Miller v. Facebook, Inc. et al

Filing 90

Declaration of Julio C. Avalos in Support of 89 Statement of Non-Opposition filed byFacebook, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G)(Related document(s) 89 ) (Avalos, Julio) (Filed on 11/23/2010)

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Miller v. Facebook, Inc. et al Doc. 90 Att. 3 EXHIBIT C Dockets.Justia.com Dalton, Amy From: Sent: T o: Cc: Subject: Attachments: Brian, Please find attached Facebook's proposed edits to the protective order. W e had an issue with respect to tracking changes in the document. In order to allow you to pinpoint our changes, we went ahead and ran a comparison between our proposal and the original court document. This comparison is also attached hereto. The original document is on the left column, with our proposed draft on the right. Lines highlighted in red have been redacted; material underlined in blue has been added. If you have any proposed edits of your own, please go ahead and make them in the .doc file, with track changes on. Thanks, Julio Avalos, Julio Tuesday, October 19, 2010 4:15 PM 'Brian Hancock' Gray, Thomas; Metanat, Morvarid; Dalton, Amy; Kim, Elizabeth RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Comparison Protective Order.pdf; 261003008(4)_Miller Protective Order DRAFT.DOC JULIO AVALOS attorney at law ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 MARSH ROAD MENLO PARK, CA 94025-1015 tel 650.289.7184 javalos@orrick.com www.orrick.com From: Brian Hancock [mailto:bdhancock@hgdlawfirm.com] Sent: Wednesday, October 13, 2010 3:11 PM To: Avalos, Julio Cc: Gray, Thomas; Dalton, Amy Subject: RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Julio, Thank you for this information. As described in your e-mail below, I have no problem with the confidentiality distinctions. I look forward to receiving the approved mark-ups from your client. 1 Thanks, Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 (205) 327-9112 (direct) (205) 326-3336 (office) (205) 326-3332 (fax) bdhancock@hgdlawfirm.com The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any. From: Avalos, Julio [mailto:javalos@orrick.com] Sent: Wednesday, October 13, 2010 1:32 PM To: Brian Hancock Cc: Gray, Thomas; Dalton, Amy Subject: RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Brian, My Outlook says that I replied to you yesterday at 3:10 p.m. PST, but I don't see the e-mail in m y sent mail. I apologize if you're receiving a duplicate e-mail. W e have sent our proposed markup of the protective order to the client and are awaiting their sign-off. The major edit that we have made to the order relates to creating different categories of protected documents. So for instance we're proposing that rather than having one catch-all category, we would have a base level of protection for documents marked CONFIDENTIAL and then a higher-level of protection for documents marked HIGHLY CONFIDENTIAL. Highly confidential documents would be, with limited exceptions, attorneys' eyes only. In addition to attorneys, such documents might be disclosed to experts to whom disclosure is reasonably necessary for this litigation and who have signed an acknowledgment to be bound by the PO, the court and its personnel, court reporters, and the author of the document or the original source of the information. W hile we await our client's feedback on the PO, perhaps we could get started discussing any issues that you anticipate with respect to this new category of protection. You have also asked about an anticipated timeline within which we expect to supplement our discovery responses. W e are in the process of collecting responsive information and expect to be interviewing possible custodians of records later this week. W e are aiming to serve supplemental responses shortly thereafter. JULIO AVALOS attorney at law ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 MARSH ROAD MENLO PARK, CA 94025-1015 2 tel 650.289.7184 javalos@orrick.com www.orrick.com From: Brian Hancock [mailto:bdhancock@hgdlawfirm.com] Sent: Tuesday, October 12, 2010 3:01 PM To: Avalos, Julio Cc: Gray, Thomas Subject: RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Julio, What's the status of the PO? Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 (205) 327-9112 (direct) (205) 326-3336 (office) (205) 326-3332 (fax) bdhancock@hgdlawfirm.com The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any. From: Avalos, Julio [mailto:javalos@orrick.com] Sent: Friday, October 08, 2010 10:48 AM To: Brian Hancock Cc: Gray, Thomas Subject: Re: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Brian, I apologize for the delay with the PO. I got into a fairly serious car wreck and haven't been able to mark it up. I'm hoping to send it to you later today or Monday. Thanks, Julio From: Avalos, Julio Sent: Tuesday, October 05, 2010 09:44 PM To: 'Brian Hancock' <bdhancock@hgdlawfirm.com> 3 Subject: RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Brian, I'll work up the W ord document and send to you tomorrow. Thanks From: Brian Hancock [mailto:bdhancock@hgdlawfirm.com] Sent: Tuesday, October 05, 2010 11:41 AM To: Avalos, Julio Subject: Re: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Julio, I'm afraid I don't. I'm going to be in trial until Thursday. Would you mind drawing up a Word copy incorporating my previously discussed revision to the standard order and then including Facebook's edits to the standard order and then forwarding for my review? Does Facebook have any edits? Sent from my iPhone On Oct 5, 2010, at 12:37 PM, "Avalos, Julio" <javalos@orrick.com> wrote: Brian, Do you have a word document of the protective order with your proposed edit? It would be easier to exchange markups in a common file. JULIO AVALOS attorney at law ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 MARSH ROAD MENLO PARK, CA 94025-1015 tel 650.289.7184 javalos@orrick.com www.orrick.com From: Brian Hancock [mailto:bdhancock@hgdlawfirm.com] Sent: Friday, October 01, 2010 11:56 AM To: Avalos, Julio Subject: RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses 4 Ok. Thanks. Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 (205) 327-9112 (direct) (205) 326-3336 (office) (205) 326-3332 (fax) bdhancock@hgdlawfirm.com The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any. From: Avalos, Julio [mailto:javalos@orrick.com] Sent: Friday, October 01, 2010 10:48 AM To: Brian Hancock Subject: Re: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Brian, I'll confirm with my client, but I think we can accept this edit. I'll send you any proposed edits from our side, if any, by Tuesday. Thanks, Julio From: Brian Hancock [mailto:bdhancock@hgdlawfirm.com] Sent: Tuesday, September 28, 2010 04:20 PM To: Avalos, Julio Subject: RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Julio, The only mark-up I have is to Paragraph 5.2(b). I would request that it read as follows: 5 "for testimony given in deposition or in other pretrial or trial proceedings, unless otherwise designated before the close of a deposition, pre-trial or trial proceeding, testimony given therein shall be treated as "CONFIDENTIAL" for at least fifteen (15) calendar days after the final transcript has been sent by the court reporter to counsel for the Producing Party whose information has been disclosed (or until such other date as may be agreed upon by the parties.) Receipt of rough transcripts shall not trigger this 15-day period. Such testimony may be designated "CONFIDENTIAL" during the 15-day (or other agreed) period by written notice to all counsel indicating the specific testimony to be designated (by page and line or other specific reference). Unless so designated, any confidentiality is waived after the expiration of the 15-day (or other agreed) period, unless otherwise stipulated or ordered." This should relieve the parties of having to identify on the record, before the close of the deposition and without the benefit of a transcript, which testimony should appropriately be designated as confidential. The Plaintiff has no other proposed mark-ups to the Standard Order. Should Facebook have any mark-ups or revisions, please provide me with a copy of same for my review at your earliest convenience. Should you have any questions or comments, please do not hesitate to contact me. Sincerely, Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 (205) 327-9112 (direct) (205) 326-3336 (office) (205) 326-3332 (fax) bdhancock@hgdlawfirm.com The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any. From: Avalos, Julio [mailto:javalos@orrick.com] Sent: Tuesday, September 28, 2010 5:08 AM To: Brian Hancock Subject: RE: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Mr. Hancock, 6 W e are generally amenable to the Standard Model Protective Order. In order to begin exchanging edits, please send us a document file containing the order along with any markups that you may have. Julio From: Brian Hancock [mailto:bdhancock@hgdlawfirm.com] Sent: Wednesday, September 22, 2010 8:14 AM To: Chatterjee, I. Neel; Gray, Thomas; Avalos, Julio; Sutton, Theresa A. Subject: FW: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses As an addendum to the previous email (see below), the Plaintiff is willing to stipulate to the entry of the Standard Model Protective Order last updated on June 9, 2010, that is provided by the Court on its website. (http://www.cand.uscourts.gov/cand/form.nsf/7813fd3053452aef88256d4a0058fb31/5e428ee77b f8e03b88256dd3005d9450?OpenDocument) Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 (205) 327-9112 (direct) (205) 326-3336 (office) (205) 326-3332 (fax) bdhancock@hgdlawfirm.com The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any. From: Brian Hancock Sent: Wednesday, September 22, 2010 8:31 AM To: Chatterjee, I. Neel; 'Gray, Thomas'; Avalos, Julio; Sutton, Theresa A. Subject: Miller v. Facebook, Inc. & Yeo/Past Due Discovery Responses Dear Counsel, Facebook's responses to Plaintiff's First Consolidated Discovery Requests are more than a month past due. Please have your client fully respond to these requests within the next ten (10) days so as to avoid having to involve the Court. If it is Facebook's position that it cannot 7 produce all responsive documents requested until the entry of a protective order, please forward a draft of the desired protective order for my review within the next five (5) days. Should Facebook be unwilling to comply with these demands, please let me know immediately so that the Plaintiff can take appropriate action with the Court. Please contact me should you have any questions or comments. Sincerely, Brian D. Hancock, Esq. Heninger Garrison Davis, LLC 2224 1st Avenue North Birmingham, AL 35203 (205) 327-9112 (direct) (205) 326-3336 (office) (205) 326-3332 (fax) bdhancock@hgdlawfirm.com The contents of this e-mail message and any attachments are confidential and are intended solely for addressee. The information may also be legally privileged. This transmission is sent in trust, for the sole purpose of delivery to the intended recipient. If you have received this transmission in error, any use, reproduction or dissemination of this transmission is strictly prohibited. If you are not the intended recipient, please immediately notify the sender by reply e-mail or phone and delete this message and its attachments, if any. =========================================================== IRS Circular 230 disclosure: To ensure compliance with requirements imposed by the IRS, we inform you that any tax advice contained in this communication, unless expressly stated otherwise, was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matter(s) addressed herein. =========================================================== NOTICE TO RECIPIENT: THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION, AND MAY BE A COMMUNICATION PRIVILEGED BY LAW. IF YOU RECEIVED THIS EMAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR 8 SYSTEM. THANK YOU IN ADVANCE FOR YOUR COOPERATION. For more information about Orrick, please visit http://www.orrick.com/ =========================================================== 9 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 1. PURPOSES AND LIMITATIONS v. FACEBOOK, INC. and YAO WEI YEO, Defendants. DANIEL M. MILLER Plaintiff, Case No. CV-10-264 STIPULATED PROTECTIVE ORDER FOR STANDARD LITIGATION UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA 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 may be warranted. Accordingly, the parties hereby 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 from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 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 the standards that will be applied when a part y seeks permission from the court to file material under seal. 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c). 2.3 "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items" whose disclosure to another Party or non-party would create a substantial risk of serious injury that could not be avoided by less restrictive means. 2.4 "HIGHLY CONFIDENTIAL--SOURCE CODE" Information or Items: extremely sensitive "Confidential Information or Items" representing computer code and associated comments and revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software of hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. 2.5 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.6 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE." 2.7 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter. -2- 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 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action. 2.9 House Counsel: attorneys who are employees of a party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel. 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this action but are retained to represent or advise a party to this action and have appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 2.12 Part y: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.14 Professional Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors. 2.15 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE." 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) -3- 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 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. Any use of Protected Material at trial shall be governed by a separate agreement or order. 4. DURATION Even after final disposition 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. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this action, with prejudice; and (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions or applications for extension of time pursuant to applicable law. 5. DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Part y or Non-Party that designates information or items for protection under this Order will take due care to limit any such designation to specific material that qualifies under the appropriate standards. The Designating Party must 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. If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection, that Designating 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, Disclosure or Discovery Material that qualifies for protection under this Order must be clearl y so designated before the material is disclosed or produced. Designation in conformity with this Order requires: -4- 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 (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Part y affix the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE" in the margin of each page that contains protected material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted (either "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY"). 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," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE") at the top of each page that contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection asserted (either "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE"). (b) for testimony given in deposition or in other pretrial or trial proceedings, unless otherwise designated before the close of deposition, pre-trial or trial proceedings, testimony given therein shall be treated as "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY" for at least fifteen (15) Calendar days after the final transcript has been sent by the court -5- 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 reporter to counsel for the Producing Part y whose information has been disclosed (or until such other date as may be agreed upon by the parties). Receipt of rough transcripts shall not trigger this 15-day period. Such testimony may be designated "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE" during the 15-day (or other agreed upon) period by written notice to all counsel indicating the specific testimony to be designated (by page and line numbers or other specific reference) and the level of protection being asserted ("CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE"). Unless so designated, any confidentiality is waived after the expiration of the 15-day (or other agreed upon) period, unless otherwise stipulated or ordered. (c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE." If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s), specifying whether they qualify as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE." 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate qualified information or items as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE" 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," "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL--SOURCE CODE" after the material was initially produced, the Receiving Part y must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order. -6- 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 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Part y or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet and Confer. The Challenging Part y shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentialit y 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 Part y may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner. 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, the Designating Part y shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to -7- 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 make such a motion including the required declaration within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for each challenged designation. In addition, the Challenging Party may file a motion challenging a confidentiality designation at any time if there is good cause for doing so, including a challenge to the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on other parties) may expose the Challenging Part y to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to file a motion to retain confidentiality as described above, 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 until the court rules on the challenge. 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, or attempting to settle this litigation. 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 13 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 or Items. 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 -8- 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 employees of said Outside Counsel of Record 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 "Acknowledgment and Agreement to Be Bound" (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 "Acknowledgment and Agreement to Be Bound" (Exhibit A); (d) (e) the court and its personnel; court reporters and their staff, professional jury or trial consultants, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonabl y necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal 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. (g) the author of the document or the original source of the information. . 7.3 Disclosure of "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY" and "HIGHLY CONFIDENTIAL--SOURCE CODE" Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Part y may disclose any information or item designated "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY" and "HIGHLY CONFIDENTIAL--SOURCE CODE" only to: (a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation; (b) Experts of the Receiving Party (as defined in this Order) (1) to whom -9- 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 disclosure is reasonably necessary for this litigation, (2) who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4, below, have been followed; (d) (e) the court and its personnel; court reporters and their staff, professional jury or trial consultants, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and (f) the author of the document or the original source of the information. 7.4 Procedures for Approving Disclosure of "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY" Information or Items to "Experts": (a) Unless otherwise ordered by the court or agreed in writing by the Designating Party, a Party that seeks to disclose to an "Expert" (as defined in this Order) any information or item that has been designated "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY" first must make a written request to the Designating Party that (1) sets forth the full name of the Expert and the city and state of his or her primary residence, (2) attaches a copy of the Expert's current resume, and (3) identifies the Expert's current employer(s). (b) A party that makes a request and provides the information specified in the preceding paragraph may disclose the subject Protected Material to the identified Expert unless, within ten court days of delivering the request, the Party receives a written objection from the Designating Party. Any such objection must set forth in detail the grounds on which it is based, and must provide times during which the Designating Part y is available to meet and confer on the issue during the succeeding three business days. (c) A Party that receives a timel y written objection must meet and confer with the Designating Party (through direct voice to voice dialogue to try to resolve the matter by agreement. If no agreement is reached, the Party seeking to prevent the disclosure to the Expert may file a motion within ten court days of the meet and confer in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable). Failure to bring the motion within the required time period shall be deemed a withdrawal of the objection. Any such motion must - 10 - 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 describe the circumstances and reasons for why the disclosure to the Expert presents a risk of harm and why protection of this Order would not suffice to ameliorate such risk. 8. SOURCE CODE (a) To the extent production of source code becomes necessary in this case, a Producing Party may designate source code as "HIGHLY CONFIDENTIAL--SOURCE CODE" if it is confidential, non-public source code. (b) Protected Material designated as "HIGHLY CONFIDENTIAL--SOURCE CODE" shall be subject to all of the protections afforded to "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY" information, and may be disclosed only to the individuals to whom "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY" information may be disclosed, as set forth in Paragraphs 7.3 and 7.4. (c) Any source code covered by the "HIGHLY CONFIDENTIAL--SOURCE CODE" designation shall be made available for inspection, in a format allowing it to be reasonabl y reviewed and searched, during normal business hours or at other mutually agreeable times, at an office of the Producing Party's Outside Counsel located within the Northern District of California. The source code shall be made available for inspection on a secured computer in a secured room without Internet access or network access to other computers, and the Receiving Part y shall not copy, remove, or otherwise transfer any portion of the source code onto any recordable media or recordable device. The secured computer shall have all external data access ports disabled, including, but not limited to, external media drives, USB slots, and/or peripheral slots. The Producing Party may visually monitor the activities of the Receiving Party's representatives during any source code review, but only to ensure that there is no unauthorized recording, copying, or transmission of the source code. (d) The Receiving Party may request paper copies of limited portions of source code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or other papers, or for deposition or trial, but shall not request paper copies for the purposes of reviewing the source code other than electronically as set forth in paragraph (c) in the first instance. The Producing Party shall provide all such source code in paper form including bates - 11 - 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 numbers and the label "HIGHLY CONFIDENTIAL--SOURCE CODE." The Producing Party may challenge the amount of source code requested in hard copy form pursuant to the dispute resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing Part y is the "Challenging Party" and the Receiving Party is the "Designating Party" for purposes of dispute resolution. (e) The Receiving Party shall maintain a record of any individual who has inspected any portion of the source code in electronic or paper form. The Receiving Part y shall maintain all paper copies of any printed portions of the source code in a secured, locked area. The Receiving Part y shall not create any electronic or other images of the paper copies and shall not convert any of ht information contained in the paper copies into any electronic format. The Receiving Party shall only make additional paper copies if such additional copies are (1) necessary to prepare court filings, pleadings, or other papers (including a testifying expert's expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its case. Any paper copies used during a deposition shall be retrieved by the Producing Party at the end of each day and must not be given to or left with a court reporter or any other individual. 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Receiving Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated by the Designated Part y in this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY," that Party must: (a) notify the Designating Party, in writing (by fax, if possible) immediatel y and in no event more than three court days after receiving the subpoena or order. Such information must include a copy of the subpoena or court order; (b) immediately notify in writing the part y 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 subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and - 12 - 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 Non-Party. (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. If the Designating Part y timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL--ATTORNEYS' EYES ONLY" before a determination by the court from which the subpoena or order issued, unless the Party has obtained the Designating Party's permission. Nothing in these provisions should be construed as authorizing or encouraging a Receiving Part y in this action to disobey a lawful directive from another court. 10. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non- Part y in this action and designated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL-- ATTORNEYS' EYES ONLY." Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections. (b) In the event that a Party is required, by a valid discovery request, to produce a Non-Party's confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party's confidential information, then the Part y shall: 1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a NonPart y; 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and 3. make the information requested available for inspection by the - 13 - 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 (c) If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party's confidential information responsive to the discovery request. If the NonPart y timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Part y before a determination by the court.1 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material. 11. 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 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Part y of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized 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. 12. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently produced material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in an e-discovery order that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or information covered by the attorney-client privilege or work product protection, the parties may incorporate their agreement in the stipulated protective order The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Part y and to afford the Non-Party an opportunity to protect is confidentiality interests in this court. 1 - 14 - 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 submitted to the court. 13. MISCELLANEOUS 13.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 13.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 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 Stipulated Protective Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of the material covered by this Protective Order. 13.3 Filing Protected Material. Without written permission from the Designating Part y 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. Protected Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the information in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 14. FINAL DISPOSITION. Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, summaries, and any other format 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 (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material that was returned or destroyed and (2) - 15 - 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 affirms that the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant and expert work product, even if such materials contain Protected Material. Any such archival copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in Section 4 (DURATION). IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: DATED: Attorneys for Plaintiff DATED: Attorneys for Defendant IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: DATED: William H. Alsup United States District/Magistrate Judge - 16 - 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 Printed name: [signature] Date: City and State where sworn and signed: Printed name: [printed name] I, EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND [print or type full name], of [print or type full address], 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 on [date] in the case of [insert] formal name of the case and the number and initials assigned to it by the court.]. 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 to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint [print or type full name] of [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective Order. - 17 -

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