Haptix Solutions LLC v. Microsoft Corporation

Filing 26

PROTECTIVE ORDER by Magistrate Judge John D. Early. re Stipulation for Protective Order 25 (mba)

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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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HAPTIX SOLUTIONS LLC, a
California limited liability company,
Plaintiff,

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Case No. 8:24-cv-00428-JWH-JDE
PROTECTIVE ORDER

v.
MICROSOFT CORPORATION, a
Washington corporation,

[Note Changes by the Court]

Defendant.

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Based on the parties’ Stipulation (Dkt. 25, 25-1) and for good cause shown, the

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Court finds and orders as follows.

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1.

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DEFINITIONS
1.1

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

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

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support staff).

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1.2

Non-Party: any natural person, partnership, corporation, association, or

other legal entity not named as a Party to this action.
1.3

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

the medium or manner in which it is generated, stored, or maintained (including, among
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other things, testimony, transcripts, and tangible things), that are produced or generated

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in disclosures or responses to discovery in this matter.

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1.4

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

Discovery Material in this action.
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Protected Material: any Disclosure or Discovery Material that is

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designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” or

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“Highly Confidential – Source Code” or “Protected Data.”

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1.6

Designating Party: a Party, person or entity designating documents or

information as Protected Information under this Order.
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Receiving Party: a Party, that receives Disclosure or Discovery Material

from a Producing Party.
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Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
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Counsel (without qualifier): Outside Counsel of Record and In-house

Counsel (as well as their support staff).

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1.10 In-house Counsel: licensed U.S. attorneys who are employees or officers

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of a party to this action. In-house Counsel does not include Outside Counsel of Record

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or any other outside counsel.

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1.11 Outside Counsel of Record: attorneys (as well as their support staff) who

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reside in the U.S., are members of a bar of a U.S. state, who are not employees of a

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Party 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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1.12 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 as

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

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of a Party or of a Party’s competitor, and (3) at the time of retention, is not anticipated

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to become an employee of a Party or of a Party’s competitor.
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1.13 “CONFIDENTIAL” Information or Items: includes all non-public

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information that the Designating Party reasonably believes should be protected from

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public disclosure because such information (i) is proprietary to the Designating Party,

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or other person e.g., a trade secret or other confidential research, development or

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commercial information; or (ii) implicates an individual’s legitimate expectation of

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privacy. All copies, abstracts, excerpts, analyses or other writings that contain, reflect,

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reveal, suggest or otherwise disclose CONFIDENTIAL information shall also be

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deemed CONFIDENTIAL information.

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CONFIDENTIAL information shall not retain that status after any ruling by the Court

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Information originally designated as

denying such status to it.
1.14 “HIGHLY

CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

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

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Designating Party reasonably believes contains highly sensitive business or personal

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information, the disclosure of which to another Party or Non-Party would create a

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substantial risk of significant competitive or commercial disadvantage to the

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Designating Party that could not be avoided by less restrictive means, including

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confidential information received from Non-Parties.

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1.15 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:

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extremely sensitive “Confidential Information or Items” representing or containing

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computer code (i.e., computer instructions and data definitions expressed in a form

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suitable for input to an assembler, compiler, or other translator) and associated

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comments and revision histories, formulas, engineering specifications or schematics

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

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hardware designs, disclosure of which to another Party or Non-Party would create a

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

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1.16 “Protected Data”: refers to any information that a Party or Non-Party

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reasonably believes to be subject to federal, state or foreign Data Protection Laws or

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other privacy obligations.

Protected Data constitutes highly sensitive materials
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requiring special protection. Examples of such Data Protection Laws include, without

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limitation, The Gramm-Leach-Biley Act, 15 U.S.C. § 6801 et seq. (financial

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information); The Health Insurance Portability and Accountability Act (“HIPAA”) and

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the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164 (medical

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information); Regulation (EU) 2016/679 Of the European Parliament and of the

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Council of 27 April 2016 on the Protection of Natural Persons with Regard to the

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Processing of Personal Data and on the Free Movement of Such Data, also known as

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the General Data Protection Regulation (“GDPR”). Protected Data may be designated

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and treated as HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.

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2.

SCOPE

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

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

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

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

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Counsel that might reveal Protected Material. Any use of Protected Material at trial

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shall be governed by a separate agreement or order.

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3.

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DURATION AND TERMINATION
3.1

This Order shall continue in effect after the termination of this action and

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continue to be binding upon all persons to whom Protected Material is disclosed

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hereunder unless a Designating Party agrees otherwise in writing or a court order directs

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otherwise.

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3.2

Within sixty (60) days after a Party’s case is terminated (including all

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appeals), or such other time as the Designating Party agrees in writing, the Receiving

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Party shall use commercially reasonable efforts to either return or destroy all

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documents, objects and other materials produced as or designated as Protected Material,

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including all reproductions, including but not limited to that given to experts and inside

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counsel. Counsel responsible for the destruction shall certify to counsel for the

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Designating Party that all such materials have been destroyed to the extent practicable.
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3.3

Notwithstanding the provision of 3.2, no person shall be required to delete

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information that may reside on their respective electronic disaster recovery or archive

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systems or information that may reside in electronic files which are not reasonably

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accessible.

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pleadings, filings, transcripts, expert reports and exhibits (but not documents/materials

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merely cited), affidavits, and correspondence containing material designated Protected

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Material, (b) documents, things, copies and samples to the extent they include or reflect

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receiving attorney’s work product, and (c) one copy of pleadings or other papers filed

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with the Court or served in the course of litigation (and exhibits thereto), the

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depositions, the deposition exhibits and the trial record, so long as this Order will

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continue to govern any such retained materials.

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4.

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Additionally, outside counsel for each Party may retain (a) copies of

DESIGNATING PROTECTED MATERIAL
4.1

Method of Designating Static Image Files. With respect to documents or

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copies containing Protected Material produced as a static image, the Designating Party

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shall mark the initial page and the page or pages on which Confidential Information

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appears with the legend “CONFIDENTIAL” and the page or pages on which any Highly

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Confidential Information or Protected Data appears as “HIGHLY CONFIDENTIAL –

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

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as appropriate. If a party initially produces documents for inspection (e.g., because of

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the volume of materials and to reduce unnecessary copying), in lieu of marking the

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original of a document which contains Confidential Information, Highly Confidential

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Information or Protected Data prior to such an inspection, counsel for the producing

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Party may in writing designate documents or things being produced for inspection as

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CONFIDENTIAL, HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or

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HIGHLY CONFIDENTIAL – SOURCE CODE as appropriate, thereby making them

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subject to this Order; however, copies of such documents thereafter provided must be

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marked by the Designating Party, if appropriate, in accordance with this Order at the

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time copies are formally produced.

Tangible objects constituting or containing

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Confidential Information or Highly Confidential Information may be designated

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Confidential Information or Highly Confidential Information by affixing to the object

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or its container, a label or tag marked “Confidential – Subject to Protective Order” or

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“Highly Confidential – Attorneys Eyes Only – Subject to Protective Order” or “Highly

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Confidential – Source Code – Subject to Protective Order” as appropriate.

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4.2

Designating Native Files. With respect to documents containing Protected

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Material produced in Native Format, the designating party shall include the appropriate

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confidentiality designation in the filename.

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4.3

With respect to all documents produced that contain Protected Material,

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the Designating Party will also include in the Load File the appropriate designation that

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includes the level of protection (e.g., “Confidential,” “Highly Confidential – Attorneys

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Eyes Only,” or “Highly Confidential – Source Code”).

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4.4

Designation and Counter-Designation of Third Party or other Party Files.

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A Designating Party may designate, or counter designate with a higher designation,

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information or items produced by another Party or non-party that contains or is derived

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from the Designating Party’s own Protected Material.

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designations are subject to the restrictions set forth in the Order. Each Party that

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designates or counter designates such information or items will be treated as the

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Designating Party for purposes of this Order.

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4.5

Designations or counter-

Correction of Inadvertent Failures to Designate.

A Party or person

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producing information in this litigation who produces or provides Protected Material

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without designating it Protected Material as provided in this Order, may upon written

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or on-the-record notification to the Receiving Party or parties designate the document,

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thing, other discovery information, response or testimony as Protected Material in

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accordance with the provisions of this Order. The Receiving Party or Parties shall treat

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such documents, things, information, responses and testimony as Protected Material

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from the date such notice is received in accordance with this Order. No Party shall be

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deemed to have violated this Order if, prior to notification of any later designation, such
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material has been disclosed or used in a manner inconsistent with the later designation.

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Upon notice to the receiving Party of such failure to designate, the Receiving Party shall

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reasonably cooperate to correct any disclosure to maintain the confidentiality of the

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previously undesignated material, without prejudice. Within five (5) days of providing

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written notice that a document or documents were not designated Protected Material

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under this provision, the Designating Party must provide the Receiving Party with

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replacement copies of such documents containing the proper designation. Upon receipt

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of such replacement copies, the receiving party shall immediately destroy any copies of

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the unmarked or incorrectly marked documents, things, information responses, or

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testimony; except that the Receiving Party shall not be obliged to destroy any mis-

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designated material that has become part of the record of this litigation.

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4.6

Right to Seek Additional Protections. This Order is entered without

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prejudice to the right of any Party to seek additional protections from the Court as may

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be necessary under particular circumstances.

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5.

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CHALLENGING PROTECTED MATERIAL DESIGNATIONS
5.1

Timing of Challenges.

Any Party or Non-Party may challenge a

designation of confidentiality subject to the operative Scheduling Order.
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Meet and Confer. The Challenging Party shall initiate the dispute

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

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

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

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Designation is being made under the Protective Order. In the notice, the Challenging

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Party must explain the basis for its belief that the designation was not proper. The

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Designating Party must respond within 5 business days of receiving the notice to either

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modify the designation as requested or explain why it believes the chosen designation

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is appropriate. A Challenging Party may proceed to the next stage of the challenge if

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the Designating Party fails to respond within the time limits above or after the

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Designating Party has confirmed that it will maintain the challenge following a meet

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and confer session that complies with Local Civil Rule 37-1.

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5.3

Judicial Intervention. If the Parties cannot resolve a challenge after a good

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faith effort to resolve the issues informally, the Challenging Party shall proceed under

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Local Civil Rule 37-2, et seq. to challenge the designation via a joint stipulation. The

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burden of persuasion in any such challenge proceeding shall be on the Designating

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Party. Frivolous challenges or frivolous designations and those made for an improper

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purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties)

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may expose the Challenging Party or the Producing Party to sanctions. The Parties shall

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continue to afford the material in question the level of protection to which it is entitled

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under the Producing Party’s designation until the court rules on the challenge.

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6.

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ACCESS TO AND USE OF PROTECTED MATERIAL
6.1

Basic Principles. A Receiving Party may use Protected Material that is

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disclosed or produced by another Party or by a Non-Party in connection with this 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 3 above. Protected Material must be stored

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and maintained by a Receiving Party at a location and in a secure manner that

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reasonably ensures that access is limited to the persons authorized under this Order.

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6.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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

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may disclose any information or item designated “CONFIDENTIAL” only to:

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6.2.1 The Receiving Party’s Outside Counsel in this action, as well as

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employees of said Outside Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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6.2.2 In-house Counsel and their support staff of the Receiving Party to
whom disclosure is reasonably necessary for this litigation;
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6.2.3 No more than three officers, directors, or employees (excluding In-

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house Counsel and their support staff) of the Receiving Party to whom disclosure is

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

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Agreement to Be Bound” (Exhibit A);

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6.2.4 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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6.2.5 The court and its personnel;

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6.2.6 Court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for

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

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(Exhibit A);

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6.2.7 During their depositions, witnesses in the action to whom disclosure

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is reasonably necessary , 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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6.2.8 The author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information; and

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6.2.9 Other persons whom the Designating Party agrees in writing may
view the information.
6.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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

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

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a 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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– SOURCE CODE” only to certain groups of individuals defined below, and all such

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designated information or items shall be maintained securely within the United States
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of America, and may not be accessed by any entity or individual outside of the United

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States of America. Such material may be accessed by:

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6.3.1 The Receiving Party’s Outside Counsel in this action, as well as

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employees of said Outside Counsel to whom it is reasonably necessary to disclose the

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information for this litigation;

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6.3.2 In-House Counsel of the Receiving Party (and their support staff) to

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whom disclosure is reasonably necessary for this litigation, except that such In-House

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Counsel (and their support staff) shall not have access to any information or item

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designated “HIGHLY CONFIDENTIAL – SOURCE CODE” absent agreement of the

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Parties;

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6.3.3 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 Agreement

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

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6.4.2, below, have been followed;

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6.3.4 The court and its personnel;

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6.3.5 Court reporters and their staff, professional jury or trial consultants,

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mock jurors, and Professional Vendors to whom disclosure is reasonably necessary for

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

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(Exhibit A);

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6.3.6 The author or recipient of a document containing the information or
a custodian or other person who otherwise possessed or knew the information; and

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6.3.7 Other persons whom the Designating Party agrees in writing may
view the information.
6.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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

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SOURCE CODE” Information or Items to Experts.

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6.4.1 Unless otherwise ordered by the court or agreed to in writing by the

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Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order)
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any information or item that has been designated “HIGHLY CONFIDENTIAL –

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

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pursuant to paragraph 6.3.3 first must make a written request to the Designating Party

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that (1) sets forth the full name of the Expert and the city and state of his or her primary

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residence, (2) attaches a copy of the Expert’s current resume, (3) identifies the Expert’s

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current employer(s), (4) identifies each person or entity from whom the Expert has

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

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

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at any time during the preceding five years, and (5) identifies (by name and number of

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

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Expert has testified, including through a declaration, report, or testimony at a deposition

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or trial, during the preceding five years. If the Expert is under a confidentiality

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obligation not to disclose any work or services performed in the past five years, the

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written disclosure under subsection (5) must include: whether such services or funding

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were outside the field of the Designating Party’s technology at issue in the case and

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whether such work or services concerned any party to this case or its predecessors or

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successors (merged, acquired or otherwise), parents, divisions, subsidiaries, associated

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organizations, joint ventures, and affiliates thereof.

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6.4.1.1

A Party that makes a request and provides the

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information specified in the preceding respective paragraphs may disclose the subject

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Protected Material to the Expert unless, within 14 days of delivering the request, the

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

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

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6.4.1.2

A Party that receives a timely written objection must

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meet and confer with the Designating Party (through direct voice to voice dialogue) to

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

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

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motion or other document in compliance with the court’s procedures seeking
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permission from the court to do so. Any such motion must describe the circumstances

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with specificity, set forth in detail the reasons why the disclosure to the Expert is

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

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

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such motion must be accompanied by a competent declaration describing the parties’

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

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and confer discussions) and setting forth the reasons advanced by the Designating Party

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for its refusal to approve the disclosure.

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In any such proceeding, the Party opposing disclosure to the Expert shall bear the

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

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

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Material to its Designated In-house Counsel or Expert.

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6.5

Source Code

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6.5.1 To the extent production of source code becomes necessary in this

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

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

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source code.

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6.5.2 Protected Material designated as “HIGHLY CONFIDENTIAL –

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, and, may be disclosed

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only to the individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY” information may be disclosed, as set forth in Paragraphs 6.3 through 6.3.7.

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6.5.3 Any source code produced in discovery shall be made available for

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inspection on a computer in a format and environment allowing it to be reasonably

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reviewed and searched during normal business hours (9 a.m. to 5 p.m. local time) or at

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other mutually agreeable times, at an office of the Producing Party’s counsel of record

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or other mutually agreed upon location. The source code made available for inspection

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shall be provided on a secured computer in a secured room without Internet access or
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network access to other computers, and the Receiving Party shall not copy, remove, or

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otherwise transfer any portion of the source code onto any recordable media or

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recordable device. The Producing Party may visually monitor the activities of the

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Receiving Party’s representatives during any source code review, but only to ensure

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that there is no unauthorized recording, copying, or transmission of the source code.

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Electronic devices including cell phones and laptops, and other devices capable of

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copying, photographing, or recording, are not permitted to be brought by reviewers or

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representatives of the Receiving Party into the source code review room. Notes may

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only be taken in bound notebooks that prominently contain a legend on the cover

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identifying the case name, number, contact information of the note taker, and the phrase

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“HIGHLY CONFIDENTIAL – SOURCE CODE.”

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6.5.4 A list of names of persons who will review Source Code Material

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on the standalone computer will be provided to the Producing Party in conjunction with

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any written notice requesting inspection. Prior to the first inspection of any Source Code

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Material made available by the Producing Party after the code is available for

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inspection, the Receiving Party shall provide five business days’ notice that it wishes to

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inspect Source Code Material. The Receiving Party shall provide three business days’

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notice prior toa any additional inspections. Requests for access may span multiple

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consecutive days for the same notice. Any requests shall include the information

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reasonably needed to access the building and comply with its security requirements,

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including the names of the reviewers and expected times of arrival. To the extent

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practical and reasonable, the Parties agree to accommodate requests for inspection on a

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shorter timeframe, if the needs of the case and case schedule require more immediate

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access by the Receiving Party to the Source Code Material. Similarly, the Receiving

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Party shall make good faith efforts to reasonably accommodate scheduling limitations

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identified by the Producing Party.

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6.5.5 During any source code review session, the Receiving Party may

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print portions of source code as PDF files to be saved in a designated folder created by
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the Producing Party on the Source Code Computer. The Receiving Party may print to

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PDF such portions only to the extent necessary for the preparation of court filings,

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pleadings, expert reports, or other papers, or for deposition or trial. The Receiving Party

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may print to PDF up to 150 PDF pages of source code, of which no more than 15 PDF

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pages may comprise contiguous code. In no event shall source code be printed for the

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purpose of reviewing source code in the first instance outside of the Source Code

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Computer and attendant protections. If the Receiving Party reasonably believes in good

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faith that it is necessary to print more PDF pages of Source Code Material than allowed

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by these limits, the parties shall promptly meet and confer to resolve the issue. Upon

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request by the Receiving Party, the Producing Party shall print the identified PDF source

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code pages on colored paper bearing the designation “HIGHLY CONFIDENTIAL –

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SOURCE CODE” and Bates numbers. Within three business days of a request for such

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production, the hard copy printed PDF pages will be sent for delivery upon signature

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via courier, FedEx, or similar overnight carrier service to the Receiving Party. To the

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extent a Receiving Party conducts source code review across multiple consecutive days,

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a request for production should be made only at the conclusion of each consecutive day

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session.

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6.5.6 The Receiving Party shall be permitted to make no more than 3

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additional hard copies of any Source Code PDF files produced pursuant to 6.5.5. Each

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of these additional copies shall be designated and clearly labeled “HIGHLY

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CONFIDENTIAL – SOURCE CODE,” and the Receiving Party shall maintain a log of

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all such copies, which it must produce to the Producing Party upon request. No other

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copies of source code shall be made unless otherwise allowed herein;

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6.5.7 Any Receiving Party’s outside counsel or Experts who obtain source

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code material pursuant to the provisions herein, shall be responsible for the security of

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said material and ensure that it is always maintained in a secured and locked area.

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6.5.8 The Producing Party may challenge the amount of source code

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requested in hard copy form pursuant to the dispute resolution procedure and
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timeframes set forth in Section 5 above, whereby the Producing Party is the

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

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dispute resolution.

4

6.5.9 The Receiving Party shall maintain a record of any individual who

5

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

6

Party shall maintain derivative materials created using source code, such as any notes

7

of an Expert, in a secured, locked area. The Receiving Party shall only make additional

8

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

9

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

10

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

11

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

12

end of each day and may not be given to or left with a court reporter or any other person.

13

6.5.10 To the extent the Receiving Party requests additional source code

14

review tools beyond those the Producing Party shall pre-install to permit reasonable

15

review of its source code, the Receiving Party shall make the request at least 7 days

16

prior to the date such tools are requested to be available, and the Receiving Party shall

17

provide any necessary licenses. The Receiving Party shall not erase, load, install,

18

compile, or otherwise modify any program, or request that the Producing Party do so,

19

on the Source Code Computer without first submitting a written request and obtaining

20

the Producing Party’s agreement in writing.

21
22

6.5.11 Images or copies of source code shall not be included in
correspondence between the parties.

23

6.5.12 Upon final disposition of this action, the Producing Party may

24

request service of: (1) the record of all paper copies of source code made by the

25

Receiving Party; (2) the record of individuals who inspected any portion of the source

26

code; and (3) a certification in writing that all copies of source code, including any

27

materials containing source code information including source code reviewer or expert

28

witness notes, were destroyed..
14
PROTECTIVE ORDER

1

7.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2

IN OTHER LITIGATION

3

7.1

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

4

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

5

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

6

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

7
8

7.1.1 Promptly notify in writing the Designating Party. Such notification
shall include a copy of the subpoena or court order;

9

7.1.2 Promptly notify in writing the Party who caused the subpoena or

10

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

11

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

12

copy of this Stipulated Protective Order; and

13
14

7.1.3 Cooperate with respect to all reasonable procedures sought to be
pursued by the Designating Party whose Protected Material may be affected.

15

7.2

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

16

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

17

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

18

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

19

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

20

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

21

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

22

these provisions should be construed as authorizing or encouraging a Receiving Party

23

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

24

8.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE

25

PRODUCED IN THIS LITIGATION

26

8.1

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

27

Party

28

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

in

this

action

and

designated

as

15
PROTECTIVE ORDER

“CONFIDENTIAL,”

“HIGHLY

1

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

2

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

3

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

4

protections.

5

8.2

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

6

produce a Non-Party’s Protected Material in its possession, and the Party is subject to

7

an agreement with the Non-Party not to produce the Non-Party’s protected material,

8

then the Party shall:

9

8.2.1 Promptly notify in writing the Requesting Party and the Non-Party

10

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

11

with a Non-Party;

12

8.2.2 Promptly provide the Non-Party with a copy of the Protective Order

13

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

14

of the information requested; and

15
16

8.2.3 Make the information requested available for inspection by the NonParty.

17

8.3

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

18

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

19

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

20

request. If the Non-Party timely seeks a protective order, the Receiving Party shall not

21

produce any information in its possession or control that is subject to the confidentiality

22

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

23

to the contrary, the Non-Party shall bear the burden and expense of seeking protection

24

in this court of its Protected Material.

25

9.

26

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
9.1

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

27

disclosed or made available Protected Material to any person or in any circumstance not

28

authorized under this Stipulated Protective Order, the Receiving Party must
16
PROTECTIVE ORDER

1

immediately (a) notify in writing the Designating Party of the unauthorized disclosures,

2

(b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)

3

inform the person or persons to whom unauthorized disclosures were made of all the

4

terms of this Order, and (d) request such person or persons to execute the

5

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

6

10.

INADVERTENT PRODUCTION OF PRIVILEGED DOCUMENTS –

7

CLAWBACK

8

10.1 Pursuant to Federal Rule of Evidence 502(d) and the Court’s order at Dkt.

9

24, the inadvertent production of any attorney-client privileged or work product

10

protected documents or data (“Inadvertently Produced Privileged Material”) is not a

11

waiver in the pending case or in any other federal, state, or other proceeding. A Party

12

or person claiming privilege or other protections for an Inadvertently Produced

13

Privileged Document shall notify any and all Receiving Parties that received the

14

documents and provide sufficient information to the Receiving Party regarding the

15

asserted privilege(s), in the form of a privilege log pursuant to Rule 26(b)(5) of the

16

Federal Rules of Civil Procedure. Alternatively, if a Receiving Party discovers a

17

document that it believes to be an Inadvertently Produced Privileged Document, the

18

Receiving Party will promptly notify the Designating Party of what it believes to be the

19

Inadvertently Produced Privileged Document (no Receiving Party will be found in

20

violation of this Order for failing to identify an Inadvertently Produced Privileged

21

Document).

22

document, any Receiving Party must not use or disclose the Inadvertently Produced

23

Privileged Document in any way until the claim is resolved and must take reasonable

24

steps to retrieve the document if the Receiving Party disclosed it before being notified

25

of or discovering the inadvertent production. In addition, within (5) days of discovering

26

or being notified, any Receiving Party must return, or if it is not possible to return,

27

destroy the specified document and any copies. The Designating Party must retain a

28

copy of the document until the resolution or termination of this Case. A Party may

After discovering or being notified of an Inadvertently Produced

17
PROTECTIVE ORDER

1

move the Court for an order compelling production of the document, but such Party

2

may not assert as a ground for entering such an order the mere fact of inadvertent

3

production.

4

10.2 Nothing in this order overrides any attorney’s ethical responsibilities to

5

refrain from examining or disclosing materials that the attorney knows or reasonably

6

should know to be privileged and to inform the Disclosing Party that such materials

7

have been produced.

8

10.3 This Order is not intended to impose on a party a waiver of its right to

9

review its documents for privilege or any other reason (including to identify non-

10

responsive documents) and the existence of this Order cannot be used to compel a party

11

to produce documents without review. Moreover, this Order does not mean that the

12

cost of review should not be considered in whether any particular discovery is

13

disproportionate (i.e. that the marginal benefit of the discovery is not as great as the cost

14

of said discovery including review).

15

11.

FILING PROTECTED MATERIAL

16

11.1 This Order does not entitle the parties to file material under seal. Rather,

17

Local Civil Rule 79-5, et seq., sets forth the procedures that must be followed and the

18

standards that will be applied when a party seeks permission from the court to file

19

material under seal. There is a strong presumption that the public has a right of access

20

to judicial proceedings and records in civil cases. In connection with non-dispositive

21

motions, good cause must be shown to support a filing under seal. See Kamakana v.

22

City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir. 2006), Phillips v. Gen.

23

Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002), Makar-Welbon v. Sony

24

Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999) (even stipulated protective orders

25

require good cause showing), and a specific showing of good cause or compelling

26

reasons with proper evidentiary support and legal justification, must be made with

27

respect to Protected Material that a party seeks to file under seal. The mere designation

28

of material as Protected Material under this Order does not, without the submission of
18
PROTECTIVE ORDER

1

competent evidence establishing that the material sought to be filed under seal qualifies

2

as confidential, privileged, or otherwise protectable, constitute good cause. Further, if

3

a party requests sealing related to a dispositive motion or trial, then compelling reasons,

4

not only good cause, for the sealing must be shown, and the relief sought shall be

5

narrowly tailored to serve the specific interest to be protected. See Pintos v. Pacific

6

Creditors Ass’n, 605 F.3d 665, 677-79 (9th Cir. 2010). The Parties are directed to Local

7

Rule 79-5, et seq., for the procedures to request leave to file under seal material

8

designated by another party as protected under a protective order.

9

12.

USE AND CONTROL OF PROTECTED MATERIAL

10

12.1 All information as Protected Material to this Order and disclosed in this

11

litigation shall be used by a recipient thereof solely for the purposes of this litigation

12

and not for any business or competitive purposes or used in any other legal proceeding,

13

except as permitted by a court order, or as agreed by the parties. It shall be the duty of

14

each Party and each individual having notice of this Order to comply with this Order

15

from the time of such notice. At any time, a Party may move the Court to modify this

16

or any other provision of this Order upon a showing of good cause.

17
18

12.2 The restrictions and obligations set forth herein relating to information
designated as Protected Material, shall not apply to any information which:

19

12.2.1 The Parties (and, if another person produced Protected Material,

20

such person) agree or the Court rules, is already public knowledge or was improperly

21

designated by the Designating Party because it does not satisfy the definition of

22

Protected Material set forth in this Order;

23
24
25
26
27
28

12.2.2 Has become public knowledge other than as a result of disclosure
by a Receiving Party, or its employees or agents in violation of this Order;
12.2.3 Has come or shall come into a Receiving Party’s legitimate
possession independently of the Designating Party; or
12.2.4 Has been independently developed by or for the Party without use
of, or reference to, the other Party’s Protected Material, which shall remain Protected.
19
PROTECTIVE ORDER

1

12.3 Nothing in this Order limits any Receiving Party’s rights to use in briefs

2

or at trial or in any proceeding in this litigation, Protected Material of a Designating

3

Party, subject to the provisions in Section 6 above. Nor shall this Order prevent counsel

4

from examining a witness to determine whether he or she has knowledge of the subject

5

matter comprising Protected Material, so long as such examination shall be in a manner

6

that does not disclose the details of the Protected Material.

7

13.

SECURITY AND DATA BREACH

8

13.1 Any person in possession of another Party’s Protected Material shall

9

exercise the same care with regard to the storage, custody, or use of such Protected

10

Material as they would apply to their own material of the same or comparable

11

sensitivity, but no less than the reasonable precautions set forth in Section 13.2 below.

12

13.2 Receiving Parties must take reasonable precautions to protect Protected

13

Material from loss, misuse and unauthorized access, disclosure, alteration and

14

destruction. Such measures shall include:

15

13.2.1 Reasonably preventing unauthorized persons from gaining access

16

to Protected Material. In the case of Protected Material maintained in electronic format

17

this includes storing the data in a secure litigation support site(s) that applies standard

18

industry practices regarding data security, including but not limited to application of

19

access control rights to those entitled to access Protected Material under this Order

20

(physical access control);

21

13.2.2 Reasonably ensuring that Protected Material downloaded from a

22

litigation support site(s) in electronic format is stored only on device(s) (e.g. laptop,

23

tablet, smartphone, thumb drive, portable thumb drive) that are password protected

24

and/or encrypted with access limited to persons entitled to access Protected Material

25

under this Order. If the user is unable to password protect and/or encrypt the device,

26

then Protected Material shall be password protected and/or encrypted at the file level.

27

13.2.3 Reasonably preventing Protected Material from being used without

28

authorization (logical access control) including, but not limited to, the use of passwords;
20
PROTECTIVE ORDER

1

13.2.4 Reasonably ensuring that persons entitled to use Protected Material

2

gain access only to such Protected Material as they are entitled to access in accordance

3

with their access rights, and that, in the course of processing or use and after storage,

4

Protected Material cannot be read, copied, modified or deleted without authorization

5

(data access control);

6

13.2.5 Reasonably ensuring that the Protected Material cannot be read,

7

copied, modified or deleted without authorization during electronic transmission,

8

transport or storage on storage media, and that the target entities for any transfer of

9

Protected Material by means of data transmission facilities can be established and

10

verified (data transfer control);

11

13.2.6 Reasonably ensuring that the Protected Material is processed solely

12

in accordance with instructions from Counsel or Receiving Party (control of

13

instructions).

14

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

15

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

16

under this Order, the Receiving Party must as soon as is practicable:

17
18

13.3.1 Notify in writing the Designating Party of the unauthorized
disclosure;

19
20

13.3.2 Use its best efforts to retrieve all copies of the Protected Materials;
and

21

13.3.3 Inform the person or persons to whom unauthorized disclosures

22

were made, to the extent the person or persons are identifiable, of all the terms of this

23

Order and have the person or persons execute the “Acknowledgment and Agreement to

24

Be Bound” form annexed hereto as Exhibit A.

25

14.

DEPOSITIONS

26

14.1 All deposition testimony shall be treated as containing Highly Confidential

27

Information and subject to this Order until a time (30) calendar days following receipt

28

of the certified transcript by counsel for the Plaintiffs and Defendants and, in the event
21
PROTECTIVE ORDER

1

of a third-party witness, counsel for the third party. In the event that any Party wishes

2

testimony or information disclosed at a deposition to be treated as Protected Material

3

thereafter, that Party shall designate such testimony or information as Protected

4

Material by either notifying the other Party in writing, within thirty (30) calendar days

5

following receipt of the certified transcript, or designating during the deposition the

6

transcript or portions thereof as Protected Material, and specifying whether the

7

information is to be treated as “Confidential,” “Highly Confidential – Attorneys Eyes

8

Only,” or “Highly Confidential – Source Code.” Documents and things already

9

designated as Protected Material which are used as exhibits shall remain as such. Any

10

party may designate the deposition testimony of any third party as confidential and the

11

provisions of this Section may be invoked.

12

14.2 If a Party seeks to question a witness at a deposition about Protected

13

Material that the witness has not previously seen and is not otherwise authorized to

14

access under this Order, the Party who wishes to disclose the Protected Material must

15

first seek permission to do so from the Designating Party. Such permission shall not be

16

unreasonably denied and may be conditioned on the witness signing the

17

Acknowledgement and Agreement to Be Bound (Exhibit A). If permission is denied,

18

the parties must immediately engage in a Local Rule 37-1 meet and confer session on

19

the record at the deposition. If, after meeting and conferring on the record, the

20

Designating Party states an intention to seek such a protective order on the issue, the

21

witness may not be shown the Protected Material and the deposition will continue as to

22

all other matters, with the deposition to remain open upon conclusion until the issue of

23

access to the Protected Material is fully briefed under Local Rule 37-2, et seq., and a

24

ruling issued. The moving party’s portion of the Local Rule 37-2 Joint Stipulation for

25

such a protective order shall be sent to the opposing party within 5 days from the date

26

of the deposition or the challenge is waived and the deposition may be reopened to allow

27

questioning on the Protected Material, at the objecting Designating Party’s expense. On

28

any such motion for a protective order, the Designating Party must explain why such
22
PROTECTIVE ORDER

1

disclosure is not warranted subject to the terms of this Order and the witness’s execution

2

of the Acknowledgement and Agreement to Be Bound (Exhibit A). The party opposing

3

such motion must explain the reasonable need for the witness to be shown the Protected

4

Material. If the moving party does not prevail on the requested protective order, such

5

moving party will be responsible to pay, in addition to the reasonable expenses

6

including attorney’s fees outlined in Fed. R. Civ. P. 37(a)(5), all costs associated with

7

reopening the deposition, including court reporter fees and, if the witness is an expert,

8

additional expert fees, subject to Fed. R. Civ. P. 37(a)(5)(B).

9

14.3 If counsel believes that any question or questions that will be put to a

10

witness at deposition in this action will disclose material designated Protected Material,

11

or if material designated Protected Material will be used as an exhibit at such a

12

deposition, counsel shall, advise opposing counsel of same in the course of the

13

deposition, and the deposition (or protected portions thereof), shall be conducted in the

14

presence of persons entitled under the terms of this Order to access the Protected

15

Material at issue.

16

15.

NO WAIVER OF RIGHT TO APPROPRIATELY WITHHOLD OR

17

REDACT

18

15.1 Notwithstanding the provisions of this Order, Parties may redact from any

19

document, whether designated Protected Material or not, any information containing

20

privileged material, or any other data protected from disclosure by State, Federal or

21

foreign regulations.

22

15.2 The parties agree that productions of Protected Data Information may

23

require additional safeguards pursuant to Federal, State or foreign statutes, regulations

24

or privacy obligations and will meet and confer to implement these safeguards if and

25

when needed.

26

16.

AMENDMENT

27

16.1 This Order may be amended with respect to (a) specific documents or

28

items of Protected Material or (b) persons to whom Protected Material may be
23
PROTECTIVE ORDER

1

disclosed, by Court order. This Order shall remain in force and effect indefinitely until

2

modified, superseded or terminated by order of this Court.

3

17.

MISCELLANEOUS

4

17.1 Absent written consent from the Producing Party, an individual who on

5

behalf of Plaintiff receives access to HIGHLY CONFIDENTIAL – SOURCE CODE

6

material or HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY material

7

containing technical information regarding the design or operation of a Producing

8

Party's current or future products (together, "Prosecution Bar Material") shall not be

9

involved in the prosecution of patents or patent applications relating to electronic stylus

10

design and operation before any foreign or domestic agency, including the U.S. Patent

11

and Trademark Office. For purposes of this paragraph, “Prosecution” includes directly

12

or indirectly drafting, amending, advising, or otherwise affecting the scope or

13

maintenance of patent claims in original prosecution or reissue proceedings.

14

“Prosecution” as used in this paragraph does not include representing a party

15

challenging or defending a patent in any contested proceeding before a domestic or

16

foreign agency (including, but not limited to, a reissue protest, interference, post grant

17

review, ex parte, or inter partes reexamination or review), provided that any individual

18

who reviews or otherwise gains knowledge of Prosecution Bar Material shall not be

19

involved, either directly or indirectly, in amending claims without seeking and

20

obtaining permission to do so from this Court upon motion under Local Civil Rule 37.

21

This Prosecution Bar shall begin when the affected individual first reviews or otherwise

22

gains knowledge and shall end one (1) year after final termination of this action.

23

17.2 Nothing herein shall prevent any Party or non-party from seeking

24

additional relief from the Court not specified in this Order, or from applying to the Court

25

for further or additional Orders.

26

17.3 Nothing contained in this Order shall be construed to restrain a Party or

27

third party from using or disclosing its own Protected Material as it deems appropriate.

28

Nothing in this Order shall be construed to require production of any Protected Material
24
PROTECTIVE ORDER

1

deemed by counsel for the Party or third party possessing such material to be privileged

2

or otherwise immune from discovery. This shall not preclude any Party from moving

3

the Court for an order compelling production or disclosure of such material.

4

17.4 All notices required by any sections of this Order are to be made by e-mail

5

to counsel representing the noticed Party. The date by which a Party receiving notice

6

shall respond or otherwise take action shall be computed from the date of receipt of the

7

notice. For any notice required under this Order, notice received after close of business

8

shall be deemed received on the following business day.

9

17.5 Nothing in this Order shall bar or otherwise restrict counsel from rendering

10

advice to his or her client with respect to the Litigation and, in the course thereof, relying

11

in a general way upon his or her examination of the Protected Material produced or

12

exchanged in the Litigation; provided, however, that in rendering such advice and in

13

otherwise communicating with a person not entitled to view any Protected Material, the

14

attorney shall not disclose the contents of Protected Material produced by any other

15

Party or non-party.

16
17
18

17.6 The headings herein are provided only for the convenience of the parties,
and are not intended to define or limit the scope of the express terms of this Order.
For good cause shown, IT IS SO ORDERED

19
20
21

DATED:

July 26, 2024

JOHN D. EARLY
United States Magistrate Judge

22
23
24
25
26
27
28
25
PROTECTIVE ORDER

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, ____________________________________ [print or type full name], of

4

____________________________________ [print or type full address], declare under

5

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

6

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

7

California in the case of Haptix Solutions LLC v. Microsoft Corporation, 8:24-cv-

8

00428-JWH-JDE. I agree to comply with and to be bound by all the terms of this

9

Stipulated Protective Order and I understand and acknowledge that failure to so comply

10

could expose me to sanctions and punishment in the nature of contempt. I solemnly

11

promise that I will not disclose in any manner any information or item that is subject to

12

this Stipulated Protective Order to any person or entity except in strict compliance with

13

the provisions of this Order.

14

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

15

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

16

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

17

action.

18
19

Date:

20

City and State where sworn and signed:

21
22

Printed name:

23

Signature:

24
25
26
27
28
26
PROTECTIVE ORDER