Realnetworks, Inc. et al v. DVD Copy Control Association, Inc. et al

Filing 66

Letter from Colleen Bal re protective order, discovery and PI briefing. (Attachments: # 1 Exhibit A)(Bal, Colleen) (Filed on 11/20/2008)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAMES A. DiBOISE (SBN 83296) jdiboise@wsgr.com COLLEEN BAL (SBN 167637) cbal@wsgr.com MICHAEL A. BERTA (SBN 194650) mberta@wsgr.com TRACY TOSH LANE (SBN 184666) tosh@wsgr.com WILSON SONSINI GOODRICH & ROSATI PC One Market Street, Spear Tower, Suite 3300 San Francisco, CA 94105 Tel: (415) 947-2000; Fax: (415) 947-2099 Attorneys for Plaintiffs REALNETWORKS, INC. and REALNETWORKS HOME ENTERTAINMENT GLENN D. POMERANTZ (SBN 112503) Glenn.Pomerantz@mto.com BART H. WILLIAMS (SBN 134009) Bart.Williams@mto.com KELLY M. KLAUS (SBN 161091) Kelly.Klaus@mto.com MUNGER TOLLES & OLSON LLP 335 South Grand Avenue, 35th Floor Los Angeles, CA 90071-1560 Tel: (213) 683-9100; Fax: (213) 687-3702 ROBERT H. ROTSTEIN (SBN 72452) rxr@msk.com ERIC J. GERMAN (SBN 224557) ejg@msk.com BETSY A. ZEDEK (SBN 241653) baz@msk.com MITCHELL, SILBERBERG & KNUPP LLP 11377 West Olympic Boulevard Los Angeles, CA 90064-1683 Tel: (310) 312-2000; Fax: (310) 312-3100 Attorneys for Defendants PARAMOUNT PICTURES CORP., SONY PICTURES ENTERTAINMENT, INC., TWENTIETH CENTURY FOX FILM CORP., NBC UNIVERSAL, INC., WARNER BROS. ENTERTAINMENT, INC., and VIACOM, INC. REGINALD D. STEER (SBN 056324) rsteer@akingump.com MARIA ELLINIKOS (SBN 235528) mellinikos@akingump.com AKIN GUMP STRAUSS HAUER & FELD LLP 580 California, 15th Floor San Francisco, California 94104-1036 Tel: (415) 765-9500; Fax: (415) 765-9501 EDWARD P. LAZARUS (SBN 212658) elazarus@akingump.com STEPHEN MICK (SBN 131569) smick@akingump.com MICHAEL SMALL (SBN 222768) msmall@akingump.com AKIN GUMP STRAUSS HAUER & FELD LLP 2029 Century Park East, Suite 2400 Los Angeles, California 90067-3012 Telephone: (310) 229-1000; Fax: (310) 229-1001 WILLIAM SLOAN COATS (SBN 94864) wcoats@whitecase.com MARK WEINSTEIN (SBN 193043) mweinstein@whitecase.com MARK F. LAMBERT (SBN 197410) mlambert@whitecase.com WHITE & CASE LLP 3000 El Camino Real 5 Palo Alto Square, 9th Floor Palo Alto, California 94306 Tel: (650) 213-0300; Fax: (650) 213-8158 Attorneys for Defendant DVD COPY CONTROL ASSOCIATION, INC DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AND RELATED CASES UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA REALNETWORKS, INC., a Washington Corporation; and REALNETWORKS HOME ENTERTAINMENT, INC., a Delaware corporation, Plaintiffs, v. DVD COPY CONTROL ASSOCIATION, INC., a Delaware nonprofit corporation, DISNEY ENTERPRISES, INC., a Delaware corporation; PARAMOUNT PICTURES CORP., a Delaware corporation; SONY PICTURES ENTER., INC., a Delaware corporation; TWENTIETH CENTURY FOX FILM CORP., a Delaware corporation; NBC UNIVERSAL, INC., a Delaware corporation; WARNER BROS. ENTER. INC., a Delaware corporation; and VIACOM, Inc., a Delaware Corporation, Defendants. Case Nos. C08 04548 MHP; C08 04719 MHP [PROPOSED] PROTECTIVE ORDER Plaintiffs RealNetworks, Inc., RealNetworks Home Entertainment, Inc. (collectively "Real"); defendants Paramount Pictures Corp; Sony Pictures Entertainment, Inc.; Twentieth Century Fox Film Corp.; Warner Bros. Entertainment Inc.; Disney Enterprises, Inc.; NBC Universal, Inc, and Viacom, Inc ("collectively, the "Studio Defendants"); and defendant DVD Copy Control Association, Inc. ("DVD CCA") by and through their respective counsel, hereby respectfully request that the Court enter the following Protective Order ("Order"). 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Accordingly, the parties hereby -1DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The parties further acknowledge, as set forth in Section 10, below, that this Stipulated Protective Order creates no entitlement to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the court to file material under seal. 2. DEFINITIONS 2.1 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff). 2.2 Disclosure or Discovery Material: all items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter. 2.3 "Confidential" Information or Items: information (regardless of how generated, stored or maintained) or tangible things that qualify for protection under standards developed under F.R.Civ.P. 26(c). 2.4 "Highly Confidential Attorneys' Eyes Only" Information or Items: highly sensitive "Confidential Information or Items" whose disclosure to another Party or nonparty would create a substantial detriment to the disclosing Party that could not be avoided by less restrictive means. 2.5 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 2.6 this action. 2.7 Designating Party: a Party or non-party that designates information or items that it Producing Party: a Party or non-party that produces Disclosure or Discovery Material in produces in disclosures or in responses to discovery as "Confidential" or "Highly Confidential -- Attorneys' Eyes Only." -2DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2.8 Protected Material: any Disclosure or Discovery Material that is designated as "Confidential" or as "Highly Confidential Attorneys' Eyes Only." 2.9 - DISPUTED SECTION: A. REAL'S PROPOSED LANGUAGE: 2.9 Outside Counsel: attorneys who are not employees of a Party, but who are employees of a law firm retained to represent or advise a Party in this action. B. DEFENDANTS' PROPOSED LANGUAGE: 2.9 Outside Counsel: attorneys of record in this action (a) Akin Gump Strauss Hauer & Feld LLP, White & Case LLP, Munger Tolles & Olson LLP, Mitchell, Silberberg & Knupp LLP, or Wilson Sonsini Goodrich & Rosati, PC; and (b) Daniel Robbins, Esq. and Gregory Goeckner, Esq. END OF DISPUTED SECTION 2.10 House Counsel: (a) attorneys who are employees of a Party; (b) attorneys for an affiliate of one or more Studio Defendants who have signed the "Agreement to Be Bound By Protective Order" (Exhibit A); and (c) for defendant DVD CCA, the DVD CCA's General Counsel, and three (3) counsel for DVD CCA that are not Outside Counsel, who have signed the "Agreement to Be Bound By Protective Order" (Exhibit A). 2.11 support staffs). 2.12 Expert: a person with specialized knowledge or experience in a matter pertinent to the Counsel (without qualifier): Outside Counsel and House Counsel (as well as their litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action and who is not a current employee of a Party or of a competitor of a Party's and who, at the time of retention, is not anticipated to become and employee of a Party or a competitor of a Party. This definition includes a professional jury or trial consultant retained in connection with this litigation. -3DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3. 2.13 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; preparing exhibits or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors. 2.14 Final Disposition: The legal conclusion of this case, whether by final court judgment and the exhaustion of all potential appeals, by voluntary dismissal, or by settlement. 2.15 Source Code: Human-readable computer source code. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also any information copied or extracted there from, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Material. 4. DURATION Even after the termination of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. A Designating Party must take care to designate for protection only those parts of material, documents, items, or oral or written communications that qualify so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. The parties will work in good faith to avoid unnecessary mass, indiscriminate, or routinized designations. Designations that are shown to be clearly unjustified, or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process, or to impose unnecessary expenses and burdens on other parties), expose the Designating Party to sanctions. -4DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If it comes to a Party's or a non-party's attention that information or items that it designated for protection do not qualify for protection at all, or do not qualify for the level of protection initially asserted, that Party or non-party must promptly notify all other parties that it is withdrawing the mistaken designation. 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a), below), or as otherwise stipulated or ordered, material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires: (a) for information in documentary form (apart from transcripts of depositions or other pretrial or trial proceedings): The Producing Party must affix the legend "Confidential" or "Highly Confidential Attorneys' Eyes Only" at the top or bottom of each page that contains Protected Material. A Party or non-party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "Highly Confidential Attorneys' Eyes Only." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order, then, before producing the specified documents, the Producing Party must affix the appropriate legend ("Confidential" or "Highly Confidential Attorneys' Eyes Only") at the top of each page that contains Protected Material. (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Party or A Party or non-Party must either (1) state on the record, before the close of the deposition, hearing, or other proceeding, that the testimony or portions of the testimony shall be designated "Confidential" or "Highly Confidential Attorneys' Eyes Only," or (2) provide written notice to all Parties, within 10 days after receipt of the official transcript, that the testimony shall be designated -5DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 "Confidential" or "Highly Confidential Attorneys' Eyes Only." The Parties shall treat the testimony as "Highly Confidential Attorneys' Eyes Only" until the expiration of the 10 day period. Transcript pages containing Protected Material must be marked with the legend "Confidential" or "Highly Confidential Attorneys' Eyes Only" as instructed by the Party or non-Party. (c) for information produced in some form other than documentary, and for any other tangible item, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or items is stored the legend "Confidential" or "Highly Confidential Attorneys' Eyes Only." (d) for information produced in electronic form on a computer readable medium (e.g., CD-ROM), that the Producing Party affix in a prominent place on the storage medium on which the information is stored, and on any container(s) for such medium, the legend "Confidential" or "Highly Confidential Attorneys' Eyes Only." 5.3 Inadvertent Failure to Designate. If timely corrected, an inadvertent failure to designate qualified information or items as "Confidential" or "Highly Confidential Attorneys' Eyes Only" does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. If material is appropriately designated as "Confidential" or "Highly Confidential Attorneys' Eyes Only" after the material was initially produced, the Receiving Party, on timely notification of the designation, must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable substantial unfairness, unnecessary economic burdens, or a later significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet and Confer. A Party that elects to initiate a challenge to a Designating Party's confidentiality designation must do so in good faith and must begin the process by conferring directly -6DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (in voice to voice dialogue; other forms of communication are not sufficient) with counsel for the Designating Party. In conferring, the challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first. 6.3 Judicial Intervention. A Party that elects to press a challenge to a confidentiality designation after considering the justification offered by the Designating Party may, within fifteen (15) days of the conclusion of the meet and confer process, file and serve a motion under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) that identifies the challenged material and sets forth in detail the basis for the challenge. Each such motion must be accompanied by a competent declaration that affirms that the movant has complied with the meet and confer requirements imposed in the preceding paragraph and that sets forth with specificity the justification for the confidentiality designation that was given by the Designating Party in the meet and confer dialogue. Any opposition to such a motion is due five (5) business days after its service. Any reply is due three (3) business days after service of the opposition. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Until the court rules on the challenge, all parties shall continue to afford the material in question the level of protection to which it is entitled under the Producing Party's designation. The parties shall attempt in good faith to combine as many disputed issues as possible when bringing a motion under this section 6.3. 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or produced by another Party or by a non-party in connection with this case only for prosecuting, defending, appealing, or attempting to settle this litigation. For the avoidance of doubt, a Receiving Party may not use Protected Material for any business, commercial, or competitive purpose, or during the course of any other case, litigation, or proceeding, whether or not factually related to this action. -7DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Such Protected Material may be disclosed only to the categories of persons and under the conditions described in this Order. When the litigation has been terminated, a Receiving Party must comply with the provisions of section 12, below (FINAL DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of "Confidential" Information. Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "Confidential" only to: (a) the Receiving Party's Outside Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this litigation; (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); (d) (e) this litigation; (f) Professional Vendors to whom disclosure is reasonably necessary for this the Court and its personnel; court reporters and their staffs, to whom disclosure is reasonably necessary for litigation, and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A), provided that all Protected Material is retrieved by the party furnishing it upon completion of the services; (g) during or in preparation for their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A). Pages of transcribed deposition testimony or exhibits to depositions that reveal -8DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order.; and (h) the information. 7.3 Disclosure of "Highly Confidential Attorneys' Eyes Only" Information. Unless an author, signatory, or prior recipient of the document or the original source of otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "Highly Confidential Attorneys' Eyes Only" only to: (a) the Receiving Party's Outside Counsel of record in this action, as well as employees of said Counsel to whom it is reasonably necessary to disclose the information for this litigation, and three (3) House Counsel per Party who have signed the "Agreement to Be Bound By Protective Order" (Exhibit A); (b) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation, who have signed the "Agreement to Be Bound by Protective Order" (Exhibit A); (c) (d) the Court and its personnel; court reporters, their staffs, and Professional Vendors to whom disclosure is reasonably necessary for this litigation; and (e) the information. Where the Protected Material is Source Code, and notwithstanding any provision of this section to 7.3 that is to the contrary, disclosure shall be limited as set forth in section 14. 8. IDENTIFICATION OF EXPERTS AND CONSULTANTS AND DESIGNATED HOUSE COUNSEL A Party desiring to disclose any information or item designated "Confidential" or "Highly Confidential Attorneys' Eyes Only" to an Expert or House Counsel under Section 2.10(b) or (c) shall first obtain from the Expert or House Counsel under Section 2.10(b) or (c) a signed undertaking in the form of Exhibit A hereto and a current resume (curriculum vitae). For experts, but not for House -9DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 an author, signatory, or prior recipient of the document or the original source of 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Counsel under Section 2.10(b) or (c), a copy of said undertaking and resume shall be served upon counsel for the Designating Party with a cover letter identifying each company for which the expert has done work in the past five years or with which the expert has an agreement to do work in the future. For House counsel, a cover letter listing the names and entities by whom they are employed shall be served upon counsel for the Designating Party. The Designating Party shall then have three business days to serve a written objection to disclosure. Any written objection shall state with specificity the reason(s) for such objection. If counsel for Designating Party objects within three business days, there shall be no disclosure to such Expert or House Counsel under Section 2.10(b) or (c), except by agreement of the Parties or by order of the Court. If an objection to disclosure is made within the three-day period, counsel for the Parties shall meet and confer to reach an agreement. Failing that and for good cause shown, the Party proposing the Expert or House Counsel under Section 2.10(b) or (c) may file a motion seeking permission to make the disclosure. On any such motion, the Designating Party shall bear the burden of showing why disclosure to the Expert or House Counsel under Section 2.10(b) or (c) should be precluded. Once the Parties have completed the Preliminary Injunction proceedings anticipated at the time of the entry of this Order, all actions under this Section 8 that are required to be undertaken within three business days may thereafter be undertaken with five business days. 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION. If a Receiving Party is served with a subpoena or an order issued in other litigation that would compel disclosure of any Protected Material designated in this action as "Confidential" or "Highly Confidential Attorneys' Eyes Only," the Receiving Party must so notify the Designating Party immediately in writing and in no event more than three business days after receiving the subpoena or order. Such notification must include a copy of the subpoena or court order. The Receiving Party also must immediately in writing inform the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is the subject of this Order. In addition, the Receiving Party must deliver a copy of -10DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 this Order promptly to the Party in the other litigation that caused the subpoena or order to issue. The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. The Designating Party shall bear the burdens and the expenses of seeking protection in that court of its confidential material and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from another court. 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve all copies of the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A. 11. FILING PROTECTED MATERIAL Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. 12. FINAL DISPOSITION Even after Final Disposition of this action (as defined above), the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Unless otherwise ordered or agreed in writing by the Producing Party, within 90 days after a Final Disposition of this action, each Receiving Party must return to the Producing Party or destroy all Protected Material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, -11DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 compilations, summaries, or any other form of reproducing or capturing any of the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit a written certification to the Producing Party by the 90-day deadline affirming that all Protected Material it received has been returned or destroyed and that the Receiving Party, in addition to any individual to which the Receiving Party was entitled under this order to disclose Protected Material, has not retained any copies, abstracts, compilations, summaries or other forms of reproducing or capturing any of the Protected Material. Notwithstanding this provision Counsel are entitled to retain an archival copy of all pleadings, motion papers, transcripts, legal memoranda, correspondence or attorney work product (including exhibits, deposition exhibits, and trial exhibits), even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to the confidentiality obligations of this Order. 13. INADVERTENT PRODUCTION OF PRIVILEGED MATERIAL Inadvertent production of any document that a party later claims should not have been produced because of a privilege, including but not limited to the attorney-client privilege or work product doctrine (Inadvertently Produced Privileged Document"), will not be deemed to waive any privilege. The designating party may request the return of any Inadvertently Produced Privileged Document. A request for the return of an Inadvertently Produced Privileged Document shall identify the document inadvertently produced and the basis for withholding such document from production. If a party or nonparty requests the return, pursuant to this paragraph, of any Inadvertently Produced Privileged Document then in the custody of another party or nonparty, such other party shall within ten (10) business days return to the requesting party or nonparty the Inadvertently Produced Privileged Document and all copies thereof and shall destroy any documents summarizing or referring to such Inadvertently Produced Privileged Document. The party returning such material may then move the Court for an order compelling production of the material, but that party shall not assert as a ground for entering such an order the fact or circumstances of the inadvertent production. Without limiting this Paragraph, Federal Rule of Evidence 502, as adopted in S.2450 (111th Congress, 2d Session) on September 19, 2008 shall be deemed to apply in this litigation. -12DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14. A. 14. DISPUTED SECTION: REAL'S PROPOSED LANGUAGE: SOURCE CODE MATERIALS Human-readable source code designated by a Producing Party as "Highly Confidential Attorneys' Eyes Only -- Source Code" shall be produced to the Receiving Party's Outside Counsel and approved Experts in computer searchable format sufficient to allow a user to search and view the Source Code. Production of Real's Source Code to Receiving Parties shall be subject to the following conditions: (a) All electronic copies of Source Code (including any summary or derivative works that replicate or summarize, in whole in part, such materials) must, except when in use, be passwordprotected and encrypted by using symmetric key encryption with a key length of at least 128-bits. Such encryption may be accomplished by using PGP, TrueCrypt or other encryption software that permits symmetric key encryption with a key length of at least 128-bits. (b) All electronic copies of Source Code to be made available to Receiving Parties shall be loaded and maintained on only one computer at the offices of Munger Tolles & Olson LLP and only one computer at the offices of White & Case LLP (i) in a secure location, under lock and key, in such a manner as to prevent misappropriation of the Source Code; and, (ii) on a stand-alone computer that is not connected to any computer network. No person from or on behalf of the Receiving Parties is permitted to print or make any copies of any portion of this Source Code. (c) Printed copies of selected portions of the source code may be made by counsel for Real for review by Outside Counsel and approved Experts for Receiving Party. Copies of selected portions of the source code may only include such portions of the source code that require explanation and analysis in deposition, as part of any hearing in this matter or are otherwise reasonably necessary for analysis. In no instance shall any portion of Real's Digital Rights Management (Real's proprietary copy management system and license key management system) source code be printed or copied. For -13DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 those select portions of source code that outside counsel and/or approved experts desire to be printed, they shall assert their good faith belief that such portion of the source code will be necessary for examination in deposition, for use in any hearing in this matter or otherwise reasonably necessary for analysis in writing to counsel for Real. Upon receipt of such request, counsel for Real shall cause to be printed, on copy-protected paper, one copy for use by outside counsel to the DVD CCA, one copy for use by outside counsel for the Studio Defendants, and two copies to be used by approved experts (for a maximum of four total copies). Each page of any printed copy shall be marked "Confidential SOURCE CODE - Attorneys' Eyes Only." Printed copies of portions of the Source Code that are removed from Real or Real's Outside Counsel's office shall be kept in a locked container in a locked room at the offices of either the Receiving Party's Outside Counsel or Receiving Party's approved expert. Any printed copies shall be destroyed as soon as they are no longer needed and Real's counsel shall be so notified of said destruction. (d) Only approved Experts and Outside Counsel may have access to Source Code on behalf of Receiving Party. Employees of the Receiving Party, including House Counsel, shall not be allowed access to Source Code, whether in electronic or printed form, under any circumstances. (e) The Receiving Party agrees to be strictly liable for any damages, including consequential damages, caused by the failure of the Receiving Party, its Outside Counsel or its Experts to protect the confidentiality of the Source Code. B. 14. DEFENDANTS' PROPOSED LANGUAGE: SOURCE CODE MATERIALS a) Production of Source Code. RealNetworks shall produce Human-readable source code designated as "Highly Confidential Attorneys' Eyes Only" ("Source Code") in native electronic format to the defendants. Three copies of the Source Code shall be provided to the Studio Defendants collectively, and three copies to the DVDCCA. b) Access to Source Code. i) The Source Code shall be treated as "Highly Confidential -- Attorney's Eyes Only," in all respects except as specified in this section. -14DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 longer needed. ii) Documentation of Source Code, "readme" files, comments and the like shall not be treated as Source Code but instead as "Highly Confidential -- Attorneys' Eyes Only." iii) Access to Source Code shall not be permitted to House counsel or Vendors retained for duplicating or document assembly services. c) Protections for Source Code i) Defendants shall maintain the Source Code on password-protected, non- networked computers kept in a secure location, under lock and key. ii) Precautions shall be taken to keep the Source Code secure and to limit access to the source code to authorized personnel. iii) Code may be made. iv) All electronic copies of Source Code maintained by the defendants must, except No additional copies of the Source Code or copies of printouts of the Source when in use, be encrypted with a key length of at least 128-bits, such as for example using PGP, TrueCrypt or other comparable encryption tools. v) All accesses by defendants' experts and consultants shall be logged with the date, time, and individual. RealNetworks may seek to review the logs only if it can establish probable cause to suspect the expert or consultant violated the terms of this Order with respect to Source Code. vi) Printers may be connected to such computers, and software to assist in the analysis of the Source Code may be loaded onto such computers. d) Printouts i) Portions of the Source Code may be printed only when necessary in good faith for the analysis of the Source Code, for the preparation of pleadings or other submissions to the Court, or for use in a deposition or other proceeding in this litigation. ii) All printouts shall be maintained at the offices of defendants consultants, experts, or outside counsel under lock and key. iii) All printouts shall be made on non-white paper and destroyed once they are no -15DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15. (f) iv) All printouts by a defendant's experts or consultants shall be logged with the date, time, individual, and files printed. RealNetworks may seek to review the logs only if it can establish probable cause to suspect the expert or consultant violated the terms of this Order with respect to the Source Code. e) Termination of Litigation i) At the conclusion of all proceedings in this Court, all copies of the Source Code, including printouts, in the possession of defendants, their counsel, experts, or consultants, shall be promptly destroyed. Defendants' outside counsel, however, may maintain a copy and necessary printouts of the Source Code, during any appeals in this litigation. Employees of the Receiving Party, including House Counsel, shall not be allowed access to Source Code, whether in electronic or printed form, under any circumstances. END OF DISPUTED SECTION 14 MISCELLANEOUS 15.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the Court in the future. 15.2 Use of Party's Own Materials. Nothing in this Order shall restrict a Party's ability to use and disclose its own designated materials as it chooses. Such disclosure shall not waive the protections of this Order and shall not entitle other Parties or non-Parties to disclose such materials in violation of this Order. 15.3 Right to Assert Other Objections. By stipulating to the entry of this Order, no Party waives any right it otherwise would have to object to disclosing or producing any information or item on any ground not addressed in this Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Order. 15.4 Effective Pending Approval. The parties agree that, pending approval by the Court, this Stipulated Supplemental Protective Order shall be effective as if approved and, specifically, that any -16DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 violation of its terms shall be subject to the same sanctions and penalties as if this Stipulated Supplemental Protective Order had been entered by the Court. 15.5 Retained Jurisdiction. The Court shall retain jurisdiction to enforce this Stipulated Supplemental Protective Order after Final Disposition, unless the Order is vacated. 15.6 Modification. In the event any party seeks to amend or vary the terms of this Protective Order, said party shall make such request in the form of a written stipulation or noticed motion. IT IS SO ORDERED. Dated: __________________________, Marilyn Hall Patel United States District Judge -17DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT A AGREEMENT TO BE BOUND BY PROTECTIVE ORDER I, ______________________, declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California in the case of RealNetworks, Inc., et al. v. DVD Copy Control Association, et al., Case No. 08-CV-04548 MHP. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner, nor take any actions that would lead to the disclosure of, any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. Printed Name: __________________________________________________________ Address: _______________________________________________________________ Present Employer: _______________________________________________________ Designated as Expert for (if applicable): ______________________________________ Date: ________________________________ City and State where sworn and signed: ___________________________________________ Signature: _______________________________________ A-1 DISCOVERY PROTECTIVE ORDER CASE NO. C08 04548 MHP 6211061.1

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