Be In, Inc. v. Google Inc. et al

Filing 75

Discovery Dispute Joint Report # 1 filed by Be In, Inc.. (Attachments: # 1 Exhibit A Proposed Protective Order)(Barquist, Charles) (Filed on 9/11/2013) Modified text on 9/12/2013 (dhmS, COURT STAFF).

Exhibit A

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CHARLES S. BARQUIST, State Bar No. 133785
WENDY J. RAY, State Bar No. 226269
MORRISON & FOERSTER LLP
707 Wilshire Boulevard, Suite 6000
Los Angeles, CA 90017-3543
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
KENNETH A. KUWAYTI, State Bar No. 145384
MORRISON & FOERSTER LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff Be In, Inc.
COLLEEN BAL, State Bar No. 167637
CHARLES TAIT GRAVES, State Bar No. 197923
RIANA S. PFEFFERKORN, State Bar No. 266817
WILSON SONSINI GOODRICH & ROSATI
Professional Corporation
One Market Plaza
Spear Tower, Suite 3300
San Francisco, California 94105-1126
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Defendants
Google Inc., Google UK, Ltd., and YouTube, LLC

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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BE IN, INC., a New York corporation
Plaintiff,

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v.
GOOGLE, INC., a California corporation,
YOUTUBE, LLC, a Delaware limited liability
company; and GOOGLE UK LTD., a private
limited company registered in England and
Wales,
Defendants.

[PROPOSED] STIPULATED PROTECTIVE ORDER

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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

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

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

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

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

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

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

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

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

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

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court to file material 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

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

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of Civil Procedure 26(c). In particular, Information or Items designated CONFIDENTIAL shall

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mean all material produced for or disclosed in connection with this action to a receiving party that

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constitutes confidential or commercially sensitive technical, sales, marketing, personal, or

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financial information of the producing party (including any party to this action and any non-party

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producing information or material voluntarily or pursuant to a subpoena or a court order in

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connection with this action), or information that the producing party is under a legal obligation to

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maintain as confidential, whether embodied in documentary, tangible or physical form, or the

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factual knowledge of persons, and which has been so designated by the producing party.

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2.3

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

well as their support staff).
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2.5

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.

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2.6

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.

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2.7

2.7

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

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

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witness or as a consultant in this action, (2) is not (a) a past or current employee of a Party or (b) a

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current employee of a direct competitor of a Party in the technology or line of business relevant to

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this action or (c) a past employee of such a competitor with a continuing connection to the former

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employer such as ongoing consulting, contracting, service on a board or advisory board, or project

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

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a direct competitor of a Party in the technology or line of business relevant to this action. The

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Parties agree that they will act reasonably and in good faith in making any assertion that an entity

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is or is not properly deemed a direct competitor for purposes of this order.

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concerning whether an entity is or is not a direct competitor may be resolved pursuant to the

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procedure set forth in paragraph 7.4(c) of this order.

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2.8

Any dispute

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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Items: extremely sensitive “Confidential Information or Items” that contain extremely sensitive

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information, the disclosure of which to another party would create a risk of competitive injury that

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could not be avoided by less restrictive means.

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY may include, but is not limited to:

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marketing, financial, sales, web traffic, research and development, or technical, data or

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information; (ii) commercially sensitive competitive information, including, without limitation,

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information obtained from a nonparty pursuant to a current Nondisclosure Agreement (“NDA”);

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(iii) information or data relating to future products not yet commercially released and/or strategic
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Protected Information designated HIGHLY
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plans; (iv) trade secret, or other confidential research and development information; and, (v)

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commercial agreements, settlement agreements or settlement communications, the disclosure of

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which is likely to cause harm to the competitive position of the producing party; provided that

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such information in categories (i)-(v) contains extremely sensitive information, the disclosure of

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which to another party would create a risk of competitive injury that could not be avoided by less

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restrictive means.

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2.10

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

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

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

entity not named as a Party to this action.

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2.12

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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2.13

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

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

2.14

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

Material in this action.

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2.15

Professional Vendors:

persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing deposition transcripts, exhibits or

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

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employees and subcontractors.
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Protected Material: any Disclosure or Discovery Material that is designated as

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

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2.17

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)
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all 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 the Receiving Party can show is in the public domain at the

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

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a Receiving Party as a result of publication not involving a violation of this Order, including

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becoming part of the public record through trial or otherwise; and (b) any information that the

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Receiving Party can show was known to the Receiving Party prior to the disclosure or obtained by

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the Receiving Party after the disclosure from a source who obtained the information lawfully and

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under no obligation of confidentiality to the Designating Party. Any use of Protected Material at

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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

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and 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.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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or Non-Party that designates information or items for protection under this Order shall use

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reasonable care when designating Protected Material.

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designations are prohibited. Designations that are shown to be clearly unjustified or that have been

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made for an improper purpose (e.g., to unnecessarily encumber or retard the case development

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process or to impose unnecessary expenses and burdens on other parties) expose the Designating

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Party to sanctions.

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Mass, indiscriminate, or routinized

If it comes to a Designating Party’s attention that information or items that it designated
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for protection do not qualify for protection at all or do not qualify for the level of protection

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

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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:
(a)

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

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

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

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EYES ONLY” to each page that contains protected material.

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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 qualify for protection

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under this Order. Then, before producing the specified documents, the Producing Party must affix

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the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY”) to each page that contains Protected Material.

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(b)

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

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

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

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it is 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.” Designations shall be made by notifying all parties in writing of

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the specific pages and lines of the transcript that should be treated as Protected Material.

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

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designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY.”

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

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

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

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

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inform the court reporter of these requirements.

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

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

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

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actually designated.

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(c)

Any transcript that is prepared before the

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”. If only a portion or portions of

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the information or item warrant protection, the Producing Party, to the extent practicable, shall

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

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(d)

All Protected Material not reduced to documentary, tangible or physical

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form, or which cannot be conveniently designated as set forth in Section 5.2(a)-(c) or pursuant to

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another confidentiality designation set forth in this Order, shall be designated by the Producing
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Party by informing the Receiving Party of the designation in writing.

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5.3

Inadvertent Failures to Designate.

Inadvertent or unintentional production of

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documents or things containing Protected Material that are not designated as one of the categories

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of Protected Material at the time of production shall not be deemed a waiver in whole or in part of

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a claim for confidential treatment. With respect to documents, the producing party shall

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immediately upon discovery notify the other parties of the error in writing and provide

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replacement pages bearing the appropriate confidentiality legend. In the event of any disclosure of

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Protected Material other than in a manner authorized by this Order, including any unintentional or

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inadvertent disclosure, counsel for the party responsible for the disclosure shall immediately notify

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opposing counsel of all of the pertinent facts, and make every effort to further prevent

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unauthorized disclosure including, retrieving all copies of the Protected Material from the

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recipient(s) thereof, and securing the agreement of the recipients not to further disseminate the

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Protected Material in any form. Compliance with the foregoing shall not prevent the producing

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party from seeking further relief from the Court. Compliance with this Section shall not excuse a

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violation of this Order or exempt a violating party from sanctions pursuant to 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

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

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

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

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

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good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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forms of communication are not sufficient) within 14 days of the date of service of notice. In

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

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

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

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

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

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

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manner.

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6.3

Judicial Intervention.

If the Parties cannot resolve a challenge without court

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intervention, the Designating Party shall file and serve a motion to retain confidentiality 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 21 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. Each

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

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

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challenged 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

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

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

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material in question the level of protection to which it is entitled under the Producing Party’s
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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 14 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.

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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

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

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(c)

Experts (as defined in this Order) of the Receiving Party (1) to whom

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disclosure is reasonably necessary for this litigation, (2) who have signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in

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paragraph 7.4(a)(2), below, have been followed;

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(d)

the court and its personnel;

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(e)

court reporters and Professional Vendors to whom disclosure is reasonably

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necessary for this litigation and who have either signed (i) the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A) or (ii) a non-disclosure agreement with the law firm or Party retaining

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them;
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(f)

professional jury or trial consultants to whom disclosure is reasonably

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

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Bound” (Exhibit A);

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(g)

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

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reasonably necessary and as permitted by the terms of this Order, unless otherwise agreed by the

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Designating Party or ordered by the court. Deposition testimony or exhibits to depositions that

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reveal Protected Material may not be disclosed to anyone except as permitted under this Stipulated

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Protective Order.

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(h)

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

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

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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 and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;

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(b)

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

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

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

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have been followed;

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(c)

the court and its personnel;

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(d)

court reporters and Professional Vendors to whom disclosure is reasonably

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necessary for this litigation and who have either signed (i) the “Acknowledgment and Agreement

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to Be Bound” (Exhibit A) or (ii) a non-disclosure agreement with the law firm or Party retaining

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them;

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(e)

professional jury or trial consultants to whom disclosure is reasonably

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

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Bound” (Exhibit A);

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(f)

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

custodian or other person who otherwise possessed or knew the information;

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(g) With respect to any identification of any trade secret claims by Plaintiff (in a

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pre-discovery identification statement, an interrogatory response, or a free-standing claim

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identification statement) designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY”, any individual employee of any Defendant whom Plaintiff alleges has received and/or

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misappropriated such information may have access to the trade secret claim identification, but

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only in the presence of Outside Counsel of Record for Defendants. The employee shall take no

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notes regarding, and shall receive no paper or electronic copies of, such trade secret claim

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identifications. This provision is limited to individual employees and shall not be interpreted as

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allowing disclosure to an identified group or category of employees unless each such employee

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individually qualifies for such disclosure.

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individual trade secret claims Plaintiff has alleged were received and/or misappropriated by the

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employee in question, and shall not permit such employee to view other individual trade secret

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claim identifications that are not the subject of such an allegation.

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7.4

This provision is limited to the identification of

Procedures for Approving or Objecting to Disclosure of “CONFIDENTIAL” or

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a)

Unless otherwise ordered by the court or agreed to in writing by the

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

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information or item that has been designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) first must make a written disclosure

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

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or her primary residence, (2) attaches a copy of the Expert’s current resume covering at least the

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past ten years, (3) identifies the Expert’s current employer(s), (4) identifies (by name and number

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of the case, filing date, and location of court) any litigation in connection with which the Expert

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has offered expert testimony, including through a declaration, report, or testimony at a deposition
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or trial, during the preceding five years, and (5) identifies any litigation in connection with which

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the Expert has provided non-testimonial consultation during the preceding five years to the extent

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permitted by confidentiality obligations to clients.

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(b)

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

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preceding paragraph may disclose the subject Protected Material to the identified Expert unless,

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within 10 days of delivering the disclosure, the Party receives a written objection from the

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

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

11

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

12

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

13

permission from the Court to do so. Any such motion must describe the circumstances with

14

specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably necessary,

15

assess the risk of the alleged harm identified by the Designating Party that the disclosure would

16

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

17

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

18

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

19

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

20

approve the disclosure.

21

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

22

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

23

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

24

8.

25

TRIAL; COURT FILINGS

USE OF PROTECTED INFORMATION AT HEARING, DEPOSITION, OR

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27
28
[PROPOSED] STIPULATED PROTECTIVE ORDER

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(a) Except as may be otherwise ordered by the Court, any person may be examined as a

2

witness at depositions and trial and may testify concerning all Protected Material of which such

3

person has prior knowledge. Without in any way limiting the generality of the foregoing:

4

(i) A present director, officer, and/or employee of a producing party may be examined and

5

may testify concerning (a) all Protected Material which has been produced by that party or, (b) in

6

the case of a witness who is a present director, officer, and/or employee of a Defendant, all

7

Protected Material produced by a Defendant or other Google-owned entity;

8

(ii)

A former director, officer, agent and/or employee of a producing party may be

9

interviewed, examined and may testify concerning all Protected Material of which he or she has

10

personal knowledge, including any Protected Material that refers to matters of which the witness

11

has personal knowledge, which pertains to the period or periods of his or her employment, and

12

which has been produced by that party or, in the case of a witness who is a former director, officer,

13

and/or employee of a Defendant, was produced by a Defendant or other Google-owned entity;

14

(iii) Non-parties may be examined or testify concerning any Protected Material of a

15

producing party, which appears on its face or from other documents or testimony to have been

16

received from or communicated to the non-party as a result of any contact or relationship with the

17

producing party or a representative of the producing party, or where the producing party was a

18

Defendant, any contact or relationship with a Defendant or other Google-owned entity or a

19

representative of a Defendant or other Google-owned entity. Any person other than the witness,

20

his or her attorney(s), or any person qualified to receive Protected Material under this Order shall

21

be excluded from the portion of the examination concerning such Protected Material, unless the

22

producing party consents to persons other than qualified recipients being present at the

23

examination. If the witness is represented by an attorney who is not otherwise qualified under this

24

Order to receive such Protected Material, then prior to the examination the attorney must sign an

25

acknowledgement in the form of Attachment A hereto. In the event that such attorney declines to

26

sign such a statement prior to the examination, the parties, by their attorneys, shall jointly seek a

27

protective order from the Court prohibiting the attorney from disclosing Protected Material.

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[PROPOSED] STIPULATED PROTECTIVE ORDER

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(b) Outside Counsel of Record for the parties are hereby authorized to be the persons who

2

may retrieve confidential exhibits and/or other confidential matters filed with the Court upon

3

termination of this litigation without further order of this Court, and are the persons to whom such

4

confidential exhibits or other confidential matters may be returned by the Clerk of the Court, if

5

they are not so retrieved.

6

(c) Protected Material shall not be copied or otherwise produced by a receiving party,

7

except for transmission to qualified recipients, without the written permission of the producing

8

party, or, in the alternative, by further order of the Court. Nothing herein shall, however, restrict a

9

qualified recipient from making working copies, abstracts, digests and analyses of Protected

10

Material designated CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

11

ONLY for use in connection with this litigation, and such working copies, abstracts, digests and

12

analyses shall be deemed Protected Material under the terms of this Order. Further, nothing herein

13

shall restrict a qualified recipient from converting or translating Protected Material designated

14

CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY into machine-

15

readable form for incorporation into a data retrieval system used in connection with this action,

16

provided that access to that Protected Material, in whatever form stored or reproduced, shall be

17

limited to qualified recipients.

18
19

9.

PROSECUTION BAR

20

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

21

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information shall not be involved in the prosecution of

22

patents or patent applications relating to software relating to features or functionality disclosed in the

23

HIGHLY CONFIDENTIAL-ATTORNEYS’ EYES ONLY information. For purposes of this paragraph,

24

“prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope

25

or maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph does not

26

include representing a party in connection with a challenge to a patent before a domestic or foreign agency

27

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

28

review). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’
[PROPOSED] STIPULATED PROTECTIVE ORDER

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EYES ONLY” information is first received by the affected individual and shall end two (2) years after final

2

termination of this action.

3

10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

4

OTHER LITIGATION

5

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

6

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

7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:

8
9

(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;

10

(b)

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

11

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

12

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

13

Order; and

14
15

(c)

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

the Designating Party whose Protected Material may be affected.

16

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

17

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

18

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the

19

court from which the subpoena or order issued, unless the Party has obtained the Designating

20

Party’s permission.

21

protection in that court of its confidential material – and nothing in these provisions should be

22

construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful

23

directive from another court.

24

11.

The Designating Party shall bear the burden and expense of seeking

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

25

THIS LITIGATION

26

(a)

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

27

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

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ATTORNEYS’ EYES ONLY”. Such information produced by Non-Parties in connection with
[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

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this litigation is protected by the remedies and relief provided by this Order. Nothing in these

2

provisions should be construed as prohibiting a Non-Party from seeking additional protections A

3

Non-Party’s use of this Order to protect its Protected Material does not entitle that Non-Party

4

access to the Protected Material produced by any Party or Non-Party in this case.

5
6

(b)

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

7

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

8

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

9

1.

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

10

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

11

Party;

12

2.

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

13

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

14

description of the information requested; and

15
16

3.

make the information requested available for inspection by the Non-

Party.

17

(c)

If the Non-Party fails to object or seek a protective order from this court

18

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

19

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

20

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

21

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

22

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

23

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

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12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

25

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

26

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

27

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

28

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

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

2

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

3

Agreement to Be Bound” that is attached hereto as Exhibit A. Compliance with the foregoing

4

shall not prevent the producing party from seeking further relief from the Court. Compliance with

5

this Section shall not excuse a violation of this Order or exempt a violating party from sanctions

6

pursuant to this Order.

7

13.

INADVERTENT

PRODUCTION

OF

PRIVILEGED

OR

OTHERWISE

8

PROTECTED MATERIAL

9

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

10

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

11

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

12

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

13

that provides for production without prior privilege review.. Nothing in this Order shall require

14

production of material that a party contends is protected from disclosure by the attorney-client

15

privilege, the work product immunity, common interest doctrine, or other privilege, doctrine,

16

right, or immunity (collectively “Privileged Information”).

17

nevertheless inadvertently or unintentionally produced, such production shall in no way prejudice

18

or otherwise constitute a waiver or estoppel as to any such privilege, doctrine, right or

19

immunity. Any party that inadvertently produces Privileged Information may obtain the return of

20

those materials by promptly notifying the recipient(s) and expressly articulating the basis for the

21

asserted privilege or immunity.

22

inadvertently produced Privileged Information to the producing party, or certify to the producing

23

party that they have been destroyed and/or deleted. Notwithstanding this provision, outside

24

litigation counsel of record are not required to delete inadvertently produced Privileged

25

Information that may reside on their respective firm’s electronic back-up systems that are over-

26

written in the normal course of business, provided such inadvertently produced Privileged

27

Information is not used for any other purpose following counsel’s receipt of the producing party’s

28

notice that the Privileged Information should not have been produced.

This

If Privileged Information is

The recipient(s) shall gather and return all copies of the

[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

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2
3
4

14.

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

5

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

6

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

7

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

8

by this Protective Order.

9

14.3

Filing Protected Material. Without written permission from the Designating Party

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

the court.

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14.4

Waiver of Notice Requirements. Any of the notice requirements herein may be

22

waived, in whole or in part, but only in writing signed by an attorney of record for the party

23

against whom such waiver will be effective.

24

14.5

Post-Filing Communications.

No party shall be required to identify on their

25

respective privilege log any document or communication dated on or after September 1, 2011,

26

which constitutes or reflects a communication with specific lawyers or law firms indicated in this

27

paragraph, and which absent this provision, the party would have been obligated to so identify on

28

said privilege log. As for Defendants, such law firms are Wilson Sonsini Goodrich & Rosati and
[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

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Baker & McKenzie. As for Plaintiff, such law firms are Weil Gotshal & Manges, Davis Wright &

2

Tremaine, Clifford Chance, Gibson Dunn & Crutcher, and Morrison & Foerster. In addition, no

3

party shall be required to identify on their respective privilege log any document or

4

communication dated on or after June 28, 2012, which constitutes or reflects a communication

5

with House Counsel, and which absent this provision, the party would have been obligated to so

6

identify on said privilege log. The parties shall exchange their respective privilege document logs

7

at a time to be agreed upon by the parties following the production of documents, but in no event

8

later than 30 days after service of the response to the discovery request pursuant to which the

9

privileged document or communication is responsive.

10

14.6

No Agreement Concerning Discoverability.

The identification or agreed upon

11

treatment of certain types of discovery material does not reflect agreement by the parties that the

12

disclosure of such categories of discovery material is required or appropriate in this action. The

13

parties reserve the right to argue that any particular category of discovery material should not be

14

produced for reasons other than its confidential nature, including, where applicable, because such

15

material constitutes legally protected private information of third party users of a Party’s product.

16

14.7 No Limitation on Legal Representation. Nothing in this Protective Order shall

17

preclude or impede outside litigation counsel of record’s ability to communicate with or advise

18

their client in connection with this litigation based on such counsel’s review and evaluation of

19

Protected Information, provided however, that such communications or advice shall not disclose

20

or reveal the substance or content of any Protected Information other than as permitted under this

21

Protective Order.

22

14.8

Agreement Upon Execution. Each of the parties agrees to be bound by the terms of

23

this Order as of the date counsel for such party executes this Order, even if prior to entry of this

24

order by the Court.

25
26
27
28

14.9 Section Headings. The section headings used in this Order shall be intended for
convenience only and shall not be deemed to supersede or modify any provisions.
14.10.

Interpretation, Enforcement, and Continuing Jurisdiction.

The United States

District Court for the Northern District of California is responsible for the interpretation and
[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

1

enforcement of this Order. After termination of this litigation, the provisions of this Order shall

2

continue to be binding except with respect to that discovery material that becomes a matter of

3

public record. This Court retains and shall have continuing jurisdiction over the parties and

4

recipients of the Protected Information for enforcement of the provision of this Order following

5

termination of this litigation. All disputes concerning Protected Material produced under the

6

protection of this Order shall be resolved by the United States District Court for the Northern

7

District of California.

8

14.11 Violations. If any Party violates the limitations on the use of Protected Material as

9

described in this Order, the Party violating this Order may be subject to sanctions as ordered by

10

the Court. In the event motion practice is required to enforce the terms of this Order, the

11

prevailing Party on such a motion may be awarded, in the discretion of the Court, costs, expenses,

12

and fees, including attorney or other professional fees, incurred in connection with the discovery

13

of the violation and the preparation, filing, and arguing of the motion or any other proceedings

14

resulting from the violation.

15

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

16

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

17

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

18

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

19

data.

20

identified controlled technical data under its custody or control.

21

The Receiving Party shall take measures necessary to ensure compliance as to such

14.13. Communication with Testifying Experts.

With respect to discoverability of

22

information from testifying experts, the Parties agree that FRCP 26 shall apply.

23

15.

FINAL DISPOSITION

24

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

25

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

26

at the election of the Producing Party. As used in this subdivision, “all Protected Material”

27

includes all copies, abstracts, compilations, summaries, and any other format reproducing or

28

capturing any of the Protected Material. Whether the Protected Material is returned or destroyed,
[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

1

the Receiving Party must submit a written certification to the Producing Party (and, if not the same

2

person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by category,

3

where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that

4

the Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

5

format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

6

Counsel are entitled to retain two archival copies of all pleadings, motion papers, trial, deposition,

7

and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

8

reports, attorney work product, and consultant and expert work product, even if such materials

9

contain Protected Material. In addition, if Protected Material is contained in e-mails, back-up

10

tapes, and/or other electronic formats, there shall be no obligation to return or destroy that

11

material. Protected Material in non-archival databases such as Concordance must be returned or

12

destroyed. Any permitted copies that contain or constitute Protected Material remain subject to

13

this Protective Order as set forth in Section 4 (DURATION). In the event that a Party is dismissed

14

before the entry of a final non-appealable judgment or order, this same procedure shall apply to

15

any Protected Material received from or produced to the dismissed Party.

16

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

17
18

Dated: September ____, 2013

MORRISON & FOERSTER LLP
By: /s/

19

Charles S. Barquist

20

Attorneys for Plaintiff
Be In, Inc.

21
22
23

Dated: September

, 2013

24

WILSON SONSINI GOODRICH & ROSATI
By: /s/
Colleen Bal

25

Attorneys for Defendants
Google Inc., Google UK, Ltd., and YouTube, LLC

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27
28
[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

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2
3
4

PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED: _____________________
_____________________________________
THE HONORABLE LUCY H. KOH
United States District Judge

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6
7
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[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

1
2

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

My name is _________________________________________________________.

4

I reside at __________________________________________________________.

5

My present employer is _______________________________________________.

6

My present occupation or job description is _______________________________.

7
8

I declare under penalty of perjury that I have read in its entirety and understand the

9

Stipulated Protective Order that was issued by the United States District Court for the Northern

10

District of California on [date] in the case of Be In, Inc. v. Google Inc. et al., Case No. 5:12-CV-

11

03373-LHK. I agree to comply with and to be bound by all the terms of this Stipulated Protective

12

Order and I understand and acknowledge that failure to so comply could expose me to sanctions

13

and punishment in the nature of contempt. I solemnly promise that I will not disclose in any

14

manner any information or item that is subject to this Stipulated Protective Order to any person or

15

entity except in strict compliance with the provisions of this Order.

16

I understand that I am to retain all copies of any documents designated as

17

CONFIDENTIAL or HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, or any similar

18

designation, in a secure manner and in accordance with the terms of said Order.

19

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

20

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

21

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

22

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

23

_______________________________________ [print or type full address and telephone number]

24

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

25

related to enforcement of this Stipulated Protective Order.

26
27

Date: _________________________________

28

City and State where sworn and signed: _________________________________
[PROPOSED] STIPULATED PROTECTIVE ORDER

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CASE NO. 5:12-CV-03373-LHK

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2

Printed name: ______________________________
[printed name]

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4

Signature: __________________________________
[signature]

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[PROPOSED] STIPULATED PROTECTIVE ORDER

-25-

CASE NO. 5:12-CV-03373-LHK