Twitter, Inc. v. Skootle Corp. et al

Filing 61

STIPULATION AND ORDER re 59 STIPULATION WITH PROPOSED ORDER [Proposed] Stipulated Protective Order filed by Twitter, Inc. Signed by Judge Susan Illston on August 28, 2012. (wsn, COURT STAFF) (Filed on 8/28/2012)

1
2
3
4
5
6

DAVID H. KRAMER, State Bar No. 168452
CHARLES T. GRAVES, State Bar No. 197923
RIANA S. PFEFFERKORN, State Bar No. 266817
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
650 Page Mill Road
Palo Alto, CA 94304-1050
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]

7
8
9
10
11
12
13
14
15
16

Attorneys for Plaintiff
TWITTER, INC.
DOUGLAS WOODRUFF COLT, State Bar No. 210915
THOMAS EDWARD WALLERSTEIN, State Bar No. 232086
NICOLE MICHELLE NORRIS, State Bar No. 222785
COLT/WALLERSTEIN LLP
Shorebreeze II
255 Shoreline Drive, Suite 540
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
[e-mail]
Attorneys for Defendants
SKOOTLE CORP. and JAMES KESTER

17
18
19
20
21
22
23
24
25
26
27

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
TWITTER, INC., a Delaware corporation,

)
)
Plaintiff,
)
)
v.
)
)
SKOOTLE CORP., a Tennessee corporation; and )
JAMES KESTER, an individual,
)
)
Defendants.
)
)
)

CASE NO.: 3:12-cv-1721 SI
[PROPOSED] STIPULATED
PROTECTIVE ORDER

28

[PROPOSED] STIPULATED PROTECTIVE ORDER

CASE NO. 3:12-CV-1721 SI

1

1.

PURPOSES AND LIMITATIONS

2

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

3

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

4

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

5

Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated

6

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

7

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

8

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

9

under the applicable legal principles. The parties further acknowledge, as set forth in Section 13.4,

10

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

11

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

12

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

13

file material under seal.

14

2.

15
16
17

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

18

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

19

of Civil Procedure 26(c).

20
21
22

2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel (as

well as their support staff).
2.4

Designated House Counsel: House Counsel who seek access to “HIGHLY

23

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

24

CODE” information in this matter.

25

2.5

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

26

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

27

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

28

CODE”.

[PROPOSED] STIPULATED PROTECTIVE ORDER

-2-

CASE NO. 3:12-CV-1721 SI

1

2.6

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

2

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

3

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

4

responses to discovery in this matter.

5

2.7

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

6

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

7

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

8

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

9

of a Party’s competitor.

10

2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

11

Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another

12

Party or Non-Party would create a substantial risk of serious harm that could not be avoided by

13

less restrictive means.

14

2.9

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

15

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

16

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

17

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

18

of which to another Party or Non-Party would create a substantial risk of serious harm that could

19

not be avoided by less restrictive means.

20
21
22
23
24

2.10

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.
2.11

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

entity not named as a Party to this action.
2.12

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

25

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

26

on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.

27
28

2.13

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

consultants, retained experts, and Outside Counsel of Record (and their support staffs).

[PROPOSED] STIPULATED PROTECTIVE ORDER

-3-

CASE NO. 3:12-CV-1721 SI

1
2

2.14

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

Material in this action.

3

2.15

Professional Vendors: persons or entities that provide litigation support services

4

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

5

organizing, storing, or retrieving data in any form or medium) and their employees and

6

subcontractors.

7

2.16

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

8

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

9

“HIGHLY CONFIDENTIAL – SOURCE CODE”.

10

2.17

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

11

Producing Party.

12

3.

SCOPE

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

result of publication not involving a violation of this Order, including becoming part of the public

21

record through trial or otherwise; and (b) any information known to the Receiving Party prior to

22

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

23

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

24

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

25

4.

DURATION

26

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

27

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

28

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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-4-

CASE NO. 3:12-CV-1721 SI

1

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

2

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

3

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

4

applicable law.

5

5.

6

DESIGNATING PROTECTED MATERIAL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

7

or Non-Party that designates information or items for protection under this Order must take care to

8

limit any such designation to specific material that qualifies under the appropriate standards. To

9

the extent it is practical to do so, the Designating Party must designate for protection only those

10

parts of material, documents, items, or oral or written communications that qualify – so that other

11

portions of the material, documents, items, or communications for which protection is not

12

warranted are not swept unjustifiably within the ambit of this Order.

13

Mass, indiscriminate, or routinized designations are prohibited. Designations that are

14

shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

15

unnecessarily encumber or retard the case development process or to impose unnecessary

16

expenses and burdens on other parties) expose the Designating Party to sanctions.

17

If it comes to a Designating Party’s attention that information or items that it designated

18

for protection do not qualify for protection at all or do not qualify for the level of protection

19

initially asserted, that Designating Party must promptly notify all other parties that it is

20

withdrawing the mistaken designation.

21

5.2

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

22

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

23

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

24

designated before the material is disclosed or produced.

25
26

Designation in conformity with this Order requires:
(a)

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

27

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

28

Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

[PROPOSED] STIPULATED PROTECTIVE ORDER

-5-

CASE NO. 3:12-CV-1721 SI

1

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains

2

protected material. If only a portion or portions of the material on a page qualifies for protection,

3

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

4

markings in the margins) and must specify, for each portion, the level of protection being asserted.

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

on a page qualifies for protection, the Producing Party also must clearly identify the protected

16

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

17

portion, the level of protection being asserted.

18

(b)

for testimony given in deposition or in other pretrial or trial proceedings,

19

that the Designating Party identify on the record, before the close of the deposition, hearing, or

20

other proceeding, all protected testimony and specify the level of protection being asserted. When

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-6-

CASE NO. 3:12-CV-1721 SI

1

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

2

ATTORNEYS’ EYES ONLY.”

3

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or

4

other proceeding to include Protected Material so that the other parties can ensure that only

5

authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”

6

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition

7

shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

8

– ATTORNEYS’ EYES ONLY.”

9

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

10

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

11

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

12

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

13

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

14

21-day period for designation shall be treated during that period as if it had been designated

15

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise

16

agreed. After the expiration of that period, the transcript shall be treated only as actually

17

designated.

18

(c)

for information produced in some form other than documentary and for any

19

other tangible items, that the Producing Party affix in a prominent place on the exterior of the

20

container or containers in which the information or item is stored the legend “CONFIDENTIAL”

21

or

22

CONFIDENTIAL – SOURCE CODE”. If only a portion or portions of the information or item

23

warrant protection, the Producing Party, to the extent practicable, shall identify the protected

24

portion(s) and specify the level of protection being asserted.

25

“HIGHLY

5.3

CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“HIGHLY

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

26

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

27

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

28

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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-7-

CASE NO. 3:12-CV-1721 SI

1

in accordance with the provisions of this Order.

2

6.

3

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

4

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

5

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

6

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

7

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

8

original designation is disclosed.

9

6.2

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

10

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

11

for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

12

notice must recite that the challenge to confidentiality is being made in accordance with this

13

specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

14

good faith and must begin the process by conferring directly (in voice to voice dialogue; other

15

forms of communication are not sufficient) within 14 days of the date of service of notice. In

16

conferring, the Challenging Party must explain the basis for its belief that the confidentiality

17

designation was not proper and must give the Designating Party an opportunity to review the

18

designated material, to reconsider the circumstances, and, if no change in designation is offered, to

19

explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of

20

the challenge process only if it has engaged in this meet and confer process first or establishes that

21

the Designating Party is unwilling to participate in the meet and confer process in a timely

22

manner.

23

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

24

intervention, the Designating Party shall file and serve a motion to retain confidentiality under

25

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

26

applicable) within 21 days of the initial notice of challenge or within 14 days of the parties

27

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

28

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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-8-

CASE NO. 3:12-CV-1721 SI

1

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

2

the Designating Party to make such a motion including the required declaration within 21 days (or

3

14 days, if applicable) shall automatically waive the confidentiality designation for each

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

sanctions. Unless the Designating Party has waived the confidentiality designation by failing to

13

file a motion to retain confidentiality as described above, all parties shall continue to afford the

14

material in question the level of protection to which it is entitled under the Producing Party’s

15

designation until the court rules on the challenge.

16

7.

17

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

18

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

19

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

20

the categories of persons and under the conditions described in this Order. When the litigation has

21

been terminated, a Receiving Party must comply with the provisions of Section 14 below (FINAL

22

DISPOSITION).

23
24
25

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

26

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

27

information or item designated “CONFIDENTIAL” only to:

28

(a)

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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-9-

CASE NO. 3:12-CV-1721 SI

1

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

2

information for this litigation and who have signed the “Acknowledgment and Agreement to Be

3

Bound” that is attached hereto as Exhibit A;

4

(b)

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

5

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

6

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

7

(c)

Experts (as defined in this Order) of the Receiving Party to whom

8

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

9

and Agreement to Be Bound” (Exhibit A);

10

(d)

the court and its personnel;

11

(e)

court reporters and their staff, professional jury or trial consultants, and

12

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

13

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

14

(f)

during their depositions, witnesses in the action to whom disclosure is

15

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

16

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

17

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

18

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

19

under this Stipulated Protective Order.

20
21
22

(g)

the author or recipient of a document containing the information or a

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

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and

23

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise ordered

24

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

25

information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

26

“HIGHLY CONFIDENTIAL – SOURCE CODE” only to:

27
28

(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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-10-

CASE NO. 3:12-CV-1721 SI

1

information for this litigation and who have signed the “Acknowledgment and Agreement to Be

2

Bound” that is attached hereto as Exhibit A;

3

(b)

Designated House Counsel of the Receiving Party (1) who has no

4

involvement in competitive decision-making, (2) to whom disclosure is reasonably necessary for

5

this litigation, (3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit

6

A), and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;

7

(c)

Experts of the Receiving Party (1) to whom disclosure is reasonably

8

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

9

Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below,

10

have been followed;

11

(d)

the court and its personnel;

12

(e)

court reporters and their staff, professional jury or trial consultants, and

13

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

14

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

15
16
17

(f)

the author or recipient of a document containing the information or a

custodian or other person who otherwise possessed or knew the information.
7.4

Procedures

for

Approving

or

Objecting

to

Disclosure

of

“HIGHLY

18

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

19

CODE” Information or Items to Designated House Counsel or Experts.

20

(a)(1) Unless otherwise ordered by the court or agreed to in writing by the

21

Designating Party, a Party that seeks to disclose to Designated House Counsel any information or

22

item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

23

“HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(b) first must make a

24

written request to the Designating Party that (1) sets forth the full name of the Designated House

25

Counsel and the city and state of his or her residence, and (2) describes the Designated House

26

Counsel’s current and reasonably foreseeable future primary job duties and responsibilities in

27

sufficient detail to determine if House Counsel is involved, or may become involved, in any

28

competitive decision-making.

[PROPOSED] STIPULATED PROTECTIVE ORDER

-11-

CASE NO. 3:12-CV-1721 SI

1

(a)(2) Unless otherwise ordered by the court or agreed to in writing by the

2

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

3

information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

4

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c)

5

first must make a written request to the Designating Party that (1) identifies the general categories

6

of

7

CONFIDENTIAL – SOURCE CODE” information that the Receiving Party seeks permission to

8

disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or her

9

primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s

10

current employer(s), (5) identifies each person or entity from whom the Expert has received

11

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

12

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

13

preceding five years, and (6) identifies (by name and number of the case, filing date, and location

14

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

15

including through a declaration, report, or testimony at a deposition or trial, during the preceding

16

five years.

17

“HIGHLY

(b)

CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“HIGHLY

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

18

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

19

Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party

20

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

21

detail the grounds on which it is based.

22

(c)

A Party that receives a timely written objection must meet and confer with

23

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

24

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

25

seeking to make the disclosure to Designated House Counsel or the Expert may file a motion as

26

provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order

27

62, if applicable) seeking permission from the court to do so. Any such motion must describe the

28

circumstances with specificity, set forth in detail the reasons why the disclosure to Designated

[PROPOSED] STIPULATED PROTECTIVE ORDER

-12-

CASE NO. 3:12-CV-1721 SI

1

House Counsel or the Expert is reasonably necessary, assess the risk of harm that the disclosure

2

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

3

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

4

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

5

discussions) and setting forth the reasons advanced by the Designating Party for its refusal to

6

approve the disclosure.

7

In any such proceeding, the Party opposing disclosure to Designated House Counsel or the

8

Expert shall bear the burden of proving that the risk of harm that the disclosure would entail

9

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

10

Material to its Designated House Counsel or Expert.

11

8.

12

SOURCE CODE
(a)

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

13

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

14

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

15

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

16

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

17

ATTORNEYS’ EYES ONLY” information, and may be disclosed only to the individuals to whom

18

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be disclosed, as

19

set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House Counsel.

20

(c)

Any source code produced in discovery shall be made available for

21

inspection, in a format allowing it to be reasonably reviewed and searched, during normal business

22

hours or at other mutually agreeable times, at an office of the Producing Party’s counsel or another

23

mutually agreed upon location. The source code shall be made available for inspection on a

24

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

25

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

26

code onto any recordable media or recordable device. The Producing Party may visually monitor

27

the activities of the Receiving Party’s representatives during any source code review, but only to

28

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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-13-

CASE NO. 3:12-CV-1721 SI

1

(d)

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

2

code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or

3

other papers, or for deposition or trial, but shall not request paper copies for the purposes of

4

reviewing the source code other than electronically as set forth in paragraph (c) in the first

5

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

6

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

7

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

8

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

9

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

10

resolution.

11

(e)

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

12

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

13

maintain all paper copies of any printed portions of the source code in a secured, locked area. The

14

Receiving Party shall not create any electronic or other images of the paper copies and shall not

15

convert any of the information contained in the paper copies into any electronic format. The

16

Receiving Party shall only make additional paper copies if such additional copies are (1) necessary

17

to prepare court filings, pleadings, or other papers (including a testifying expert’s expert report),

18

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

19

copies used during a deposition shall be retrieved by the Producing Party at the end of each day

20

and must not be given to or left with a court reporter or any other individual.

21

9.

PROSECUTION BAR

22

Absent written consent from the Producing Party, any individual who receives access to

23

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

24

SOURCE CODE” information shall not be involved in the prosecution of patents or patent

25

applications relating to the any technology disclosed by the Parties in relation to the automation of

26

scheduled “Tweets,” following or unfollowing identified Twitter account users, or sending

27

messages via Twitter. For purposes of this paragraph, “prosecution” includes directly or indirectly

28

[PROPOSED] STIPULATED PROTECTIVE ORDER

-14-

CASE NO. 3:12-CV-1721 SI

1

drafting, amending, advising, or otherwise affecting the scope or maintenance of patent claims.1

2

To avoid any doubt, “prosecution” as used in this paragraph does not include representing a party

3

challenging a patent before a domestic or foreign agency (including, but not limited to, a reissue

4

protest, ex parte reexamination or inter partes reexamination). This Prosecution Bar shall begin

5

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

6

CONFIDENTIAL – SOURCE CODE” information is first received by the affected individual and

7

shall end two (2) years after final termination of this action. This paragraph shall not apply to any

8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that is non-technical

9

in nature, such as business information or financial information.

10

10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

11

OTHER LITIGATION

12

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

13

disclosure of any information or items designated in this action as “CONFIDENTIAL” or

14

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

15

SOURCE CODE” that Party must:

16
17

(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;

18

(b)

promptly notify in writing the party who caused the subpoena or order to

19

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

20

subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective

21

Order; and

22
23

(c)

cooperate with respect to all reasonable procedures sought to be pursued by

the Designating Party whose Protected Material may be affected.

24

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

25

or court order shall not produce any information designated in this action as “CONFIDENTIAL”

26

or

“HIGHLY

CONFIDENTIAL

–

ATTORNEYS’

EYES

ONLY”

or

“HIGHLY

27
1

28

Prosecution includes, for example, original prosecution, reissue and reexamination
proceedings.

[PROPOSED] STIPULATED PROTECTIVE ORDER

-15-

CASE NO. 3:12-CV-1721 SI

1

CONFIDENTIAL – SOURCE CODE” before a determination by the court from which the

2

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

3

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

4

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

5

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

6

11.

7

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

8

(a)

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

9

Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

10

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

11

information produced by Non-Parties in connection with this litigation is protected by the

12

remedies and relief provided by this Order. Nothing in these provisions should be construed as

13

prohibiting a Non-Party from seeking additional protections.

14

(b)

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

15

a Non-Party’s confidential information in its possession, and the Party is subject to an agreement

16

with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

17

1.

promptly notify in writing the Requesting Party and the Non-Party

18

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

19

Party;

20

2.

promptly provide the Non-Party with a copy of the Stipulated

21

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

22

description of the information requested; and

23
24
25

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

26

within 14 days of receiving the notice and accompanying information, the Receiving Party may

27

produce the Non-Party’s confidential information responsive to the discovery request. If the Non-

28

Party timely seeks a protective order, the Receiving Party shall not produce any information in its

[PROPOSED] STIPULATED PROTECTIVE ORDER

-16-

CASE NO. 3:12-CV-1721 SI

1

possession or control that is subject to the confidentiality agreement with the Non-Party before a

2

determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

3

burden and expense of seeking protection in this court of its Protected Material.

4

12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5

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

6

Material to any person or in any circumstance not authorized under this Stipulated Protective

7

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

8

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

9

Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the

10

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

11

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

12

13.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

13

PROTECTED MATERIAL

14

When a Producing Party gives notice to Receiving Parties that certain inadvertently

15

produced material is subject to a claim of privilege or other protection, the obligations of the

16

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

17

provision is not intended to modify whatever procedure may be established in an e-discovery order

18

that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence

19

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

20

communication or information covered by the attorney-client privilege or work product protection,

21

the parties may incorporate their agreement in the stipulated protective order submitted to the

22

court.

23

14.

24
25
26

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

27

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

28

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

[PROPOSED] STIPULATED PROTECTIVE ORDER

-17-

CASE NO. 3:12-CV-1721 SI

1

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

2

by this Protective Order.

3

14.3

Export Control. Disclosure of Protected Material shall be subject to all applicable

4

laws and regulations relating to the export of technical data contained in such Protected Material,

5

including the release of such technical data to foreign persons or nationals in the United States or

6

elsewhere. The Producing Party shall be responsible for identifying any such controlled technical

7

data, and the Receiving Party shall take measures necessary to ensure compliance.

8

14.4

Filing Protected Material. Without written permission from the Designating Party

9

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

10

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

11

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

12

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

13

specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a

14

sealing order will issue only upon a request establishing that the Protected Material at issue is

15

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

16

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

17

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

18

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

19

the court.

20

15.

FINAL DISPOSITION

21

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

22

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

23

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

24

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

25

the Protected Material is returned or destroyed, the Receiving Party must submit a written

26

certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

27

by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected

28

Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained

[PROPOSED] STIPULATED PROTECTIVE ORDER

-18-

CASE NO. 3:12-CV-1721 SI

1

any copies, abstracts, compilations, summaries or any other format reproducing or capturing any

2

of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival

3

copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

4

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

5

consultant and expert work product, even if such materials contain Protected Material. Any such

6

archival copies that contain or constitute Protected Material remain subject to this Protective Order

7

as set forth in Section 4 (DURATION).

8

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

9
10

DATED: August 24, 2012

/s Charles T. Graves
Attorneys for Plaintiff

DATED: August 24, 2012

/s Nicole M. Norris
Attorneys for Defendants

11
12
13
14
15

CERTIFICATION

16

I, Charles T. Graves, am the ECF User whose identification and password are being used

17

to file the [Proposed] Stipulated Protective Order. In compliance with General Order 45.X.B,

18

I hereby attest that Nicole M. Norris has concurred in this filing.

19

DATED: August 24, 2012

20

WILSON SONSINI GOODRICH & ROSATI
Professional Corporation

21
By:

s/Charles T. Graves
Charles T. Graves
Attorneys for Plaintiff Twitter, Inc.

22
23
24
25

PURSUANT TO STIPULATION, IT IS SO ORDERED.

26

August 28, 2012
DATED: _____________________

27

_____________________________________
THE HONORABLE SUSAN ILLSTON
United States District Judge

28

[PROPOSED] STIPULATED PROTECTIVE ORDER

-19-

CASE NO. 3:12-CV-1721 SI

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I,

_____________________________

[print

or

type

full

name],

of

4

_________________ [print or type full address], declare under 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 on [date] in the case of Twitter, Inc. v.

7

Skootle Corp. et al., No. 3:12-cv-1721 SI. 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.

13

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

14

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

15

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

16

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

17

_______________________________________ [print or type full address and telephone number]

18

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.

20
21

Date: _________________________________

22

City and State where sworn and signed: _________________________________

23
24
25
26
27

Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]

28

[PROPOSED] STIPULATED PROTECTIVE ORDER

-20-

CASE NO. 3:12-CV-1721 SI