Vasudevan Software, Inc. v. TIBCO Software, Inc. et al

Filing 65

STIPULATED PROTECTIVE ORDER. Signed by Judge Richard Seeborg on 4/4/12. (cl, COURT STAFF) (Filed on 4/5/2012)

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[Attorneys Listed on Signature Page]

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION

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VASUDEVAN SOFTWARE, INC.,

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Case No. 3:11-06638-RS

Plaintiff,
STIPULATED PROTECTIVE ORDER
vs.
TIBCO SOFTWARE INC.,

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Defendant.

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1.

PURPOSES AND LIMITATIONS

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

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confidential, proprietary, or private information for which special protection from public disclosure

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and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,

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the parties hereby stipulate to and petition the court to enter the following Stipulated Protective

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Order. The parties acknowledge that this Order does not confer blanket protections on all

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disclosures or responses to discovery and that the protection it affords from public disclosure and

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

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the applicable legal principles. The parties further acknowledge, as set forth in Section 14.3, below,

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that this Stipulated Protective Order does not entitle them to file confidential information under

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seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be followed

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

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under seal.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of

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Civil Procedure 26(c).
2.3

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Counsel (without qualifier): Outside Counsel of Record (as well as their support

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Designating Party: a Party or Non-Party that designates information or items that it

staff).

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produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY

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

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CODE.”
2.5

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

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medium or manner in which it is generated, stored, or maintained (including, among other things,

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testimony, transcripts, and tangible things), that are produced or generated in disclosures or

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responses to discovery in this matter.
2.6

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

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the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as

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a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s

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competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or

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of a Party’s competitor.
2.7

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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Items: extremely confidential, proprietary, or sensitive “Confidential Information or Items,” where

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the Producing Party reasonably believes that disclosure of which to another Party or Non-Party

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would create a substantial risk of economic harm or significant competitive disadvantage to the

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Producing Party.

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2.8

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

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sensitive “Confidential Information or Items” representing computer code and associated

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comments and revision histories, formulas, engineering specifications, or schematics that define or

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otherwise describe in detail the algorithms or structure of software or hardware designs, where the

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Producing Party reasonably believes that disclosure of which to another Party or Non-Party would

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create a substantial risk of economic harm or significant competitive disadvantage to the Producing

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Party.
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2.9

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Counsel does not include Outside Counsel of Record or any other outside counsel.
2.10

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

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

entity not named as a Party to this action.
2.11

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

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

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.13

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

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

Material in this action.
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Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing,

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storing, or retrieving data in any form or medium) and their employees and subcontractors.
2.15

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Protected Material: any Disclosure or Discovery Material that is designated as

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

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“HIGHLY CONFIDENTIAL – SOURCE CODE.”
2.16

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

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Producing Party.

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3.

SCOPE

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

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2) all

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copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulation and Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a

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Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a

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result of publication not involving a violation of this Order, including becoming part of the public
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record through trial or otherwise; and (b) any information known to the Receiving Party prior to the

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disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the

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information lawfully and under no obligation of confidentiality to the Designating Party. Any use

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of Protected Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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Even after final disposition of this litigation, the confidentiality obligations imposed by this

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Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order

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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and

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defenses in this action, with or without prejudice; and (2) final judgment herein after the

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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

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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. To the
extent it is practical to do so, 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.
Mass, indiscriminate, or routinized designations are prohibited. 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.
If it comes to a Designating 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 Designating Party must promptly notify all other parties that it is withdrawing the
mistaken designation.
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5.2

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

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(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,

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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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(a) for information in documentary form (e.g., paper or electronic documents, but

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excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party

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affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page or computer-readable

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medium that contains protected material. If only a portion or portions of the material qualifies for

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protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making

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appropriate markings in the margins) and must specify, for each portion, the level of protection

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being asserted.

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

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need not designate them for protection until after the inspecting Party has indicated which material

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it would like copied and produced. During the inspection and before the designation, all of the

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material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,

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

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

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

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CODE) to each page that contains Protected Material. If only a portion or portions of the material

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qualifies for protection, the Producing Party also must clearly identify the protected portion(s)

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(e.g., by making appropriate markings in the margins) and must specify, for each portion, the level

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of protection being asserted.

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(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

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Designating Party identify on the record, before the close of the deposition, hearing, or other
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proceeding, all protected testimony and specify the level of protection being asserted. When it is

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impractical to identify separately each portion of testimony that is entitled to protection and it

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appears that substantial portions of the testimony may qualify for protection, the Designating Party

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may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right

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to have up to 21 days to identify the specific portions of the testimony as to which protection is

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sought and to specify the level of protection being asserted. Only those portions of the testimony

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

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provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at

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the deposition or up to 21 days afterwards if that period is properly invoked, that the entire

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transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.”

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Parties intending to use or otherwise disclose Protected Material shall give the other parties

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notice if they reasonably expect a deposition, hearing or other proceeding to include Protected

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Material so that the other parties can ensure that only authorized individuals who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those proceedings. The

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use of a document as an exhibit at a deposition shall not in any way affect its designation as

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

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Transcripts containing Protected Material shall have an obvious legend on the title page that

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the transcript contains Protected Material, and the title page shall be followed by a list of all pages

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(including line numbers as appropriate) that have been designated as Protected Material and the

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level of protection being asserted by the Designating Party. The Designating Party shall inform the

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court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-

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day period for designation shall be treated during that period as if it had been designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After

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the expiration of that period, the transcript shall be treated only as actually designated. Any rough

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transcript shall be treated pursuant to the designations for the final transcript.

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

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other tangible items, that the Producing Party affix in a prominent place on the exterior of the
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container or containers in which the information or item is stored the legend “CONFIDENTIAL”

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

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– SOURCE CODE.” If only a portion or portions of the information or item warrant protection, the

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Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the

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level of protection being asserted.
5.3

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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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designate qualified information or items does not, standing alone, waive the Designating Party’s

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is treated

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in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality

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designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic

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burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to

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challenge a confidentiality designation by electing not to mount a challenge promptly after the

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original designation is disclosed.

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6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution process

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by providing written notice of each designation it is challenging and describing the basis for each

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

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recite that the challenge to confidentiality is being made in accordance with this specific paragraph

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of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must

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begin the process by conferring directly (in voice to voice dialogue; other forms of communication

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are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not proper and

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must give the Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge process only if it
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has engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.
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Judicial Intervention. If the Parties cannot resolve a challenge without court

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intervention, the Party that elects to press a challenge to the confidentiality designation after

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considering the justification offered by the Designating Party may file and serve a motion under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if

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applicable) within 28 days of the initial notice of challenge or within 14 days of the parties

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agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. The

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motion shall identify the challenged material and set forth in detail the basis for the challenge.

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Each such motion must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed in the preceding paragraph. Failure by

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the Challenging Party to make such a motion including the required declaration within 28 days (or

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14 days, if applicable) shall automatically waive the right of the Challenging Party to contest the

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

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confidentiality designation at any time if there is good cause for doing so, including a challenge to

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the designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

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this provision must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding paragraph.

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

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Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose

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unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.

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All parties shall continue to afford the material in question the level of protection to which it is

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

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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produced by another Party or by a Non-Party in connection with this case only for prosecuting,

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. When the litigation has
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been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL

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DISPOSITION).

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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

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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:

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

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

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information for this litigation;

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

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Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed

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

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(c) experts (as defined in this Order) of the Receiving Party to whom disclosure is

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

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to Be Bound” (Exhibit A) and to whom the procedures set forth in paragraph 7.5(a), below, have

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been followed, and their regularly employed support personnel (such as administrative assistants,

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secretaries, clerical and administrative staff) as necessarily incident to the Litigation;

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(d) the Court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, mock jurors

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

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

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

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed

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deposition testimony or exhibits to depositions that reveal Protected Material must be separately

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bound by the court reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order;
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(g) during depositions, current employees of the Producing Party that produced the

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documents or information;
(h) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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

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

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information for this litigation;

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(b) to the extent disclosure is limited to annual revenue by product and annual unit

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sales by product, Helen Vasudevan, but (1) only upon designation of the information as subject to

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this Section in writing by the Producing Party, and (2) only after Helen Vasudevan has signed the

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

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(c) to the extent disclosure is limited to the value and scope of any patent licenses,

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James Knox, but (1) only upon designation of information as subject to this Section in writing by

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the Producing Party, and (2) only after James Knox has signed the “Acknowledgment and

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Agreement to Be Bound”) (Exhibit A);

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(d) experts of the Receiving Party (1) to whom disclosure is reasonably necessary

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for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.5(a), below, have been

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followed, and their regularly employed support personnel (such as administrative assistants,

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secretaries, clerical and administrative staff) as necessarily incident to the Litigation;

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(e) the Court and its personnel;

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(f) court reporters and their staff, professional jury or trial consultants, mock jurors

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

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have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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(g) during their depositions, witnesses in the action to whom disclosure is

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

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(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

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separately bound by the court reporter and may not be disclosed to anyone except as permitted

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under this Stipulated Protective Order;
(h) during depositions, current employees of the Producing Party that produced the

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documents or information.
(i) the author or recipient of a document containing the information or a custodian or

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other person who otherwise possessed or knew the information.
7.4

Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

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

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Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –

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SOURCE CODE” only to:

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

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

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information for this litigation;

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(b) experts of the Receiving Party (1) to whom disclosure is reasonably necessary

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for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.5(a), below, have been

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followed, and their regularly employed support personnel (such as administrative assistants,

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secretaries, clerical and administrative staff) as necessarily incident to the Litigation;

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(c) the Court and its personnel;

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(d) court reporters and their staff, professional jury or trial consultants, mock jurors

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and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who

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

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(e) current employees of the Producing Party that have access to the source code in
their normal course of business; and
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(f) the author or recipient of the source code or a custodian or other person who

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otherwise possessed or knew the information.

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7.5 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL –

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

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or Items to Experts.

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

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Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item

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produced by another Party or Non-Party that has been designated “CONFIDENTIAL,” “HIGHLY

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

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CODE” pursuant to paragraphs 7.2(c), 7.3(d) and 7.4(b) first must make a written request to the

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

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

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

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compensation or funding for work in his or her areas of expertise or to whom the expert has

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provided professional services, including in connection with a litigation, at any time during the

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preceding five years,1 and (5) identifies (by name and number of the case, filing date, and location

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of court) any litigation in connection with which the Expert has offered expert testimony, including

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

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

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

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Expert unless, within seven court days of delivering the request, the Party receives a written

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objection from the Designating Party. Any such objection must set forth in detail the grounds on

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which it is based.

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

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Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement

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

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within seven court days of the written objection. If no agreement is reached, the Party seeking to

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make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in

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compliance with Civil Local Rule 79-5 and General Order 62, if applicable) seeking permission

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from the court to do so. Any such motion must describe the circumstances with specificity, set

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forth in detail the reasons why the disclosure to the Expert is reasonably necessary, assess the risk

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of harm that the disclosure would entail, and suggest any additional means that could be used to

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reduce that risk. In addition, any such motion must be accompanied by a competent declaration

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

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

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for its refusal to approve the disclosure.

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

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proving that the risk of harm that the disclosure would entail (under the safeguards proposed)

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outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.

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8.

PROSECUTION AND COMPETITIVE DECISION-MAKING BAR

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(a) Absent written consent from the Producing Party, any individual who receives

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

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CONFIDENTIAL – SOURCE CODE” information shall not be involved in the prosecution of

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patents or patent applications relating to business intelligence software, including without

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

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

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including the United States Patent and Trademark Office (“the Patent Office”). For purposes of this

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paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or otherwise

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affecting the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as used in

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this paragraph does not include representing a party challenging or defending a patent before a

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domestic or foreign agency (including, but not limited to, a reissue protest, ex parte reexamination

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or inter partes reexamination). This Prosecution Bar shall begin when access to “HIGHLY

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

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CODE” information is first received by the affected individual and shall end two (2) years after
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final termination of this action.

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(b) Notwithstanding any other provisions of this Order, absent the written consent

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of the Producing Party, any individual, including all Experts and Helen Vasudevan (except insofar

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as she is permitted access to certain information specifically provided for in § 7.3(b) of this Order),

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that has access pursuant to this Order to information designated as “HIGHLY CONFIDENTIAL -

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ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL - SOURCE CODE” shall not be

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involved in competitive decision-making, as defined by U.S. Steel Corp. v. United States, 730 F.2d

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1465, 1468 n.3 (Fed. Cir. 1984). The terms of this Section shall not, however, be interpreted to

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mean that a Producing Party may prevent an individual from competitive decision-making after or

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as a result of directing that individual to view information designated as “HIGHLY

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CONFIDENTIAL - ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL - SOURCE

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CODE” at a deposition, trial or otherwise. Further, this competitive decision-making bar shall not

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be interpreted to bar any counsel who has viewed “HIGHLY CONFIDENTIAL - ATTORNEYS’

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EYES ONLY” or “HIGHLY CONFIDENTIAL - SOURCE CODE” from representing or

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consulting with a party challenging or defending a patent before a domestic or foreign agency

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(including, but not limited to, a reissue protest, ex parte reexamination or inter partes

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reexamination).

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9.

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SPECIAL PROTECTIONS FOR SOURCE CODE
(a)

To the extent production of source code becomes necessary in this case, a

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Producing Party may designate source code as “HIGHLY CONFIDENTIAL – SOURCE CODE” if

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it comprises or includes confidential, proprietary or trade secret source code.

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(b)

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

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

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ATTORNEYS’ EYES ONLY” information, including the Prosecution Bar set forth in Paragraph 8,

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and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL – SOURCE

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CODE” information may be disclosed, as set forth in Paragraph 7.4.

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(c)

Any source code produced in discovery shall be made available for

inspection, in a format allowing it to be reasonably reviewed and searched (which will be the same
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format as the Producing Party provides any source code to its own experts), during normal business

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hours or at other mutually agreeable times, at a location that is reasonably convenient for the

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Receiving Party and any experts to whom the source code may be disclosed, or another mutually

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agreed upon location. The source code shall be made available for inspection on one secured

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computer in a secured room without Internet access or network access to other computers, and the

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

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any recordable media or recordable device. The receiving party must provide 14 days’ notice

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before the initial inspection of the source code for any product. For any source code that has

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previously been inspected, the receiving party must provide 7 days’ notice if it would like to

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review the source code in a different mutually agreeable location than where the initial source code

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inspection occurred. For subsequent inspections of previously inspected source code at the same

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location where the source code was previously inspected, the receiving party need only provide 3

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business days’ notice. Any source code inspections that occur in connection with this litigation

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prior to the entry of this protective order shall constitute an initial inspection for the purposes of

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this provision. For avoidance of any doubt, the Receiving Party and its representatives may have

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access to their own computer while reviewing source code, and the computer may be connected to

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the Internet.
(d)

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The Receiving Party may only request paper copies of limited portions of

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source code that are reasonably necessary to facilitate the Receiving Party’s preparation in this

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Litigation, including to prepare court filings, pleadings, expert reports, or other papers, or for

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deposition or trial; to prepare internal attorney work product materials; or to prepare other

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necessary case materials such as consulting expert written analyses and related drafts and

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correspondence. The Producing Party shall provide all such source code in paper form including

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bates numbers and the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing

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Party may challenge the amount of source code requested in hard copy form pursuant to the dispute

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

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

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resolution.
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(e)

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The Receiving Party shall maintain a record of any individual, other than

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Outside Counsel of Record, who has inspected any portion of the source code in electronic or paper

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form. The Receiving Party shall maintain all paper copies of any printed portions of the source

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code in a secured, locked area. The Receiving Party shall not create any electronic or other images

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

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any electronic format, except for use in an expert report. The Receiving Party shall only make

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

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pleadings, or other papers (including a testifying expert’s expert report), (2) necessary for

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

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a deposition shall be retrieved by the Producing Party at the end of each day and must not be given

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to or left with a court reporter or any other individual.

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10.

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PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

compels disclosure of any information or items designated in this action as “CONFIDENTIAL,” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
SOURCE CODE” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order;
(b) promptly notify in writing 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 subject to
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(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 Party 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” or
“HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court from which

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the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The

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Designating Party shall bear the burden and expense of seeking protection in that court of its

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confidential material – and nothing in these provisions should be construed as authorizing or

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

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11.

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A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a)

Party in this action and designated as “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such
information produced by Non-Parties in connection with this litigation is protected by the remedies
and relief provided by this Order.
(b)

with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall,
after entry of this Order:
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 Non-Party;

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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

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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

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

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

If the Non-Party fails to object or seek a protective order from this 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 NonParty 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-Party before a
determination by the court. 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.

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12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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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 Party
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.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

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

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

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received the information of the claim and the basis for it. After being notified, a party must

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promptly return or destroy the specified information and any copies it has and may not sequester,

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use or disclose the information until the claim is resolved.

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14.

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13.

MISCELLANEOUS
14.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.
14.2

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

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no Party waives any right it otherwise would have to object to disclosing or producing any

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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the material covered by

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this Protective Order.

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14.3

Filing Protected Material. Without written permission from the Designating Party or

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a court order secured after appropriate notice to all interested persons, a Party may not file in the

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public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected

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Material may only be filed under seal pursuant to a court order authorizing the sealing of the

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specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a
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sealing order will issue only upon a request establishing that the Protected Material at issue is

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privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a

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Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d)

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and General Order 62 is denied by the court, then the Receiving Party may file the Protected

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Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by

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the court.
14.4

7

Expert Discovery. The parties agree that expert discovery will be governed by the

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default limitations contained in the Federal Rules of Civil Procedure and that communications with

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experts will not be discoverable unless expressly relied on by a testifying expert.

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15.

FINAL DISPOSITION

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Within 60 days after the final disposition of this action, as defined in paragraph 4,

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each Receiving Party must return all Protected Material to the Producing Party or destroy such

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material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,

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compilations, summaries, and any other format reproducing or capturing any of the Protected

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Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit

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

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Designating Party) by the 60-day deadline that

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

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

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

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

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

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product, even if such materials contain Protected Material. Any such archival copies that contain or

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constitute Protected Material remain subject to this Protective Order as set forth in Section 4

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(DURATION).

all the Protected Material was returned or

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1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: April 4, 2012
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By: Brooke A.M. Taylor (by permission EJE)______
Brooke A. M. Taylor
Lead Attorney
WA Bar No. 33190 (Admitted Pro Hac Vice)
[e-mail]
Jordan W. Connors
WA Bar No. 41649 (Admitted Pro Hac Vice)
[e-mail]
SUSMAN GODFREY L.L.P.
1201 Third Avenue, Suite 3800
Seattle, Washington 98101-3000
T: [phone]
F: [phone] (fax)

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Stephen E. Morrissey
CA Bar 187865
[e-mail]
SUSMAN GODFREY L.L.P.
1901 Avenue of the Stars, Suite 950
Los Angeles, CA 90067-6029
T: [phone]
F: [phone] (fax)

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Michael F. Heim
TX Bar No. 09380923 (Admitted Pro Hac Vice)
[e-mail]
Leslie V. Payne
TX Bar No. 00784736 (Admitted Pro Hac Vice)
[e-mail]
Eric J. Enger
TX Bar No. 24045833 (Admitted Pro Hac Vice)
[e-mail]
Nick P. Patel
TX Bar No. 24076610 (Admitted Pro Hac Vice)
[e-mail]
HEIM, PAYNE & CHORUSH, LLP
600 Travis Street, Suite 6710
Houston, Texas 77002-2912
T: [phone]
F: [phone](fax)

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Attorneys for Plaintiff
VASUDEVAN SOFTWARE, INC.

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Dated: April 4, 2012

By: Robert A. Appleby (by permission EJE)_____
Robert A. Appleby (Admitted pro hac vice)
[e-mail]
Joseph A. Loy (Admitted pro hac vice)
[e-mail]
Martin A. Galese (Admitted pro hac vice)
20

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3
4
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[e-mail]
KIRKLAND & ELLIS LLP
601 Lexington Avenue
New York, NY 10022-4675
Telephone: [phone]
Facsimile: [phone]
Sarah E. Piepmeier (SBN 227094)
[e-mail]
KIRKLAND & ELLIS LLP
555 California Street
San Francisco, CA 94104
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
TIBCO SOFTWARE INC

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
4/4/12
DATED: ________________________ _____________________________________
[Hon. Richard Seeborg]
United States District Court Judge

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EXHIBIT A

1
2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I,

_____________________________

[print

or

type

full

name],

of

4

_________________ [print or type full address], declare under penalty of perjury that I have read

5

in its entirety and understand the Stipulated Protective Order that was issued by the United States

6

District Court for the Northern District of California in the case of Vasudevan Software, Inc. v.

7

TIBCO Software, Inc., Case No. 3:11-06638-RS. I agree to comply with and to be bound by all the

8

terms of this Stipulated Protective Order and I understand and acknowledge that failure to so

9

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

10

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

11

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

12

of this Order.

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

14

Northern District of California for the purpose of enforcing the terms of this Stipulated Protective

15

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

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

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_______________________________________ [print or type full address and telephone number]

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as my California agent for service of process in connection with this action or any proceedings

19

related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
[printed name]

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Signature: __________________________________
[signature]

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12999-v7/1024-0020

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