Microsoft Corporation v. DSD Solutions Inc., a California corporation et al

Filing 20

STIPULATED PROTECTIVE ORDER signed by Chief Judge Morrison C. England, Jr on 4/13/2016. (Mena-Sanchez, L)

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Audra M. Mori, Bar No. 162850
[e-mail]
Katherine M. Dugdale, Bar No. 168014
[e-mail]
PERKINS COIE LLP
1888 Century Park E., Suite 1700
Los Angeles, CA 90067-1721
Telephone: [phone]
Facsimile: 310.788.3399
Attorneys for Plaintiff
MICROSOFT CORPORATION

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Curtis R. Tingley, Bar No. 112322
[e-mail]
Stephen D. Collins, Bar No. 277248
[e-mail]
Kevin W. Isaacson, Bar No. 281067
[e-mail]
TINGLEY LAW GROUP, PC
10 Almaden Boulevard, Suite 960
San Jose, California 95113
Telephone:
408.283.7000
Facsimile:
408.283.7010

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Attorneys for Defendants
DSD SOLUTIONS INC. and DUY L. PAN

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICROSOFT CORPORATION,
a Washington corporation,
Plaintiff,

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Case No. 15-CV-01690 MCE CKD
STIPULATION FOR PROTECTIVE
ORDER; ORDER

v.
DSD SOLUTIONS INC., a California
corporation d/b/a DESTINED DESIGN;
DUY L. PAN, an individual; and DOES 1-5,
Defendants.

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IT IS HEREBY STIPULATED and agreed by and between counsel for the parties that,

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upon the Court’s approval, the terms and conditions of a Stipulated Protective Order should be

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entered as follows:
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STIPULATION FOR PROTECTIVE ORDER
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1.

The Stipulated Protective Order entered by the Court (the “Court’s Order”) shall

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be applicable to and govern all depositions, documents produced in response to requests for

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production of documents, answers to interrogatories, responses to requests for admissions, and all

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other discovery taken pursuant to the Federal Rules of Civil Procedure, as well as all documents

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produced by either party in response to informal discovery requests, testimony, matters in

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evidence, and computerized records (collectively, “RECORDS”) which the disclosing party

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designates as “CONFIDENTIAL MATERIAL” or “RESTRICTED MATERIAL” pursuant to this

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Stipulation and the Court’s Order, directly or indirectly by or on behalf of any party in connection

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with this action.

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2.

Pursuant to Local Rule 141.1(c)(1), the types of information eligible for protection

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include a party’s trade secret, confidential, competitive, or proprietary information pertaining to

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the party’s business, which the party takes appropriate efforts to keep confidential, or information

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which the party is otherwise required to keep confidential by agreement or law, including the

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following: financial information; research, development, and technical information and

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specifications; customer information; security features of the party’s products or property; and

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information that, if disclosed, would seriously undermine the party’s ability to investigate the

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infringement of its products or property.

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3.

Pursuant to Local Rule 141.1(c)(2), there is a need to protect this type of evidence.

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A party’s trade secret, confidential, competitive, or proprietary information could be abused if its

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use were not limited to this lawsuit. For example, third party competitors could exploit the

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following types of confidential information to their advantage were it made public: (1) a party’s

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financial information; (2) research, development, and technical information and specifications;

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and (3) customer information. In some cases, disclosure of this type of evidence could breach

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confidentiality agreements or violate privacy or consumer protection laws. Further, disclosure of

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information related to the security features of a party’s products or property, or that would

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seriously undermine the party’s ability to investigate the infringement of its products or property,

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would facilitate infringement.

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STIPULATION FOR PROTECTIVE ORDER
CASE NO. 15-CV-01690 MCE CKD

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4.

Pursuant to Local Rule 141.1(c)(3), the parties seek a Protective Order, as opposed

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to entering into a private agreement, because the proposed Order provides mechanisms for the

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resolution of disputes and the handling of designated evidence that involve the Court.

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5.

In designating RECORDS as “CONFIDENTIAL MATERIAL” or

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“RESTRICTED MATERIAL,” a party shall make such a designation only for RECORDS which

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that party in good faith believes contain trade secret, confidential, competitive, or proprietary

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information pertaining to a party’s business, which the party takes appropriate efforts to keep

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confidential, or information which the party is otherwise required to keep confidential by

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agreement or law. For a designation of RECORDS as “RESTRICTED MATERIAL,” the party

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must additionally believe in good faith that the RECORDS must be protected from disclosure to

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the parties themselves in this litigation and subject to the restricted disclosure provided for below.

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CONFIDENTIAL MATERIAL and RESTRICTED MATERIAL shall be used solely for the

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purpose of conducting this litigation and not for any other purpose.

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6.

RECORDS designated as CONFIDENTIAL MATERIAL may be disclosed only

to the following persons:

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a.

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house attorneys;

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b.

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the attorneys working on this action on behalf of any party, including in-

any paralegal assistants, stenographic and clerical employees working

under the direct supervision of such counsel;
c.

any parties to this action who are individuals, and the employees, directors

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or officers of parties to this action who are corporations or partnerships, to the extent necessary to

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further the interest of the parties in this litigation;

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d.

any person not employed by a party who is expressly retained or sought to

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be retained by any attorney described in paragraph 6(a) to assist in preparation of this action for

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trial, with disclosure only to the extent necessary to perform such work;

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e.

any witnesses who appear for deposition or trial in this matter, and their

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counsel of record, during the course of their testimony, upon the witness being advised of the

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need and agreeing to keep the RECORDS confidential; and
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STIPULATION FOR PROTECTIVE ORDER
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f.
7.

RECORDS designated as “RESTRICTED MATERIAL” may be disclosed only to

the following persons:

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the Court.

a.

the attorneys working on this action on behalf of any party, including in-

house litigation attorneys;

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b.

any paralegal assistants, stenographic and clerical employees working

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under the direct supervision of such counsel, with disclosure only to the extent necessary to

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perform their work in connection with this matter;

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c.

any person not employed by a party who is expressly retained or sought to

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be retained by any attorney described in paragraph 7(a) to assist in preparation of this action for

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trial, with disclosure only to the extent necessary to perform such work;

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d.

any witnesses who appear for deposition or trial in this matter, and their

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counsel of record, during the course of their testimony, upon the witness being advised of the

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need and agreeing to keep the RECORDS confidential; and

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e.
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the Court.

Notwithstanding any other provisions of the Court’s Order, Microsoft may use and

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disclose CONFIDENTIAL MATERIAL or RESTRICTED MATERIAL in order to investigate

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and/or prosecute criminal or civil actions involving copyright or trademark infringement against

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parties or entities other than the defendants in this matter and may provide CONFIDENTIAL

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MATERIAL or RESTRICTED MATERIAL to law enforcement officials upon such officials’

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request.

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9.

The persons described in paragraphs 6(d) and 7(c) shall have access to the

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CONFIDENTIAL MATERIAL or RESTRICTED MATERIAL once they have been made aware

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of the provisions of the Court’s Order and have manifested their assent to be bound thereby by

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signing a copy of the annexed “ACKNOWLEDGMENT.” Upon request, a list shall be prepared

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by counsel for the parties hereto of the names of all such persons to whom CONFIDENTIAL

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MATERIAL or RESTRICTED MATERIAL is disclosed, or to whom the information contained

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therein is disclosed, and such list shall be available for inspection by the Court and opposing
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STIPULATION FOR PROTECTIVE ORDER
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counsel. The other persons described in paragraphs 6 and 7 shall have access to the

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CONFIDENTIAL MATERIAL and RESTRICTED MATERIAL pursuant to the terms of the

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Court’s Order without signing a copy of the annexed “ACKNOWLEDGEMENT.” Upon request,

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similar but separate lists shall also be prepared with respect to CONFIDENTIAL MATERIAL or

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RESTRICTED MATERIAL provided by third parties. The persons receiving CONFIDENTIAL

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MATERIAL or RESTRICTED MATERIAL are enjoined from disclosing it to any other person,

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except in conformance with the Court’s Order. This Stipulation will not require the disclosure of

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experts other than by Local Rule, Federal Rule of Civil Procedure, and/or Court Order.

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10.

Each individual who receives any CONFIDENTIAL MATERIAL or

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RESTRICTED MATERIAL hereby agrees to subject himself/herself to the jurisdiction of this

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Court for the purpose of any proceedings relating to the performance under, compliance with or

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violation of the Court’s Order.

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11.

The recipient of any CONFIDENTIAL MATERIAL or RESTRICTED

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MATERIAL that is provided under the Court’s Order shall maintain such RECORDS in a secure

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and safe area and shall exercise the same standard of due and proper care with respect to the

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storage, custody, use and/or dissemination of such RECORDS as is exercised by the recipient

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with respect to its own proprietary information.

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12.

Parties shall designate CONFIDENTIAL MATERIAL or RESTRICTED

MATERIAL as follows:
a.

In the case of RECORDS produced pursuant to Rules 26 and 34 of the

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Federal Rules of Civil Procedure, interrogatory answers, responses to requests for admissions,

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and the information contained therein, designation shall be made by placing the following legend

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on any such RECORD prior to production: “CONFIDENTIAL MATERIAL” or “RESTRICTED

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MATERIAL.” In the event that a party was unable to stamp or otherwise designate a RECORD

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as CONFIDENTIAL MATERIAL or RESTRICTED MATERIAL at the time of its production,

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that party may, within twenty-one (21) days of becoming able to designate such RECORD, so

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stamp or otherwise designate the RECORD. In the event that a party inadvertently fails to stamp

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or otherwise designate a RECORD as CONFIDENTIAL MATERIAL or RESTRICTED
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STIPULATION FOR PROTECTIVE ORDER
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MATERIAL at the time of its production, that party may, after discovery of such error, so stamp

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or otherwise designate the RECORD.

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b.

In the case of depositions, designation of the portion of the transcript

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(including exhibits) which contains CONFIDENTIAL MATERIAL or RESTRICTED

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MATERIAL shall be made by a statement to such effect on the record in the course of the

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deposition or, upon review of such transcript by counsel for the party to whose CONFIDENTIAL

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MATERIAL or RESTRICTED MATERIAL the deponent has had access, said counsel shall

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designate within twenty-one (21) days after counsel’s receipt of the transcript.

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c.

Transcripts of depositions will not be filed with the Court unless it is

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necessary to do so for purposes of trial, motions for summary judgment, or other matters, and

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when filed, the parties shall comply with paragraph 14 below.

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13.

A party shall not be obligated to challenge the propriety of a CONFIDENTIAL

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MATERIAL or RESTRICTED MATERIAL designation at the time made, and failure to do so

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shall not preclude a subsequent challenge thereto. In the event that any party to this litigation

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disagrees at any stage of these proceedings with such designation, such party shall provide to the

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producing party written notice of its disagreement with the designation. The parties shall first try

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to dispose of such dispute in good faith on an informal basis. If the dispute cannot be resolved,

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the party challenging the designation may request appropriate relief from the Court.

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14.

In the event that any CONFIDENTIAL MATERIAL or RESTRICTED

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MATERIAL is to be used in any court proceedings in connection with this litigation, the parties

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shall request an Order from the Court seeking to seal the documents pursuant to Local Rule 141.

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If any CONFIDENTIAL MATERIAL or RESTRICTED MATERIAL is used in any court

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proceedings in connection with this litigation it shall not lose its CONFIDENTIAL MATERIAL

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or RESTRICTED MATERIAL status through such use, and the parties shall take all steps

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reasonably required to protect its confidentiality during such use.

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15.

Nothing in the Court’s Order shall preclude any party to the lawsuit, their

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attorneys or any other person from disclosing or using, in any manner or for any purpose, any

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RECORDS not obtained in this lawsuit, if such RECORDS are lawfully obtained from a third
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STIPULATION FOR PROTECTIVE ORDER
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party, even though the same RECORDS may have been produced in discovery in this lawsuit and

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designated as CONFIDENTIAL MATERIAL or RESTRICTED MATERIAL.

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16.

Nothing in the Court’s Order shall preclude any party to the lawsuit or their

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attorneys (a) from showing RECORDS designated as CONFIDENTIAL MATERIAL or

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RESTRICTED MATERIAL to an individual who either prepared or reviewed the RECORDS

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prior to the filing of this action, or (b) from disclosing or using, in any manner or for any purpose,

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RECORDS from the party’s own files which the party itself has designated as CONFIDENTIAL

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MATERIAL or RESTRICTED MATERIAL.

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17.

Within sixty (60) days of the termination of litigation between the parties, all

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CONFIDENTIAL MATERIAL and RESTRICTED MATERIAL, and all copies thereof, except

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such copies which have been filed with the Court, utilized in accordance with the Court’s Order,

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or which are and will continue to be maintained in a secure place pursuant to the continuing

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obligations of the Court’s Order, shall be returned to the party which produced it or shall be

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destroyed.

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Except as specifically provided herein, the terms, conditions and limitations of the

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Court’s Order shall survive the termination of this action at the option of the designating party.

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STIPULATION FOR PROTECTIVE ORDER
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19.

The Court’s Order is without prejudice to the right of any party to seek relief from

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the Court, upon good cause shown, from any of the provisions contained in paragraphs 1 through

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18, inclusive hereof.

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APPROVED AS TO FORM AND CONTENT:

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DATED: April 13, 2016

PERKINS COIE LLP

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By: /s/ Audra M. Mori
Audra M. Mori
Attorneys for Plaintiff

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DATED: April 13, 2016

TINGLEY LAW GROUP, PC

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By: /s/ Stephen D. Collins
Stephen D. Collins
Attorneys for Defendants

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ORDER

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IT IS SO ORDERED.

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Dated: April
Dated: April 13, 2016 13, 2016

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STIPULATION FOR PROTECTIVE ORDER
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ACKNOWLEDGEMENT

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The undersigned hereby acknowledges that he/she has read the Protective Order which

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was entered by the Court on ________________, 2016, Microsoft Corporation v. DSD Solutions

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Inc., a California corporation d/b/a Destined Design; Duy L. Pan, an individual; and DOES 1-5,

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Case No. 15-CV-01690-MCE-CKD, that he/she is one of the persons contemplated in paragraphs

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3 and 4 thereof as authorized to receive disclosure of RECORDS designated CONFIDENTIAL

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MATERIAL or RESTRICTED MATERIAL by any of the parties or by third parties, and that

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he/she fully understand and agrees to abide by the obligations and conditions of the Protective

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Order. The undersigned further consents to be subject to the jurisdiction of the United States

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District Court for the Central District of California for purposes of any proceedings relating to

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performance under, compliance with or violation of the above-described Order.

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Dated: ___________, 20___

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STIPULATION FOR PROTECTIVE ORDER
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