Symantec Corporation v. Acronis, Inc. et al

Filing 98

STIPULATION AND ORDER re 90 STIPULATION WITH PROPOSED ORDER re Protective Order filed by Symantec Corporation. Signed by Judge Jon S. Tigar on April 30, 2013. (wsn, COURT STAFF) (Filed on 4/30/2013)

Jennifer A. Kash (Bar No. 203679)
1 [e-mail]
Eric E. Wall (Bar No. 248692)
2 [e-mail]
QUINN EMANUEL URQUHART & SULLIVAN, LLP
3 50 California Street, 22nd Floor
San Francisco, California 94111
4 Telephone: [phone]
Facsimile: [phone]
5
Attorneys for Plaintiff-Counterclaim Defendant Symantec Corporation
6
7
8
9
10
11

Jason W. Wolff (SBN 215819/[e-mail])
Olga I. May (SBN 232012/[e-mail])
Aleksandr Gelberg (SBN 279989/[e-mail])
FISH & RICHARDSON P.C.
12390 El Camino Real
San Diego, California 92130
Telephone: [phone]
Facsimile: [phone]

12

Attorneys for Defendants-Counterclaimants Acronis, Inc., Acronis International GmbH, and OOO
13 Acronis
14

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

15
16

17 SYMANTEC CORPORATION,
Plaintiff-Counterclaim Defendant,

18
19

Case No. 3:12-cv-05331 JST

vs.

20 ACRONIS, INC., ACRONIS INTERNATIONAL
GMBH, AND OOO ACRONIS
21
Defendants-Counterclaimants.
22
AND RELATED COUNTERCLAIMS.
23

STIPULATED PROTECTIVE ORDER
FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION
AND/OR TRADE SECRETS;
[PROPOSED] ORDER

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Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 1.

PURPOSES AND LIMITATIONS:

2

Disclosure and discovery activity in:

3

a. this action (“Acronis II”)

4

b. Symantec Corporation v. Acronis, Inc. and Acronis International GmbH, Case
No. 11-cv-5310 (EMC) (“Acronis I”),1 and

5
6

c. Acronis, Inc. and Acronis International GmbH v. Symantec Corporation, Case

7

No. 12-cv-372(SLR), pending in the District of Delaware (“the Delaware

8

Action”)

9 are likely to involve production of confidential, proprietary, or private information for which
10 special protection from public disclosure and from use for any purpose other than prosecuting this
11 litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to
12 enter the following Stipulated Protective Order. The parties acknowledge that this Order does not
13 confer blanket protections on all disclosures or responses to discovery and that the protection it
14 affords from public disclosure and use extends only to the limited information or items that are
15 entitled to confidential treatment under the applicable legal principles. The parties further
16 acknowledge, as set forth in Section 14.4, below, that this Stipulated Protective Order does not
17 entitle them to file confidential information under seal; Civil Local Rule 79-5 and General Order
18 62 set forth the procedures that must be followed and the standards that will be applied when a
19 party seeks permission from the court to file material under seal.
20 2.

DEFINITIONS

21

2.1

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

22 information or items under this Order.
23

2.2

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

24 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
25 of Civil Procedure 26(c).
26
27

1

Collectively, Acronis I and Acronis II are hereinafter referred to as the "Northern District of
California Actions."
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STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1

2.3

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

2 well as their support staff).
3

2.4

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

4 produces in disclosures or in responses to discovery as “CONFIDENTIAL”, “HIGHLY
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or “HIGHLY CONFIDENTIAL – SOURCE
6 CODE”.
7

2.5

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

8 medium or manner in which it is generated, stored, or maintained (including, among other things,
9 testimony, transcripts, and tangible things), that are produced or generated in disclosures or
10 responses to discovery in this matter.
11

2.6

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

12 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as
13 a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s
14 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or
15 of a Party’s competitor.
16

2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

17 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
18 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
19 less restrictive means.
20

2.8

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

21 sensitive “Confidential Information or Items” representing computer code and associated
22 comments and revision histories, formulas, engineering specifications, or schematics that define or
23 otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure
24 of which to another Party or Non-Party would create a substantial risk of serious harm that could
25 not be avoided by less restrictive means.
26

2.9

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

27 Counsel does not include Outside Counsel of Record or any other outside counsel.
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CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1

2.10

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

2 entity not named as a Party to this action.
3

2.11

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

4 action but are retained to represent or advise a party to this action and have appeared in this action
5 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
6

2.12

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

7 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
8

2.13

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

9 Material in this action.
10

2.14

Professional Vendors: persons or entities that provide litigation support services

11 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
12 organizing, storing, or retrieving data in any form or medium) and their employees and
13 subcontractors.
14

2.15

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

15 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or as
16 “HIGHLY CONFIDENTIAL – SOURCE CODE.”
17

2.16

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

18 Producing Party.
19 3.

SCOPE

20

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

21 (as defined above), but also (1) any information copied or extracted from Protected Material; (2)
22 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
23 conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
24 However, the protections conferred by this Stipulation and Order do not cover the following
25 information: (a) any information that is in the public domain at the time of disclosure to a
26 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
27 result of publication not involving a violation of this Order, including becoming part of the public
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CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 record through trial or otherwise; and (b) any information known to the Receiving Party prior to
2 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained
3 the information lawfully and under no obligation of confidentiality to the Designating Party. Any
4 use of Protected Material at trial shall be governed by a separate agreement or order.
5 4.

DURATION

6

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

7 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
8 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
9 and defenses in this action, with or without prejudice; and (2) final judgment herein after the
10 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
11 including the time limits for filing any motions or applications for extension of time pursuant to
12 applicable law.
13 5.

DESIGNATING PROTECTED MATERIAL

14

5.1

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

15 or Non-Party that designates information or items for protection under this Order must take care to
16 limit any such designation to specific material that qualifies under the appropriate standards. To
17 the extent it is practical to do so, the Designating Party must designate for protection only those
18 parts of material, documents, items, or oral or written communications that qualify – so that other
19 portions of the material, documents, items, or communications for which protection is not
20 warranted are not swept unjustifiably within the ambit of this Order.
21

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

22 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
23 unnecessarily encumber or retard the case development process or to impose unnecessary
24 expenses and burdens on other parties) expose the Designating Party to sanctions.
25

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

26 for protection do not qualify for protection at all or do not qualify for the level of protection
27
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1 initially asserted, that Designating Party must promptly notify all other parties that it is
2 withdrawing the mistaken designation.
3

5.2

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

4 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
5 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
6 designated before the material is disclosed or produced.
7
8

Designation in conformity with this Order requires:
(a)

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

9 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
10 Party affix the legend “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11 ONLY”, or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains protected
12 material. If only a portion or portions of the material on a page qualifies for protection, the
13 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
14 markings in the margins) and must specify, for each portion, the level of protection being asserted.
15

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

16 need not designate them for protection until after the inspecting Party has indicated which material
17 it would like copied and produced. During the inspection and before the designation, all of the
18 material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
19 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
20 copied and produced, the Producing Party must determine which documents, or portions thereof,
21 qualify for protection under this Order. Then, before producing the specified documents, the
22 Producing Party must affix the appropriate legend (“CONFIDENTIAL”, “HIGHLY
23 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or “HIGHLY CONFIDENTIAL – SOURCE
24 CODE”) to each page that contains Protected Material. If only a portion or portions of the
25 material on a page qualifies for protection, the Producing Party also must clearly identify the
26 protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
27 each portion, the level of protection being asserted.
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1

(b)

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

2 Designating Party identify on the record, before the close of the deposition, hearing, or other
3 proceeding, all protected testimony and specify the level of protection being asserted. When it is
4 impractical to identify separately each portion of testimony that is entitled to protection and it
5 appears that substantial portions of the testimony may qualify for protection, the Designating Party
6 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
7 to have up to 21 days to identify the specific portions of the testimony as to which protection is
8 sought and to specify the level of protection being asserted. Only those portions of the testimony
9 that are appropriately designated for protection within the 21 days shall be covered by the
10 provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at
11 the deposition or up to 21 days afterwards if that period is properly invoked, that the entire
12 transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
13 ATTORNEYS’ EYES ONLY.”
14

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

15 other proceeding to include Protected Material so that the other parties can ensure that only
16 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
17 (Exhibit A) are present at those proceedings. The use of a document as an Exhibit at a deposition
18 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
19 – ATTORNEYS’ EYES ONLY.”
20

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

21 that the transcript contains Protected Material, and the title page shall be followed by a list of all
22 pages (including line numbers as appropriate) that have been designated as Protected Material and
23 the level of protection being asserted by the Designating Party. The Designating Party shall inform
24 the court reporter of these requirements. Any transcript that is prepared before the expiration of a
25 21-day period for designation shall be treated during that period as if it had been designated
26 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise
27
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1 agreed. After the expiration of that period, the transcript shall be treated only as actually
2 designated.
3

(b)

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

4 any other tangible items, that the Producing Party affix in a prominent place on the exterior of the
5 container or containers in which the information or item is stored the legend “CONFIDENTIAL”,
6 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or “HIGHLY CONFIDENTIAL –
7 SOURCE CODE”. If only a portion or portions of the information or item warrant protection, the
8 Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the
9 level of protection being asserted.
10

5.3

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

11 designate qualified information or items does not, standing alone, waive the Designating Party’s
12 right to secure protection under this Order for such material. Upon timely correction of a
13 designation, the Receiving Party must make reasonable efforts to assure that the material is treated
14 in accordance with the provisions of this Order.
15 6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

16

6.1

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

17 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
18 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
19 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
20 challenge a confidentiality designation by electing not to mount a challenge promptly after the
21 original designation is disclosed.
22

6.2

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

23 process by providing written notice of each designation it is challenging and describing the basis
24 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
25 notice must recite that the challenge to confidentiality is being made in accordance with this
26 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
27 good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 forms of communication are not sufficient) within 14 days of the date of service of notice. In
2 conferring, the Challenging Party must explain the basis for its belief that the confidentiality
3 designation was not proper and must give the Designating Party an opportunity to review the
4 designated material, to reconsider the circumstances, and, if no change in designation is offered, to
5 explain the basis for the chosen designation. A Challenging Party may proceed to the next stage
6 of the challenge process only if it has engaged in this meet and confer process first or establishes
7 that the Designating Party is unwilling to participate in the meet and confer process in a timely
8 manner.
9

6.3

If the Parties cannot resolve a challenge without court intervention, the Challenging

10 Party shall file and serve a motion to challenge confidentiality under Civil Local Rule 7 (and in
11 compliance with Civil Local Rule 79-5 and General Order 62, if applicable) within 21 days of the
12 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
13 process will not resolve their dispute, whichever is earlier. The Challenging Party may file a
14 motion challenging a confidentiality designation at any time if there is good cause for doing so,
15 including a challenge to the designation of a deposition transcript or any portions thereof. Any
16 motion brought pursuant to this provision must be accompanied by a competent declaration
17 affirming that the movant has complied with the meet and confer requirements imposed by the
18 preceding paragraph.
19

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

20 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
21 unnecessary expenses and burdens on other parties) may expose the Challenging Party to
22 sanctions. All parties shall continue to afford the material in question the level of protection to
23 which it is entitled under the Producing Party’s designation until the court rules on the challenge.
24 7.

ACCESS TO AND USE OF PROTECTED MATERIAL

25

7.1

Basic Principles:

26

(a)

A Receiving Party may use Protected Material that is disclosed or produced by

27 another Party or by a Non-Party in connection with Acronis I, Acronis II, or the Delaware Action
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STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 only in any of these three cases, subject to other provisions of this Protective Order and Protective
2 Orders in Acronis II and the Delaware Action, and only for prosecuting, defending, or attempting
3 to settle any of these three litigations.2 Such Protected Material may be disclosed only to the
4 categories of persons and under the conditions described in this Order subject, in particular, to the
5 disclosure limitations set forth in Section 7.1(b).
6

(b)

Protected Material produced in connection with Acronis I or Acronis II may be

7 disclosed to any experts that have been disclosed to and approved by the Producing Party in either
8 Acronis I or Acronis II according to Section 7.3(b) below (in other words, experts approved for
9 access to such Protected Material in Acronis I are approved for such access in Acronis II and vice
10 versa). However, the Receiving Party may not disclose Protected Material produced or disclosed
11 in either the Acronis I or Acronis II to an expert disclosed in the Delaware Action (“Delaware
12 Expert”) unless the Delaware Expert has also been disclosed to and approved by the Producing
13 Party in Acronis I or Acronis II according to Section 7.3(b) below.3 When Acronis I, Acronis II,
14 and the Delaware action have been terminated, the Receiving Party must comply with the
15 provisions of section 15 below (FINAL DISPOSITION) of the respective Protective Orders
16 entered in each case.
17

Protected Material must be stored and maintained by a Receiving Party at a location and in

18 a secure manner4 that ensures that access is limited to the persons authorized under this Order.
19
20
21

2

The parties acknowledge that nothing in Section 7.1 constitutes an agreement or
22 representation that information disclosed in connection with one litigation is relevant to a claim or
defense in another.
3
23
Similarly, the parties agree that the Receiving Party will not disclose Protected Material
produced or disclosed in the Delaware Action to any expert who has not been disclosed and
24
approved by the Producing Party according to the expert disclosure provisions of protective order
25 that will be entered in the Delaware Action. Further, to the extent the District of Delaware has
more lenient requirements for a protective order, the parties agree to implement the same
26 disclosure requirements and obligations in their Delaware Action Protective Order as set forth
herein.
27
4
It may be appropriate under certain circumstances to require the Receiving Party to store
any electronic Protected Material in password-protected form.
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1

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

2 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
3 information or item designated “CONFIDENTIAL” only to:
4

(a)

the Receiving Party’s Outside Counsel of Record in the actions set forth in

5 paragraph 1, as well as employees of said Outside Counsel of Record to whom it is reasonably
6 necessary to disclose the information for this litigation;
7

(b)

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

8 Receiving Party to whom disclosure is reasonably necessary for the actions set forth in paragraph
9 1 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
10

(c)

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

11 disclosure is reasonably necessary for Acronis I and Acronis II and who have signed the
12 “Acknowledgment and Agreement to Be Bound” (Exhibit A) and their employees or staff to
13 whom disclosure is reasonably necessary for this litigation and who have signed Exhibit A;
14

(d)

the courts in the actions set forth in paragraph 1 and its personnel;

15

(e)

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

16 Professional Vendors to whom disclosure is reasonably necessary for the actions set forth in
17 paragraph 1 and who have signed Exhibit A;
18

(f)

during their depositions, witnesses in the actions set forth in paragraph 1 to

19 whom disclosure is reasonably necessary and who have signed the “Acknowledgment and
20 Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
21 ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that
22 reveal Protected Material must be separately bound by the court reporter and may not be disclosed
23 to anyone except as permitted under this Stipulated Protective Order.
24

(g)

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

25 custodian or other person who otherwise possessed or knew the information.
26

(h)

Any other person with the prior written consent of the Producing Party.

27
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1

7.3

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

2 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise
3 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
4 disclose any information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
5 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
6

(a)

the Receiving Party’s Outside Counsel of Record in the actions set forth in

7 paragraph 1, as well as employees of said Outside Counsel of Record to whom it is reasonably
8 necessary to disclose the information for this litigation;
9

(b)

Experts of the Receiving Party and their employees or staff (1) to whom

10 disclosure is reasonably necessary for Acronis I or Acronis II, (2) who have signed the
11 “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures
12 set forth in paragraph 7.4(a), below, have been followed;
13

(c)

the courts in the actions set forth in paragraph 1 and its personnel;

14

(d)

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

15 Professional Vendors to whom disclosure is reasonably necessary for the actions set forth in
16 paragraph 1 and who have signed Exhibit A;
17

(e)

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

18 custodian or other person who otherwise possessed or knew the information;
19

(f)

Any other person with the prior written consent of the Producing Party; and

20

(g)

shall not be made available to any person who was or is an employee, agent,

21 officer, director, or consultant of or to the Receiving Party, including Symantec Corporation,
22 Acronis, Inc., or Acronis International GmbH or any predecessors or successors (merged, acquired
23 or otherwise) parents, divisions, subsidiaries, associated organizations, joint ventures, and
24 affiliates thereof.
7.4
Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL –
25
26 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information
27 or Items to Experts.
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STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1

(a)

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 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
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
10 primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s
11 current employer(s), (5) identifies each person or entity for the past 5 years including the
12 identification of the case name and number, law firm, represented party/client, and the date range
13
14

of the involvement: (i) for whom the Expert has provided professional services, or (ii) from whom
the Expert received compensation or funding; except that if a particular instance of such services

15
16

or funding was subject to an non-disclosure agreement or confidentiality obligation and the Expert

17 understands he was not disclosed to the opposing side in that matter, the Receiving Party under
18 this subsection (5) will need to disclose whether such services or funding were outside the field of
19 backup and recovery technology and concerned Symantec Corporation, Acronis, Inc., or Acronis
20 International GmbH or any predecessors or successors (merged, acquired or otherwise) parents,
21
22

divisions, subsidiaries, associated organizations, joint ventures, and affiliates thereof, (6) identifies
all of the Expert’s patents and pending patent applications in which the Expert is an inventor,

23
24

assignee, or holds a financial interest, (7) identifies all source code relevant to this litigation in

25 which the Expert holds a financial interest, and (8) identifies any professional services provided by
26 the expert or any of his staff to Symantec, Acronis, Inc., or Acronis International GmbH or any
27
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1

predecessors or successors (merged, acquired or otherwise), parents, divisions, subsidiaries,

2 associated organizations, joint ventures, and affiliates thereof.
3

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

4 preceding respective paragraphs may disclose the subject Protected Material to the identified
5 Expert unless, within 14 days of delivering the request, the Party receives a written objection from
6
the Designating Party. Any such objection must set forth in detail the grounds on which it is
7
based.
8
(c) A Party that receives a timely written objection must meet and confer with the
9
10 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
11 agreement within seven days of the written objection. If no agreement is reached, the Party
12 seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7
13
14

(and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) seeking
permission from the court to do so. Any such motion must describe the circumstances with

15
16

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

17 assess the risk of harm that the disclosure would entail, and suggest any additional means that
18 could be used to reduce that risk. In addition, any such motion must be accompanied by a
19 competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e., the
20 extent and the content of the meet and confer discussions) and setting forth the reasons advanced
21

by the Designating Party for its refusal to approve the disclosure.

22
23

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

24 of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
25 outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
26
27
28
-14Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 8.

PROSECUTION BAR

2

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

3 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or any “HIGHLY
4 CONFIDENTIAL – SOURCE CODE” information shall not be involved in the prosecution of
5 patents or patent applications relating to backup and recovery software or security software,
6 including, without limitation, the patents asserted in the actions set forth in paragraph 1 and any
7 patent or application claiming priority to or otherwise related to the patents asserted in the actions
8 set forth in paragraph 1, before any foreign or domestic agency, including the United States Patent
9 and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution”
10 includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or
11 maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph does
12 not include representing a party challenging a patent before a domestic or foreign agency
13 (including, but not limited to, a reissue protest, ex parte reexamination or inter partes
14 reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL –
15 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information
16 is first received by the affected individual in each respective action (Acronis I, Acronis II, or the
17 Delaware Action) and shall end two (2) years after final termination of the last of the actions set
18 forth in paragraph 1, except:
19

(a)

If an expert disclosed and approved in the Northern District of California

20 Actions and the Delaware Action (i) stops providing services for each of the Northern District of
21 California Actions in which he is engaged but not the Delaware action, (ii) no longer has any
22 access to Protected Material designated in the Northern District of California Actions, and (iii)
23 notifies the Producing Party in writing of the withdrawal and the case(s) from which the expert is
24 withdrawing, the Prosecution Bar as it applies to backup and recovery software patents or patent
25 applications shall end two years from the date of withdrawal and the Prosecution Bar as it applies
26 to security software patents or patent applications shall remain in effect until terminated according
27 to the other terms of this paragraph 8;
28
-15Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1

(b)

If an expert disclosed and approved in the Northern District of California

2 Actions and the Delaware Action (i) stops providing services for only the Delaware Action, (ii) no
3 longer has any access to Protected Material designated in the Delaware Action, and (iii) notifies
4 the Producing Party in writing of the withdrawal and the case(s) from which the expert is
5 withdrawing, the Prosecution Bar as it applies to security software patents or patent applications
6 shall end two years from the date of withdrawal and the Prosecution Bar as it applies to backup
7 and recovery software patents or patent applications shall remain in effect until terminated
8 according to the other terms of this paragraph 8;
9

(c)

If an expert disclosed and approved only either in the Northern District of

10 California Actions or the Delaware Action (i) stops providing services for each of such actions, (ii)
11 no longer has any access to Protected Material designated in such actions, and (iii) notifies the
12 Producing Party in writing of the withdrawal and the case(s) from which the expert is
13 withdrawing, the Prosecution Bar shall end two years from the date of withdrawal and shall apply
14 only to backup and recovery software patents or patent applications if the expert was disclosed and
15 approved in and withdrew from the Northern District of California Actions, and only to security
16 software patents or patent applications if the expert was disclosed and approved in and withdrew
17 from the Delaware Action; and
18

(d)

In all situations other than those set forth in paragraphs 8(0) - 8(c), in the

19 event that a person who receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
20 ONLY” or any “HIGHLY CONFIDENTIAL – SOURCE CODE” information (i) withdraws from
21 working on all the actions this person worked on of the actions set forth in paragraph 1, (ii) no
22 longer has any access to Protected Material designated in such actions, and (iii) notifies the
23 Producing Party in writing of the date of withdrawal and the case(s) from which the individual is
24 withdrawing, the Prosecution Bar end two (2) years after the date of withdrawal and apply to
25 patents or patent applications relating to backup and recovery software and security software.
26
27
28
-16Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 9.

SOURCE CODE

2

(a)

A Producing Party may designate source code as “HIGHLY

3 CONFIDENTIAL - SOURCE CODE” if it comprises or includes confidential, proprietary or trade
4 secret source code.
5

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

6 CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –
7 ATTORNEYS’ EYES ONLY” information, including the Prosecution Bar set forth in Paragraph
8 8, and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL –
9 ATTORNEYS’ EYES ONLY” information may be disclosed.
10

(c)

The Receiving Party shall provide five (5) business days’ notice prior to

11 commencing an inspection. The Receiving Party shall restrict its inspection to a reasonable
12 number of days, from 9:00 a.m. to 5:00 p.m., or as otherwise agreed by the parties.
13

(d)

A list of names of persons who will view the source code will be provided

14 to the Producing Party in conjunction with any written (including email) notice requesting
15 inspection.
16

(e)

Any source code produced in discovery shall be made available for

17 inspection in a format through which it could be reasonably reviewed and searched at an office of
18 the Producing Party’s counsel or another mutually agreed upon location. The parties agree to meet
19 and confer in good faith on a location reasonably convenient for both sides, including taking into
20 consideration the location and convenience of each other’s experts. The source code shall be
21 made available for inspection on a secured computer in a secured room without Internet access or
22 network access to other computers (“Source Code Computer”), as necessary and appropriate to
23 prevent and protect against any unauthorized copying, transmission, removal or other transfer of
24 any source code outside or away from the computer on which the source code is provided for
25 inspection. The parties agree to meet and confer if more than one Source Code Computer is
26 necessary to maximize the efficiency of the inspection. The Receiving Party shall not copy,
27 remove, or otherwise transfer any portion of the source code onto any recordable media or
28
-17Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 recordable device. The Producing Party shall be entitled to have a person observe all entrances
2 and exits from the source code viewing room. The Producing Party may also visually monitor the
3 activities of the Receiving Party’s representatives during any source code review, but only to
4 ensure that there is no unauthorized recording, copying, or transmission of the source code.
5

(f)

The Producing Party shall install such tools or programs that are reasonably

6 necessary to review and search the code produced on the platform produced. The Receiving Party
7 may request that additional review tools and programs be added to the Source Code computer, and
8 the Providing Party may not unreasonably refuse to install such additional tools and programs. If
9 the Receiving Party wants to use other tools or programs, the Receiving Party must provide the
10 software and proof that it is licensed. The Receiving Party’s outside counsel and/or expert shall be
11 entitled to take notes relating to the source code but may not copy substantial portions of the
12 source code into the notes. For purposes of this provision, fifteen or more lines of code is
13 “substantial.” No copies of all or any portion of the source code may leave the room in which the
14 source code is inspected except as otherwise provided herein. Further, no other written or
15 electronic record of the source code is permitted except as otherwise provided herein.
16

The Producing Party shall allow the Receiving Party to create files on the Source Code

17 Computer as necessary for the Receiving Party’s analysis, for example in a separate directory on
18 the Source Code Computer to be established by the Producing Party. The Producing Party agrees
19 that it will not review, analyze, share, distribute, or use the files created by the Receiving Party
20 except as stated herein. Acronis has asserted that such files created by Acronis's representatives
21 will contain work product or other protected information. Acronis does not waive such protection
22 by leaving the files on Symantec’s computer or by agreeing to have them reviewed by a third party
23 as stated herein. Without agreeing with that assertion, Symantec acknowledges that such a claim
24 has been made and agrees not to review, analyze, share, distribute, or use the files created by the
25 Receiving Party unless permitted to do so by the Court, and further agrees that Acronis has not
26 waived any protection afforded these files, including due to a neutral third party review or the files
27 location on Symantec’s computer. The Producing Party has the right to have a neutral third party
28
-18Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 (“Neutral Party”) review the electronic note files made by the Receiving Party on the Source Code
2 Computer to ensure that the note files created by the Receiving Party are consistent with all other
3 provisions and are subject to and receive the applicable protections conferred by the Protective
4 Order. If the Producing Party elects to have a Neutral Party review the electronic note files made
5 by the Receiving Party, the Receiving Party is not permitted to take those electronic note files with
6 them at the conclusion of the inspection. The parties will immediately meet and confer about the
7 scope and content of the review that is to be conducted by the Neutral Party and on the timing and
8 procedure for making these files available to the Receiving Party.5 Both parties reserve the right
9 to raise additional issues regarding the timing and procedure for making these files available to the
10 Receiving Party after the third-party review is complete. All expenses associated with the Neutral
11 Party review shall be paid for by the party requesting the review. The parties may request relief
12 from the Court pursuant to the procedures of the judge in charge of discovery issues in each
13 respective case (Acronis I, Acronis II, or the Delaware Action) if they are unable to agree on the
14 timing and procedure for making these files available to the Receiving Party and the parameters of
15 the Neutral Party review.
16

(g)

Subject to the other provisions of this Protective Order, the Receiving Party

17 may bring with it to the secure offices a cell phone and laptop computer. The Receiving Party is
18 permitted to take notes on the laptop computer but shall not be permitted to include any of the
19 Producing Party’s Source Code or Source Code comments in any such notes. The Receiving Party
20 may include references to the file, function, or object name and line number(s) of code, and such
21

5

At a minimum, Symantec has requested that the Neutral Party identify (1) How many pages
22 of notes are contained within electronic notes and files created by the Receiving Party, (2)
Excluding attorney notations, how many lines of source code in total are contained in electronic
23 notes and files created by the Receiving Party, and (3) How many segments of source code within
24 the electronic notes and files created by the Receiving Party contain 2 or more lines of code.
Acronis has already advised that it will agree that the neutral third party may convey to the
25 Producing Party whether or not these note files contain any portion of the produced code that is 14
lines or greater in length, as already required by paragraph 9(f). Acronis is prepared to meet and
26 confer re further details as long as no work product information is conveyed without making the
showing required by Rule 26(b)(3). Acronis also requested that a “line” of code be defined as a
27 line of actual code, and any lines that contain only code comments or whitespace, but not code, be
28 excluded from the count.
-19Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 references will not be considered Source Code or Source Code comments. Inclusion of any
2 Source Code or Source Code comments in any such notes constitutes a violation of the protective
3 order. If the Receiving Party represents that the notes on the laptop comply with this provision,
4 such notes are agreed to contain work-product and not be subject to any third-party review.
5

(h)

The Producing Party shall produce to the Receiving Party printed copies of

6 requested files contained on the Producing Party's Source Code Computer under the following
7 terms and conditions:
8

(1)

For each of the actions set forth in paragraph 1, the Receiving Party

9

may request, in total, up to 1000 pages of hard (non electronic) copies of those portions of

10

source code that it, in good faith, considers necessary to the preparation of each case. For

11

good cause shown and for each of the actions set forth in paragraph 1, the Receiving Party

12

may request an additional 500 pages of hard (non electronic) copies of those portions of

13

source code that it, in good faith, considers necessary to the preparation of each case.

14

Notwithstanding the foregoing, a receiving Party may not request a hard copy of more than

15

20 consecutive pages of source code absent express permission of the producing Party or

16

an order from the Court. A “page” for the purposes of this limitation will be defined as an

17

8.5 x 11” sheet of paper with 12 point font. This consecutive page limitation will not

18

preclude any Party from seeking additional consecutive pages for good reason. If any

19

dispute arises concerning the number of consecutive pages, the producing Party and

20

receiving Party shall meet and confer in good faith to attempt to resolve this dispute

21

without the Court's involvement. The Producing Party shall provide all such source code

22

in paper form including bates numbers and the label “HIGHLY CONFIDENTIAL -

23

SOURCE CODE.”

24

(2)

A request for printed copies of files shall include, on a file-by-file

25

basis, the complete file path associated with each file. If additional information is required

26

to uniquely identify the requested files, then the request shall include, on a file-by-file

27

basis, such additional information;

28
-20Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1

(3)

A party may request multiple versions or revisions of the same file,

2

but the requesting party must specify the exact dates or the exact numbers for each version

3

or versions sought. The Producing Party and the Receiving Party shall cooperate in

4

identifying the precise files which are sought;

5

(4)

The Producing Party shall have three (3) business days in which to

6

object in writing as to the extent or relevance of the requested printout(s). If no such

7

objection is made, the Producing Party shall produce a copy of the printout(s) to the

8

Reviewing Party pursuant to the terms of Paragraph 7.3. If objection is made, the parties

9

shall meet and confer within three (3) business days in a good faith attempt to resolve the

10

objection. If the objection is not resolved, the Producing Party shall have five (5) business

11

days after the expiration of the meet and confer period (i.e., eight (8) business days from

12

the date of the request) in which to file a motion for relief from production of the

13

printout(s) that are the subject of the objection. The printout(s) shall be retained by the

14

Producing Party, and not produced, pending the Court's resolution of the motion.

15

(5)

Any copy of a Source Code file (in electronic or paper form) shall

16

be marked and designated as “HIGHLY CONFIDENTIAL-SOURCE CODE,” and the

17

Receiving Party must keep the printed copy of Source Code in a locked location to prevent

18

duplication of or unauthorized access to the source code. Any source code designated

19

“HIGHLY CONFIDENTIAL-SOURCE CODE,” shall be disclosed and disseminated only

20

to the individuals identified in Paragraph 7.3. The Producing Party shall clearly identify

21

the file path of the underlying file as well as an additional information required to uniquely

22

identify the underlying file on any printed copy of a Source Code file.

23

(i)

Unless otherwise agreed in advance by the parties in writing, following

24 each inspection, the Receiving Party’s outside counsel and/or experts shall remove all notes,
25 documents, laptops, and all other materials from the room that may contain work product and/or
26 attorney-client privileged information. The Producing Party shall not be responsible for any items
27 left in the room following each inspection session.
28
-21Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1

(j)

The Producing Party shall provide to the Receiving Party five copies of

2 hard (non-electronic) copies of source code. No additional copies of hard (non-electronic) copies
3 of source code or portions of source code shall be made without the agreement of the producing
4 Party, regardless of whether such source code was initially produced in hard-copy format or
5 whether such hard copies were made pursuant to the preceding sub-Paragraph. A party may
6 request additional hard copies of portions of the code only as needed for use at depositions,
7 hearings, trial, or court filings. The Receiving Party shall only include such excerpts as are
8 reasonably necessary for the purposes for which such part of the source code is used. To the
9 extent portions of source code are quoted in a Source Code Document, either (1) the entire
10 document will be stamped and treated as HIGHLY CONFIDENTIAL-SOURCE CODE or (2)
11 those pages containing quoted source code will be separately bound, and stamped and treated as
12 HIGHLY CONFIDENTIAL-SOURCE CODE.
13

(k)

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

14 inspected any portion of the source code in electronic or paper form. The log shall include the
15 dates and times of any access, all printed or electronic copies of the source code that are delivered
16 by the Receiving Party to any qualified person and the names of the recipients of copies and
17 locations where the copies are stored. The log shall be provided by the Receiving Party to the
18 Producing Party upon request.
19

(l)

The Receiving Party shall maintain all paper copies of any printed portions

20 of the source code and all electronic files that contain source code in a manner that prevents
21 duplication of or unauthorized access to the source code, for example, in a secured, locked area.
22 The Receiving Party shall not create any electronic or other images of the paper copies and shall
23 not convert any of the information contained in the paper copies into any electronic format. All
24 paper copies shall be securely destroyed if they are no longer in use (e.g., unmarked and/or spare
25 copies at the conclusion of a deposition).
26
27
28
-22Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

2

LITIGATION

3

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

4 disclosure of any information or items designated in this action as “CONFIDENTIAL”, “HIGHLY
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or “HIGHLY CONFIDENTIAL – SOURCE
6 CODE” that Party must:
7

(a)

promptly notify in writing the Designating Party. Such notification shall

8 include a copy of the subpoena or court order;
9

(b)

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

10 issue in the other litigation that some or all of the material covered by the subpoena or order is
11 subject to this Protective Order. Such notification shall include a copy of this Stipulated
12 Protective Order; and
13

(c)

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

14 the Designating Party whose Protected Material may be affected.6
15

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

16 or court order shall not produce any information designated in this action as “CONFIDENTIAL”,
17 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or “HIGHLY CONFIDENTIAL –
18 SOURCE CODE” before a determination by the court from which the subpoena or order issued,
19 unless the Party has obtained the Designating Party’s permission. The Designating Party shall
20 bear the burden and expense of seeking protection in that court of its confidential material – and
21 nothing in these provisions should be construed as authorizing or encouraging a Receiving Party
22 in this action to disobey a lawful directive from another court.
23
24
25
26
6
The purpose of imposing these duties is to alert the interested parties to the existence of this
27 Protective Order and to afford the Designating Party in this case an opportunity to try to protect its
28 confidentiality interests in the court from which the subpoena or order issued.
-23Case No. 3:12-cv-05331 JST

STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 11.

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

2

LITIGATION

3

(a)

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

4 Party in this action and designated as “CONFIDENTIAL”, “HIGHLY CONFIDENTIAL –
5 ATTORNEYS’ EYES ONLY”, or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such
6 information produced by Non-Parties in connection with this litigation is protected by the
7 remedies and relief provided by this Order. Nothing in these provisions should be construed as
8 prohibiting a Non-Party from seeking additional protections.
9

(b)

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

10 a Non-Party’s confidential information in its possession, and the Party is subject to an agreement
11 with the Non- Party not to produce the Non-Party’s confidential information, then the Party shall:
12

(1)

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

13

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

14

a Non-Party;

15

(2)

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

16

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

17

specific description of the information requested; and

18
19
20

(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

21 within 14 days of receiving the notice and accompanying information, the Receiving Party may
22 produce the Non-Party’s confidential information responsive to the discovery request. If the Non23 Party timely seeks a protective order, the Receiving Party shall not produce any information in its
24 possession or control that is subject to the confidentiality agreement with the Non-Party before a
25 determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
26 burden and expense of seeking protection in this court of its Protected Material.
27
28
-24Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 12.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

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

3 Material to any person or in any circumstance not authorized under this Stipulated Protective
4 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the
5 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
6 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
7 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and
8 Agreement to Be Bound” that is attached hereto as Exhibit A.
9 13.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

10

MATERIAL

11

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

12 produced material is subject to a claim of privilege or other protection, the obligations of the
13 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). If
14 information is produced in discovery that is subject to a claim of privilege or of protection as trial15 preparation material, the party making the claim may notify any party that received the
16 information of the claim and the basis for it. After being notified, a party must promptly return,
17 sequester, or destroy the specified information and any copies it has and may not use or disclose
18 the information until the claim is resolved. The Parties may promptly present the information to
19 the court under seal for a determination of the claim. The producing party must preserve the
20 information until the claim is resolved.
21 14.

MISCELLANEOUS

22

14.1

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

23 seek its modification by the court in the future.
24

14.2

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

25 Order no Party waives any right it otherwise would have to object to disclosing or producing any
26 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
27
28
-25Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

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

Filing Protected Material. Without written permission from the Designating Party

4 or a court order secured after appropriate notice to all interested persons, a Party may not file in
5 the public record in this action any Protected Material. A Party that seeks to file under seal any
6 Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected
7 Material may only be filed under seal pursuant to a court order authorizing the sealing of the
8 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a
9 sealing order will issue only upon a request establishing that the Protected Material at issue is
10 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
11 Receiving Party’s request to file Protected Material under seal pursuant to Civil Local Rule 7912 5(d) and General Order 62 is denied by the court, then the Receiving Party may file the Protected
13 Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by
14 the court.
15 15.

FINAL DISPOSITION

16

Within 60 days after the final disposition of the latest of Acronis I, Acronis II, and the

17 Delaware Action, as defined in paragraph 4, each Receiving Party must return all Protected
18 Material to the Producing Party or destroy such material. As used in this subdivision, “all
19 Protected Material” includes all copies, abstracts, compilations, summaries, and any other format
20 reproducing or capturing any of the Protected Material. Whether the Protected Material is
21 returned or destroyed, the Receiving Party must submit a written certification to the Producing
22 Party (and, if not the same person or entity, to the Designating Party) by the 60-day deadline that
23 (1) identifies (by category, where appropriate) all the Protected Material that was returned or
24 destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,
25 compilations, summaries or any other format reproducing or capturing any of the Protected
26 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
27 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
28
-26Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

1 correspondence, deposition and trial exhibits, expert reports, attorney work product, and
2 consultant and expert work product, even if such materials contain Protected Material. Any such
3 archival copies that contain or constitute Protected Material remain subject to this Protective Order
4 as set forth in Section 4.
5
6

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
QUINN EMANUEL URQUHART &
DATED: April 19, 2013
SULLIVAN

7
8

By: _/s/ Jen A. Kash_____________________

9

Jennifer A. Kash (Bar No. 203679)
[e-mail]
Eric E. Wall (Bar No. 248692)
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California Street, 22nd Floor
San Francisco, California 94111
Telephone: [phone]
Facsimile: [phone]

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David A. Nelson
[e-mail]
Robert R. Cleary, Jr.
[e-mail]
Aaron Perez-Daple
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
500 West Madison Street, Suite 2450
Chicago, IL 60661
Telephone: [phone]
Facsimile: [phone]
Kate Cassidy
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
51 Madison Avenue, 22nd Floor
New York, NY 10010
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Plaintiff-Counterclaim-Defendant
Symantec Corporation

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STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

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DATED: April 19, 2013

FISH & RICHARDSON P.C.
By: _/s/ Olga I. May__________________

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Jason W. Wolff
Olga I. May
Aleksandr Gelberg
FISH & RICHARDSON P.C.
12390 E. Camino Real
San Diego, California 92130
Frank E. Scherkenbach
Steven R. Katz
FISH & RICHARDSON P.C.
225 Franklin Street
Boston, MA 02110-2804
617-542-5070
Fax: [phone]
Thomas L. Halkowski
Warren Keith Mabey , Jr.
FISH AND RICHARDSON P.C.
222 Delaware Avenue
17th floor
P.O. Box 1114
Wilmington, DE 19899-1114
302-778-8407
Fax: [phone]

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Jerry T. Yen
FISH & RICHARDSON P.C.
500 Arguello Street, Suite 500
Redwood City, CA 94063
[phone]
Fax: [phone]Attorneys for DefendantsCounterclaimants Acronis, Inc., Acronis
International GmbH, and OOO Acronis

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-28Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
DATED: April 30, 2013
____________________
JON S. TIGAR
United States District Judge

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-29Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS

EXHIBIT A

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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I,

_________________________________[print or type full name], of

4 ________________________ [print or type full address], declare under penalty of perjury that I
5 have read in its entirety and understand the Stipulated Protective Order that was issued by the
6 United States District Court for the Northern District of California on [date] in the case of
7 Symantec Corp. v. Acronis Inc. et al., Case No. 3:12-cv-05331 JST. I agree to comply with and to
8 be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge
9 that failure to so comply could expose me to sanctions and punishment in the nature of contempt. I
10 solemnly promise that I will not disclose in any manner any information or item that is subject to
11 this Stipulated Protective Order to any person or entity except in strict compliance with the
12 provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court for the

14 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective
15 Order, even if such enforcement proceedings occur after termination of this action.
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I hereby appoint ________________________ [print or type full name] of

17 ______________________________ [print or type full address and telephone number] as my
18 California agent for service of process in connection with this action or any proceedings related to
19 enforcement of this Stipulated Protective Order.
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Date: ______________________
City and State where sworn and signed: ________________________
Printed Name: _______________________________
[printed name]

24 Signature: ________________________________
[signature]
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Case No. 3:12-cv-05331 JST
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS