or Non-Party would create a substantial risk

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

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material as “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”

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requires advance consent of the Receiving Party, and material so designated may not

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be viewed by House Counsel, and shall be subject to the procedures for challenging

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designations set forth in Section 6 of this Stipulated Protective Order.

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2.10

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:

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extremely sensitive “Confidential Information or Items” representing computer code

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and associated comments and revision histories, formulas, engineering specifications,

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or schematics that define or otherwise describe in detail the algorithms or structure of

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software or hardware designs, disclosure of which to another Party or Non-Party

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would create a substantial risk of serious harm that could not be avoided by less

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restrictive means.

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2.11 House Counsel: attorneys who are employees of a party to this action.

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House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.12 Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.

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2.13 Outside Counsel of Record: attorneys who are not employees of a party

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to this action but are retained to represent or advise a party to this action and have

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appeared in this action on behalf of that party or are affiliated with a law firm which
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has appeared on behalf of that party.

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

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employees to whom disclosure is reasonably necessary to the litigation, consultants,

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retained experts, and Outside Counsel of Record (and their support staffs).

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2.15 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.

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2.16 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) and

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their employees and subcontractors.

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2.17 Protected Material: any Disclosure or Discovery Material that is

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designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –

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

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COUNSEL’S EYES ONLY” or as “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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2.18 Receiving Party: a Party that receives Disclosure or Discovery Material

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from a Producing Party.
3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected

Material (as defined above), but also (1) any information copied or extracted from
Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony, conversations, or presentations by Parties or their
Counsel that might reveal Protected Material. However, the protections conferred by
this Stipulation and Order do not cover the following information: (a) any information
that is in the public domain at the time of disclosure to a Receiving Party or becomes
part of the public domain after its disclosure to a Receiving Party as a result of
publication not involving a violation of this Order, including becoming part of the
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. Any use of Protected Material

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at trial shall be governed by a separate agreement or order. Nothing in this Protective

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Order shall prevent or restrict a Producing Party’s own disclosure or use of its own

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Discovery Material for any purpose; and nothing in this Order shall preclude any

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Receiving Party from showing Discovery Material to an individual who prepared the

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Discovery Material.

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Except as may be otherwise ordered by the Court, any person may be examined

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as a witness at depositions and/or trial and may testify concerning all Protected

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Material of which such person has prior knowledge as set forth below:

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(i)

A present director, officer, and/or employee of a Producing Party may be

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examined and may testify concerning all Protected Material which has been produced

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by that Party;

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(ii)

A former director, officer, and/or employee of a Producing Party may be

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examined and may testify concerning all Protected Material of the Producing Party

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that establishes on its face or is established from other documents or testimony to have

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been previously received from or communicated to that person and of which he or she

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has prior knowledge, including any Protected Material that refers to matters of which

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the witness has personal knowledge, has been produced by that Party, and pertains to

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the period or periods of his or her employment; and

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(iii)

Non-parties may be examined or testify concerning any document

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containing Protected Material of a Producing Party that appears, on its face or from

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other documents or testimony, to have been previously received from or

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communicated to the non-party as a result of any contact or relationship with the

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Producing Party or a representative of such Producing Party. Any person other than

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the witness, his or her attorney(s), and any person qualified to receive Protected

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Material under this Order shall be excluded from the portion of the examination
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concerning such information, unless the Producing Party consents to persons other

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than qualified recipients being present at the examination.

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4.

DURATION

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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 otherwise

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

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the later of (1) dismissal of all claims and defenses in this action, with or without

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prejudice; and (2) final judgment herein after the completion and exhaustion of all

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appeals, rehearings, remands, trials, or reviews of this action, including the time limits

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for filing any motions or applications for extension of time pursuant to applicable law.

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5.

DESIGNATING PROTECTED MATERIAL

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5.1

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Any Producing Party may designate Discovery Material with any of the

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following designations, provided that it meets the requirements for such designations

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as provided for herein:

Available Designations.

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(i)

“CONFIDENTIAL”

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(ii)

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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(iii)

“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES

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ONLY”

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(iv)

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5.2

“HIGHLY CONFIDENTIAL – SOURCE CODE.”

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 this

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

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under the appropriate standards. To the extent it is practical to do so, the Designating

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

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oral or written communications that qualify – so that other portions of the material,

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documents, items, or communications for which protection is not warranted are not

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swept unjustifiably within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations

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

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

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unnecessary expenses and burdens on other parties) expose the Designating Party to

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sanctions.

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

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designated for protection do not qualify for protection at all or do not qualify for 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 mistaken designation.

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5.3

Manner and Timing of Designations. Except as otherwise provided in this

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Order (see, e.g., second paragraph of section 5.3(a) below), or as otherwise stipulated

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or ordered, Disclosure or Discovery Material that qualifies for protection under this

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

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

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CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” or “HIGHLY

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CONFIDENTIAL – SOURCE CODE” to each page that contains protected material.

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If only a portion or portions of the material on a page qualifies for protection, and to

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the extent it is practical to do so, the Producing Party also must clearly identify the

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protected portion(s) (e.g., by making appropriate markings in the margins) and must

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specify, for each portion, the level of protection being asserted.

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

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

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

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before the designation, all of the material made available for inspection shall be
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deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

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inspecting Party has identified the documents it wants copied and produced, the

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Producing Party must determine which documents, or portions thereof, qualify for

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protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

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– OUTSIDE COUNSEL’S EYES ONLY” or “HIGHLY CONFIDENTIAL –

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SOURCE CODE”) to each page that contains Protected Material. If only a portion or

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portions of the material on a page qualifies for protection, the Producing Party also

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must clearly identify the protected portion(s) (e.g., by making appropriate markings in

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the margins) and must specify, for each portion, the level of protection being asserted.

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Moreover, media containing documents may be designated by marking the

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media with the appropriate confidentiality designation. If documents are printed from

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the media, they shall be immediately marked with the designation on the media.

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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 the

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

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

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

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

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

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21 days 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 the

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testimony that are appropriately designated for protection within the 21 days shall be

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

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Designating Party may specify, at the deposition or up to 21 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.”

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

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hearing or other proceeding to include Protected Material so that the other parties can

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ensure that only authorized individuals who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A) are present at those proceedings. 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” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”

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or “HIGHLY CONFIDENTIAL – SOURCE CODE.”

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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 a 21-day period

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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 only

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as actually designated.

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(c) for information produced in some form other than documentary and

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for 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” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”

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or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a portion or portions of

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the information or item warrant protection, the Producing Party, to the extent

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

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being asserted.
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5.4

Inadvertent Failures to Designate. If timely corrected, an inadvertent

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

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

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

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

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

designation of confidentiality at any time, subject to any applicable Scheduling Order.
Unless a prompt challenge to a Designating Party’s confidentiality designation is
necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
or a significant disruption or delay of the litigation, a Party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly
after the original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute

resolution process by providing written notice of each designation it is challenging and
describing the basis for each challenge. To avoid ambiguity as to whether a challenge
has been made, the written notice must recite that the challenge to confidentiality is
being made in accordance with this specific paragraph of the Protective Order. The
parties shall attempt to resolve each challenge in good faith and must begin the process
by conferring directly (in voice to voice dialogue; other forms of communication are
not sufficient) within 14 days of the date of service of notice. In conferring, the
Challenging Party must explain the basis for its belief that the confidentiality
designation was not proper and must give the Designating Party an opportunity to
review the designated material, to reconsider the circumstances, and, if no change in
designation is offered, to explain the basis for the chosen designation. A Challenging
Party may proceed to the next stage of the challenge process only if it has engaged in
this meet and confer process first or establishes that the Designating Party is unwilling
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to participate in the meet and 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 37 (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 days

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

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whichever is earlier. Each such motion must be accompanied by a competent

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declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Failure by the Designating Party to

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make such a motion including the required declaration within 21 days (or 14 days, if

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applicable) shall automatically waive the confidentiality designation for each

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challenged designation. In addition, the Challenging Party may file a motion

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challenging a confidentiality designation at any time if there is good cause for doing

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so, including a challenge to the designation of a deposition transcript or any portions

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thereof. Any motion brought pursuant to this provision must be accompanied by a

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competent declaration affirming that the movant has complied with the meet and

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confer requirements imposed by the preceding paragraph.

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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 (e.g.,

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to harass or impose unnecessary expenses and burdens on other parties) may expose

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the Challenging Party to sanctions. Unless the Designating Party has waived the

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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

disclosed or produced by another Party or by a Non-Party in connection with this case
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only for prosecuting, defending, or attempting to settle this litigation. Such Protected

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

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

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must comply with the 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 password-protected form that ensures that access is limited to the

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persons 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 “CONFIDENTIAL”

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only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as

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

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necessary to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A;

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

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the 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 to whom

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);

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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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and Professional Vendors to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

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(f) during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to
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Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered

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by the court. Pages of transcribed deposition testimony or exhibits to depositions that

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reveal Protected Material must be separately bound by the court reporter and may not

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be disclosed to anyone except as permitted under this Stipulated Protective Order;

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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”

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or “HIGHLY CONFIDENTIAL – SOURCE CODE” 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 “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

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– OUTSIDE COUNSEL’S EYES ONLY” or “HIGHLY CONFIDENTIAL –

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SOURCE CODE” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as

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

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necessary to disclose the information for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A;

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(b) In the case of information or items designated as “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” Designated House Counsel of the

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Receiving Party (1) who has no involvement in competitive decision-making, (2) to

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whom disclosure is reasonably necessary for this litigation, (3) who has signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom the

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procedures set forth in paragraph 7.4(a)(1), below, have been followed;

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(c) 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(a)(2), 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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and Professional Vendors to whom disclosure is reasonably necessary for this

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litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A); and

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(f) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.

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7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

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– OUTSIDE COUNSEL’S EYES ONLY” or “HIGHLY CONFIDENTIAL –

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SOURCE CODE” Information or Items to Designated House Counsel or Experts.

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(a)(1) Unless otherwise ordered by the court or agreed to in writing by

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the Designating Party, a Party that seeks to disclose to Designated House Counsel any

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information or item that has been designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make a written

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request to the Designating Party that (1) sets forth the full name of the Designated

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House Counsel and the city and state of his or her residence, and (2) describes the

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Designated House Counsel’s current and reasonably foreseeable future primary job

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duties and responsibilities in sufficient detail to determine if House Counsel is

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involved, or may become involved, in any competitive decision-making. Designated

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House Counsel who receives “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” information pursuant to this Order shall promptly disclose any changes in job

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duties or responsibilities that may affect Designated House Counsel’s involvement in

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any competitive decision-making process prior to final disposition of the litigation.

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(a)(2) Unless otherwise ordered by the court or agreed to in writing by

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the 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 “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE
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COUNSEL’S EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”

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pursuant to paragraph 7.3(c) first must make a written request to the Designating Party

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

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ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE

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COUNSEL’S EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”

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information that the Receiving Party seeks permission to disclose to the Expert, (2)

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sets forth the full name of the Expert and the city and state of his or her primary

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residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s

9

current employer(s), (5) identifies each person or entity from whom the Expert has

10

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

11

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

12

at any time during the preceding five years,1 and (6) identifies (by name and number

13

of the case, filing date, and location of court) any litigation in connection with which

14

the Expert has offered expert testimony, including through a declaration, report, or

15

testimony at a deposition or trial, during the preceding five years.

16

(b) A Party that makes a request and provides the information specified

17

in the preceding respective paragraphs may disclose the subject Protected Material to

18

the identified Designated House Counsel or Expert unless, within 7 days of delivering

19

the request, the Party receives a written objection from the Designating Party. Any

20

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

21

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

22

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

23

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

24
25
26
27
28

1

If the Expert believes any of this information is subject to a confidentiality obligation
to a third-party, then the Expert should provide whatever information the Expert
believes can be disclosed without violating any confidentiality agreements, and the
Party seeking to disclose to the Expert shall be available to meet and confer with the
Designating Party regarding any such engagement.
15

1

reached, the Party seeking to make the disclosure to Designated House Counsel or the

2

Expert may file a motion as provided in Civil Local Rule 37 (and in compliance with

3

Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any

4

such motion must describe the circumstances with specificity, set forth in detail the

5

reasons why the disclosure to Designated House Counsel or the Expert is reasonably

6

necessary, assess the risk of harm that the disclosure would entail, and suggest any

7

additional means that could be used to reduce that risk. In addition, any such motion

8

must be accompanied by a competent declaration describing the parties’ efforts to

9

resolve the matter by agreement (i.e., the extent and the content of the meet and confer

10

discussions) and setting forth the reasons advanced by the Designating Party for its

11

refusal to approve the disclosure.

12

In any such proceeding, the Party opposing disclosure to Designated House

13

Counsel or the Expert shall bear the burden of proving that the risk of harm that the

14

disclosure would entail (under the safeguards proposed) outweighs the Receiving

15

Party’s need to disclose the Protected Material to its Designated House Counsel or

16

Expert.

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

8.

PROSECUTION AND ACQUISITION BAR
(a) Absent written consent from the Producing Party, any individual who

receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” or
“HIGHLY CONFIDENTIAL – SOURCE CODE” information (collectively
“HIGHLY SENSITIVE INFORMATION”) shall not advise on, consult on, prepare,
prosecute, supervise, or assist in the preparation or prosecution of any patent
application, specifications, claims, and/or responses to office actions, or otherwise
affect the scope of claims in patents or patent applications relating to (1) user singlesign-on operations within a federated computer environment, (2) storing, delivering,
and presenting applications along with targeted advertising in interactive services
16

1

provided on a computer network, (3) storing and delivering data objects for presenting

2

applications along with command functions in an interactive service provided on a

3

computer network, (4) displaying objects in multiple layers organized in a layer order,

4

(5) producing and/or storing a promotion list of promotion instances in an electronic

5

medium for a promotion management campaign, (6) geo-spatial and list-based

6

mapping systems with coordinated map and list elements, and/or (7) retrieving and

7

comparing image data to generate a map based on that data, including without

8

limitation the patents asserted in this action and any patent or application claiming

9

priority to or otherwise related to the patents asserted in this action, before any foreign

10

or domestic agency, including the United States Patent and Trademark Office (“the

11

Patent Office”). This provision does not prohibit Plaintiff’s counsel of record or

12

experts in this litigation from participating in or representing it in reexamination

13

proceedings, Post-Grant Review proceedings, Inter Partes Review proceedings, or

14

Covered Business Method Review proceedings involving any patent, including the

15

patents-in-suit, provided they (1) do not rely upon or use, directly or indirectly,

16

Defendant’s HIGHLY SENSITIVE MATERIAL in those proceedings and (2) do not

17

advise on, consult on, prepare, draft, or edit any amendment to specifications or claims

18

in those proceedings. Further, Plaintiff’s counsel of record or experts in this litigation

19

may not reveal Defendant’s HIGHLY SENSITIVE MATERIAL to any

20

reexamination, inter parties review, or covered business method review counsel or

21

agent. These prohibitions are not intended to and shall not preclude counsel from

22

participating in proceedings on behalf of a Party challenging the validity of any patent.

23

Nothing in this paragraph shall apply to any individual permitted to receive any other

24

Party’s Protected Material and who in compliance with the terms of this Protective

25

Order obtains, receives, has access to, or otherwise learns, in whole or in part, any

26

other Party’s HIGHLY SENSITIVE MATERIAL, if said HIGHLY SENSITIVE

27

MATERIAL is only of financial nature and not of a technical nature.

28

(b) In addition, any individual for or representing the parties who reviews
17

1

and/or learns, in whole or in part, any technical “HIGHLY SENSITIVE

2

INFORMATION” information under this Order shall not supervise/assist in the

3

acquisition of patents or patent applications related to the subjects listed in Section

4

8(a) on behalf of any entity that said individual knows or has reason to know is

5

asserting or plans to assert claims of patent infringement against the Producing Party.

6

(c) This Prosecution and Acquisition Bar shall begin when access to

7

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

8

CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY” or “HIGHLY

9

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

10

individual and shall end two (2) years after final termination of this action, including

11

all appeals.

12

9.

SOURCE CODE

13

(a)

To the extent production of source code becomes necessary in this

14

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

15

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

16

source code.

17

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL –

18

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

19

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, including the

20

Prosecution and Acquisition Bar set forth in Section 8, and may be disclosed only to

21

the individuals to whom “HIGHLY CONFIDENTIAL – SOURCE CODE”

22

information may be disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception

23

of Designated House Counsel.

24

(c)

Any source code produced in discovery shall be made available for

25

inspection, in a format allowing it to be reasonably reviewed and searched, during

26

normal business hours or at other mutually agreeable times, at an office of the

27

Producing Party’s counsel or another mutually agreed upon location. The source code

28

shall be made available for inspection on a secured computer in a secured room
18

1

without Internet access or network access to other computers, and the Receiving Party

2

shall not copy, remove, or otherwise transfer any portion of the source code onto any

3

recordable media or recordable device. The Producing Party may visually monitor the

4

activities of the Receiving Party’s representatives during any source code review, but

5

only to ensure that there is no unauthorized recording, copying, or transmission of the

6

source code. The Receiving Party shall keep a paper log indicating the names of any

7

individuals inspecting the source code and dates and times of inspection, and the

8

names of any individuals to whom paper copies of portions of source code are

9

provided.

10

(d)

The Receiving Party may request paper copies of limited portions

11

of source code that are reasonably necessary for the preparation of court filings,

12

pleadings, expert reports, or other papers, or for deposition or trial, but shall not request

13

paper copies for the purposes of reviewing the source code other than electronically as

14

set forth in paragraph (c) in the first instance. The Producing Party shall provide all

15

such source code in paper form including bates numbers and the label “HIGHLY

16

CONFIDENTIAL - SOURCE CODE.” The Producing Party may challenge the

17

amount of source code requested in hard copy form pursuant to the dispute resolution

18

procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the

19

“Challenging Party” and the Receiving Party is the “Designating Party” for purposes

20

of dispute resolution.

21

(e)

The Receiving Party shall maintain a record of any individual who

22

has inspected any portion of the source code in electronic or paper form. The Receiving

23

Party shall maintain all paper copies of any printed portions of the source code in a

24

secured, locked area. The Receiving Party shall not create any electronic or other

25

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

26

the paper copies into any electronic format. The Receiving Party shall only make

27

additional paper copies if such additional copies are (1) necessary to prepare court

28

filings, pleadings, or other papers (including a testifying expert’s expert report), (2)
19

1

necessary for deposition, or (3) otherwise necessary for the preparation of its case.

2

Any paper copies used during a deposition shall be retrieved by the Producing Party

3

at the end of each day and must not be given to or left with a court reporter or any

4

other unauthorized individual.

5

10.

6

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

7

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

8

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

9

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

10

ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES ONLY”

11

or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must:

12
13

(a) promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

14

(b) promptly notify in writing the party who caused the subpoena or order

15

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

16

or order is subject to this Protective Order. Such notification shall include a copy of

17

this Stipulated Protective Order; and

18
19

(c) cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

20

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

21

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

22

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

23

EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL’S EYES

24

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

25

by the court from which the subpoena or order issued, unless the Party has obtained

26

the Designating Party’s permission. The Designating Party shall bear the burden and

27

expense of seeking protection in that court of its confidential material – and nothing

28

in these provisions should be construed as authorizing or encouraging a Receiving
20

1

Party in this action to disobey a lawful directive from another court.

2

11.

3

A

NON-PARTY’S

PROTECTED

MATERIAL

SOUGHT

TO

BE

PRODUCED IN THIS LITIGATION

4

(a)

The terms of this Order are applicable to information produced by

5

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

6

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

7

– OUTSIDE COUNSEL’S EYES ONLY” or “HIGHLY CONFIDENTIAL –

8

SOURCE CODE.” Such information produced by Non-Parties in connection with this

9

litigation is protected by the remedies and relief provided by this Order. Nothing in

10

these provisions should be construed as prohibiting a Non-Party from seeking

11

additional protections.

12

(b)

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

13

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

14

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

15

confidential information, then the Party shall:

16

1. promptly notify in writing the Requesting Party and the Non-Party

17

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

18

with a Non-Party;

19

2. promptly provide the Non-Party with a copy of the Stipulated

20

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

21

specific description of the information requested; and

22
23
24

3. make the information requested available for inspection by the
Non-Party.
(c)

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

25

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

26

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

27

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

28

Party shall not produce any information in its possession or control that is subject to
21

1

the confidentiality agreement with the Non-Party before a determination by the court.

2

Absent a court order to the contrary, the Non-Party shall bear the burden and expense

3

of seeking protection in this court of its Protected Material.

4

12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5

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

6

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

7

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

8

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

9

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

10

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

11

and (d) request such person or persons to execute the “Acknowledgment and

12

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

13

13.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

14

PROTECTED MATERIAL

15

If information is produced in discovery that is subject to a claim of privilege or

16

of protection as trial-preparation material, the party making the claim may notify any

17

party that received the information of the claim and the basis for it. After being

18

notified, a party must promptly return or destroy the specified information and any

19

copies it has and may not sequester, use or disclose the information until the claim is

20

resolved. This provision is not intended to modify whatever procedure may be

21

established in an e-discovery order that provides for production without prior privilege

22

review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties

23

reach an agreement on the effect of disclosure of a communication or information

24

covered by the attorney-client privilege or work product protection, the parties may

25

incorporate their agreement in the stipulated protective order submitted to the court.

26

14.

27
28

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.
22

1

14.2 Right to Assert Other Objections. By stipulating to the entry of this

2

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

3

disclosing or producing any information or item on any ground not addressed in this

4

Stipulated Protective Order. Similarly, no Party waives any right to object on any

5

ground to use in evidence of any of the material covered by this Protective Order.

6

14.3 Export Control. Disclosure of Protected Material shall be subject to all

7

applicable laws and regulations relating to the export of technical data contained in

8

such Protected Material, including the release of such technical data to foreign persons

9

or nationals in the United States or elsewhere. The Producing Party shall be

10

responsible for identifying any such controlled technical data, and the Receiving Party

11

shall take measures necessary to ensure compliance.

12

14.4 Filing Protected Material. Without written permission from the

13

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

14

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

15

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

16

Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court

17

order authorizing the sealing of the specific Protected Material at issue. Pursuant to

18

Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that

19

the Protected Material at issue is privileged, protectable as a trade secret, or otherwise

20

entitled to protection under the law. If a Receiving Party's request to file Protected

21

Material under seal pursuant to Civil Local Rule 79-5 is denied by the court, then the

22

Receiving Party may file the Protected Material in the public record unless otherwise

23

instructed by the court.

24

15.

FINAL DISPOSITION

25

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

26

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

27

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

28

includes all copies, abstracts, compilations, summaries, and any other format
23

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

Notwithstanding this provision, Counsel are entitled to retain an archival copy of all

9

pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

10

correspondence, deposition and trial exhibits, expert reports, attorney work product,

11

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

12

Material. Any such archival copies that contain or constitute Protected Material remain

13

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

14
15
16
17
18

Pursuant to the parties’ Stipulation (Dkt. 7) and for good cause shown, IT IS
SO ORDERED.
DATED: March 26, 2020

19
20
21

_________________________________
JOHN D. EARLY
United States Magistrate Judge

22
23
24
25
26
27
28
24

1

EXHIBIT A

2
3

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of

4

_____________________________________ [print or type full address], declare

5

under penalty of perjury that I have read in its entirety and understand the Stipulated

6

Protective Order that was issued by the United States District Court for the Central

7

District of California on [date] in the case of International Business Machines Corp.

8

v. Zillow Group, Inc., Case No. 8:19-CV-01777-JLS-JDE. I agree to comply with

9

and to be bound by all the terms of this Stipulated Protective Order and I understand

10

and acknowledge that failure to so comply could expose me to sanctions and

11

punishment in the nature of contempt. I solemnly promise that I will not disclose in

12

any manner any information or item that is subject to this Stipulated Protective Order

13

to any person or entity except in strict compliance with the provisions of this Order.

14

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

15

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

16

Stipulated Protective Order, even if such enforcement proceedings occur after

17

termination of this action.

18

I hereby appoint __________________________ [print or type full name] of

19

____________________________________________ [print or type full address and

20

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

21

this action or any proceedings related to enforcement of this Stipulated Protective

22

Order.

23
24

Date: _________________________________

25

City and State where sworn and signed: _________________________________

26

Printed name: ______________________________

27
28

Signature: __________________________________
25