Aylus Networks, Inc. v. Apple Inc.

Filing 46

PROTECTIVE ORDER - re 45 STIPULATION WITH PROPOSED ORDER Protective Order filed by Aylus Networks, Inc.. Signed by Judge Edward M. Chen on 5/8/14. (bpf, COURT STAFF) (Filed on 5/8/2014)

1 QUINN EMANUEL URQUHART &
SULLIVAN, LLP
2
Harold A. Barza (Bar No. 80888)
[e-mail]
3
Amar L. Thakur (Bar No. 194025)
[e-mail]
4
Vincent Pollmeier (Bar No. 210684)
[e-mail]
5 865 South Figueroa Street, 10th Floor
Los Angeles, California 90017-2543
6 Telephone:
[phone]
Facsimile:
[phone]
7
QUINN EMANUEL URQUHART &
8 SULLIVAN, LLP
William O. Cooper (Bar No. 279385)
9
[e-mail]
50 California Street, 22nd Floor
10 San Francisco, California 94111
Telephone: [phone]
11 Facsimile:
[phone]
12 Attorneys for Plaintiff,
Aylus Networks, Inc.
13

MARK D. FOWLER, Bar No. 124235
[e-mail]
CHRISTINE K. CORBETT, Bar No. 209128
[e-mail]
ROBERT BUERGI, Bar No. 242910
[e-mail]
ERIK R. FUEHRER, Bar No. 252578
[e-mail]
JONATHAN HICKS, Bar No. 274634
[e-mail]
DLA PIPER LLP (US)
2000 University Avenue
East Palo Alto, CA 94303-2214
Telephone: [phone]
Facsimile: 650.833.2001
ROBERT WILLIAMS, Bar No. 246990
[e-mail]
DLA PIPER LLP (US)
401 B Street, Suite 1700
San Diego, CA 92101-4297
Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendant
APPLE INC.

14
15

UNITED STATES DISTRICT COURT

16

NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18
19 Aylus Networks, Inc.,
20
21

CASE NO. 3:13-cv-4700-EMC

Plaintiff,
STIPULATED PROTECTIVE ORDER
REGARDING THE DISCLOSURE AND
USE OF DISCOVERY MATERIALS

vs.

22 Apple Inc.
23

Defendant.

24
25
26

Plaintiff Aylus Networks, Inc. (“Plaintiff”) and Defendant Apple Inc.

27 (“Defendant”) anticipate that documents, testimony, or information containing or reflecting
28

05010.00001/5917454.2

STIPULATED PROTECTIVE ORDER – PAGE 1

1 confidential, proprietary, trade secret, and/or commercially sensitive information are likely to
2 be disclosed or produced during the course of discovery, initial disclosures, and supplemental
3
4

disclosures in this case and request that the Court enter this Stipulated Protective Order setting
forth the conditions for treating, obtaining, and using such information.

5
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds

6
7

good cause for the following Stipulated Protective Order Regarding the Disclosure and Use of

8 Discovery Materials (“Order” or “Protective Order”).
9

1.

10
11

PURPOSES AND LIMITATIONS
(a)

Protected Material designated under the terms of this Protective Order shall

be used by a Receiving Party solely for this case, and shall not be used directly or indirectly for

12
any other purpose whatsoever.
13
(b)

14

The Parties acknowledge that this Order does not confer blanket protections

15 on all disclosures during discovery, or in the course of making initial or supplemental disclosures
16 under Rule 26(a). Designations under this Order shall be made with care and shall not be made
17 absent a good faith belief that the designated material satisfies the criteria set forth below. If it
18 comes to a Producing Party’s attention that designated material does not qualify for protection at
19

all, or does not qualify for the level of protection initially asserted, the Producing Party must

20
promptly notify all other Parties that it is withdrawing or changing the designation.
21
(c)

22
23
24
25
26
27

The parties acknowledge that this Stipulated Protective Order does not

confer blanket protections on all disclosures or responses to discovery and that the protection it
affords from public disclosure and use extends only to the limited information or items that are
entitled to confidential treatment under the applicable legal principles. The parties further
acknowledge, as set forth in Section 14.4 below, that this Stipulated Protective Order does not
entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth the

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STIPULATED PROTECTIVE ORDER – PAGE 2

1 procedures that must be followed and the standards that will be applied when a party seeks
2 permission from the court to file material under seal.
3
4

2.

DEFINITIONS
(a)

5

“Discovery Material” means all items or information, including from any

6 non-party, regardless of the medium or manner generated, stored, or maintained (including, among
7 other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated
8

in connection with discovery or Rule 26(a) disclosures in this case.

9
(b)

“Outside Counsel” means attorneys, paralegals, and their staff, and any

10
11

copying or clerical litigation support services working at the direction of such counsel, paralegals,

12 and staff who are not employees of a Party but are retained to represent or advise a Party and have
13 appeared in this action on behalf of that Party or are affiliated with a law firm that has appeared on
14 behalf of that Party.
15
16

(c)

“Patents-in-suit” means U.S. Patent No. RE44,412, and any other patent

asserted in this action, as well as any related patents, patent applications, provisional patent

17
applications, continuations, and/or divisionals.
18
(d)

19

“Party” means any party to this case, including all of its officers, directors,

20 employees, consultants, retained experts, and Outside Counsel and their support staffs.
(e)

21

“Producing Party” means a Party or non-party that discloses or produces

22 any Discovery Material in this case.
23
24

(f)

“Protected Material” means any Discovery Material that is designated as

“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL

25
26
27

- OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” as provided for in this Order.
Protected Material shall not include: (i) advertising materials that have been actually published or

28 publicly disseminated; (ii) materials that show on their face they have been disseminated to the
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STIPULATED PROTECTIVE ORDER – PAGE 3

1 public; and (iii) any Discovery Materials known to the Receiving Party prior to the disclosure or
2 obtained by the Receiving Party after the disclosure from a source who obtained the information
3
4

lawfully and under no obligation of confidentiality to the Producing Party. This provision does
not limit a Party’s ability, or waive a Party’s rights under the Federal Rules of Civil Procedure or

5
6
7

any other rules or orders to enforce confidentiality obligations of the Parties or any other third
parties, including, but not limited to, the right to claw back any inadvertently produced materials.
(g)

8

“Receiving Party” means a Party who receives Discovery Material from a

9 Producing Party.
10
11

(h)

“Source Code” means computer code, scripts, assembly, binaries, object

code, source code listings and descriptions of source code, object code listings and descriptions of

12
object code, and Hardware Description Language (HDL) or Register Transfer Level (RTL) files
13
14
15

that describe the hardware design of any ASIC or other chip.
3.

COMPUTATION OF TIME
The computation of any period of time prescribed or allowed by this Order shall be

16

17 governed by the provisions for computing time set forth in Federal Rules of Civil Procedure 6.
18
4.

SCOPE

19
(a)

20

The protections conferred by this Order cover not only Discovery Material

21 governed by this Order as addressed herein, but also any information copied or extracted
22 therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
23 conversations, or presentations by Parties or their counsel in court or in other settings that might
24 reveal Protected Material.
25

(b)

Nothing in this Protective Order shall prevent or restrict a Producing Party’s

26
own disclosure or use of its own Protected Material for any purpose, and nothing in this Order
27
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STIPULATED PROTECTIVE ORDER – PAGE 4

1 shall preclude any Party from showing its Protected Material to an individual who prepared the
2 Protected Material.
3
4

(c)

Nothing in this Order shall be construed to prejudice any Party’s right to use

any Protected Material in court or in any court filing with the consent of the Producing Party or by

5
6

order of the Court.
(d)

7

This Order is without prejudice to the right of any Party to seek further or

8 additional protection of any Discovery Material or to modify this Order in any way, including,
9 without limitation, an order that certain matter not be produced at all.
10

5.

11

DURATION
Even after the Final Disposition of this case, the confidentiality obligations

12
imposed by this Order shall remain in effect until a Producing Party agrees otherwise in writing or
13
14

a court order otherwise directs. "Final Disposition" shall be deemed to be the later of (1) dismissal

15 of all claims and defenses in this action, with or without prejudice; and (2) final judgment herein
16 after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
17 action, including the time limits for filing any motions or applications for extension of time
18 pursuant to applicable law.
19

6.

ACCESS TO AND USE OF PROTECTED MATERIAL

20
(a)

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

21
22

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

23 prosecuting, defending or attempting to settle this litigation, and not for any other purpose. Such
24 Protected Material may be disclosed only to the categories of persona and under the conditions
25 described in this Order. When the litigation has been terminated, a Receiving Party must comply
26

with the provisions of section 19 below (FINAL DISPOSITION). Protected Material must be

27
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STIPULATED PROTECTIVE ORDER – PAGE 5

1 stored and maintained by a Receiving Party at a location and in a secure manner that ensures that
2 access is limited to the persons authorized under this Order.
3
4

(b)

Patent Prosecution Bar. Absent the written consent of the Producing Party,

any individual who receives access to “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

5
6
7

“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” information
shall not be involved in any of the following: (i) the prosecution of patents or patent applications

8 relating to the functionality, operation, and design of a content delivery system for delivery of
9 content from a media server located on a wide area network to a media renderer using a mobile
10 device (e.g., smartphone, tablet, etc.), including without limitation the patents asserted in this
11

action and any patent or application claiming priority to or otherwise related to the patents asserted

12
in this action, before any foreign or domestic agency, including the United States Patent and
13
14

Trademark Office (“the Patent Office”); and (ii) on behalf of Aylus Networks, Inc., the acquisition

15 of patents (including patent applications) with the right to sublicense, relating to the functionality,
16 operation, and design of a content delivery system for delivery of content from a media server
17 located on a wide area network to a media renderer using a mobile device (e.g., smartphone,
18 tablet, etc.) For purposes of this paragraph, “prosecution” includes directly or indirectly drafting,
19

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

20
includes, for example, original prosecution, reissue, and reexamination proceedings. To avoid any
21
22

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

23 patent before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte
24 reexamination, or inter partes reexamination). This Prosecution Par shall begin when access to
25 “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – OUTSIDE
26
27

ATTORNEYS’ EYES ONLY – SOURCE CODE” information is first received by the affected
individual, and shall end two (2) years after the final termination of this case.

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STIPULATED PROTECTIVE ORDER – PAGE 6

(c)

1

Secure Storage, No Export. Protected Material must be stored and

2 maintained by a Receiving Party at a location in the United States and in a secure manner that
3
4

ensures that access is limited to the persons authorized under this Order. To ensure compliance
with applicable United States Export Administration Regulations, Protected Material may not be

5
6
7

exported outside the United States or released to any foreign national (even if within the United
States).
(d)

8

Legal Advice Based on Protected Material. Nothing in this Protective Order

9 shall be construed to prevent counsel from advising their clients with respect to this case based in
10 whole or in part upon Protected Materials, provided counsel does not disclose the Protected
11

Material itself except as provided in this Order.

12
(e)

Limitations. Nothing in this Order shall restrict in any way a Producing

13
14

Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any

15 way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
16 publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
17 to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
18 and/or provided by the Producing Party to the Receiving Party or a non-party without an
19

obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the

20
Producing Party; or (v) pursuant to order of the Court.
21
22

7.

DESIGNATING PROTECTED MATERIAL
(a)

23

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

24 Party or Non-Party that designates information or items for protection under this Stipulated
25 Protective Order must take care to limit any such designation to specific documents and testimony
26
27

that qualify under the appropriate standards. Mass, indiscriminate, or routinized designations are
prohibited. If it comes to a Producing Party's attention that information or items that it designated

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STIPULATED PROTECTIVE ORDER – PAGE 7

1 for protection do not qualify for protection at all or do not qualify for the level of protection
2 initially asserted, that Producing Party must promptly notify the Receiving Party that it is
3

withdrawing the mistaken designation.

4

(b)

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

5
6
7

Order, or as otherwise stipulated or ordered, Discovery Material that qualifies for protection under
this Order must be clearly so designated before the material is disclosed or produced.
(c)

8

Available Designations. Any Producing Party may designate Discovery

9 Material with any of the following designations, provided that it meets the requirements for such
10 designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
11

EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE

12
CODE.”
13
(d)

14

Written Discovery and Documents and Tangible Things.

Written

15 discovery, documents (which include “electronically stored information,” as that phrase is used in
16 Federal Rule of Procedure 34), and tangible things that meet the requirements for the
17 confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
18 appropriate designation on every page of the written material prior to production. For digital files
19

being produced, the Producing Party may mark each viewable page or image with the appropriate

20
designation, and mark the medium, container, and/or communication in which the digital files
21
22

were contained. In the event that original documents are produced for inspection, the original

23 documents shall be presumed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” during the
24 inspection and re-designated, as appropriate during the copying process.
25
26
27

(e)

Native Files. Where electronic files and documents are produced in native

electronic format, such electronic files and documents shall be designated for protection under this
Order by appending to the file names or designators information indicating whether the file

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STIPULATED PROTECTIVE ORDER – PAGE 8

1 contains

“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or

2 “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” material, or
3
4

shall use any other reasonable method for so designating Protected Materials produced in
electronic format. When electronic files or documents are printed for use at deposition, in a court

5
6
7

proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to
paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed

8 document corresponding to the designation of the Designating Party and including the production
9 number and designation associated with the native file. No one shall seek to use in this case a .tiff,
10 .pdf or other image format version of a document produced in native file format without first (1)
11

providing a copy of the image format version to the Producing Party so that the Producing Party

12
can review the image to ensure that no information has been altered, and (2) obtaining the consent
13
14

of the Producing Party, which consent shall not be unreasonably withheld.
(f)

15

Depositions and Testimony. All deposition transcripts shall initially be

16 treated as CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in their entirety for thirty (30) days
17 following the production of the final transcript from the Court Reporter, after which time, the
18 transcript will have no confidentiality designation, unless the parties identify which portions of the
19

transcript should be designated under the Protective Order. The parties shall identify any portions

20
of the transcript which they believe should be designated under the Protective Order and the
21
22

designation of that portion within thirty (30) days following the production of the final transcript

23 from the Court Reporter. Each party shall have fourteen (14) days following the designation of
24 any portion of the transcript as covered under the Protective Order to object to that designation.
25 Any Protected Material that is used in the taking of a deposition shall remain subject to the
26
27

provisions of this Protective Order, along with the transcript pages of the deposition testimony
dealing with such Protected Material. The court reporter shall be informed of this Protective

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STIPULATED PROTECTIVE ORDER – PAGE 9

1 Order and shall be required to operate in a manner consistent with this Protective Order. In the
2 event the deposition is videotaped, the original and all copies of the videotape shall be marked by
3
4

the video technician to indicate that the contents of the videotape are subject to this Protective
Order, substantially along the lines of “This videotape contains confidential testimony used in this

5
6
7

case and is not to be viewed or the contents thereof to be displayed or revealed except pursuant to
the terms of the operative Protective Order in this matter or pursuant to written stipulation of the

8 parties.” Counsel for any Producing Party shall have the right to exclude from oral depositions,
9 other than the deponent, deponent’s counsel, the reporter and videographer (if any), any person
10 who is not authorized by this Protective Order to receive or access Protected Material based on the
11

designation of such Protected Material. Such right of exclusion shall be applicable only during

12
periods of examination or testimony regarding such Protected Material.
13
14

8.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
(a)

15

A

Producing

Party

may

designate

Discovery

Material

as

16 “CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially
17 sensitive information.
18
19

(b)

Unless otherwise ordered by the Court, Discovery Material designated as

“CONFIDENTIAL” may be disclosed only to the following:

20
(i)

The Receiving Party’s Outside Counsel, such counsel’s paralegals

21
22

and staff, and any copying or clerical litigation support services working at the direction of such

23 counsel, paralegals, and staff;
(ii)

24

Not more than three (3) representatives of the Receiving Party who

25 are directors, officers, former CEO, Mark Edwards, or employees of the Receiving Party, who
26
27

may be, but need not be, in-house counsel for the Receiving Party, as well as their immediate
paralegals and staff, to whom disclosure is reasonably necessary for this case, provided that: (a)

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STIPULATED PROTECTIVE ORDER – PAGE 10

1 each such person has agreed to be bound by the provisions of the Protective Order by signing a
2 copy of Exhibit A; and (b) no unresolved objections to such disclosure exist after proper
3

notice has been given to all Parties as set forth in Paragraph 12 below;

4

(iii)

Any outside expert or consultant (as well as their staff) retained by

5
6
7

the Receiving Party to assist in this action, provided that disclosure is reasonably appropriate to
perform such work; and provided that: (a) such expert or consultant has agreed to be bound by

8 the provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or
9 consultant is not a current officer, director, or employee of a Party or of a competitor of a Party,
10 nor anticipated at the time of retention to become an officer, director or employee of a Party or of
11

a competitor of a Party; (c) such expert or consultant accesses the materials in the United States

12
only, and does not transport them to or access them from any foreign jurisdiction; and (d) no
13
14

unresolved objections to such disclosure exist after proper notice has been given to all Parties as

15 set forth in Paragraph 12 below;
(iv)

16

Court reporters, stenographers and videographers retained to record

17 testimony taken in this action;
18

(v)
(vi)

19

The Court, jury, and court personnel;
Graphics, translation, design, jury and/or trial consulting personnel,

20
having first agreed to be bound by the provisions of the Protective Order by signing a copy of
21
22

Exhibit A;
(vii)

23

Mock jurors who have signed an undertaking or agreement agreeing

24 not to publicly disclose Protected Material and to keep any information concerning Protected
25 Material confidential;
26
27
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STIPULATED PROTECTIVE ORDER – PAGE 11

(viii) Any mediator who is assigned to hear this matter, and his or her

1

2 staff, subject to their agreement to maintain confidentiality to the same degree as required by this
3

Protective Order; and

4

(ix)

Any other person with the prior written consent of the Producing

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6
7

Party.
9.

DISCOVERY MATERIAL DESIGNATED
ATTORNEYS’ EYES ONLY”

AS

“CONFIDENTIAL

–

8
(a)

9

A Producing Party may designate Discovery Material as “CONFIDENTIAL

10 – ATTORNEYS’ EYES ONLY” if it contains or reflects information that is extremely
11 confidential and/or sensitive in nature and the Producing Party reasonably believes that the
12 disclosure of such Discovery Material is likely to cause economic harm or significant competitive
13 disadvantage to the Producing Party. The Parties agree that the following information, if non14

public, shall be presumed to merit the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

15
designation:

trade secrets, pricing information, financial data, sales information, sales or

16
17

marketing forecasts or plans, business plans, sales or marketing strategy, product development

18 information, engineering documents, testing documents, employee information, and other non19 public information of similar competitive and business sensitivity.
20
21

(b)

Unless otherwise ordered by the Court, Discovery Material designated as

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:

22

(i)

The Receiving Party’s Outside Counsel, provided that such Outside

23
24
25

Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party;
(ii)

26

Any outside expert or consultant (as well as their staff) retained by

27 the Receiving Party to assist in this action, provided that disclosure is reasonably appropriate to
28
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STIPULATED PROTECTIVE ORDER – PAGE 12

1 perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the
2 provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is
3
4

not a current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated
at the time of retention to become an officer, director, or employee of a Party or of a competitor of

5
6
7

a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined
by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a

8 competitor of a Party; (d) such expert or consultant accesses the materials in the United States
9 only, and does not transport them to or access them from any foreign jurisdiction; and (e) no
10 unresolved objections to such disclosure exist after proper notice has been given to all Parties as
11

set forth in Paragraph 12 below;

12
(iii)

Court reporters, stenographers and videographers retained to record

13
14

testimony taken in this action;

15

(iv)

The Court, jury, and court personnel;

16

(v)

Graphics, translation, design, jury and/or trial consulting personnel,

17 having first agreed to be bound by the provisions of the Protective Order by signing a copy of
18 Exhibit A;
19

(vi)

Any mediator who is assigned to hear this matter, and his or her

20
staff, subject to their agreement to maintain confidentiality to the same degree as required by this
21
22

Protective Order; and
(vii)

23

Any other person with the prior written consent of the Producing

24 Party.
25
26
27

(c)

In addition, a Party may disclose arguments and materials derived from

Discovery Material designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to mock
jurors who have signed an undertaking or agreement agreeing not to publicly disclose Protected

28
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STIPULATED PROTECTIVE ORDER – PAGE 13

1 Material and to keep any information concerning Protected Material confidential. A Party may
2 not disclose to mock jurors any original, as-produced materials or information (including, for
3
4

example, documents, deposition testimony, or interrogatory responses) produced by another Party
designated as “CONFIDENTIAL - ATTORNEYS’ EYES ONLY.”

5
6

10.

7
8

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL
OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”
(a)

–

To the extent production of Source Code becomes necessary to the

prosecution or defense of the case, a Producing Party may designate Source Code as

9
“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” if it comprises
10
11

or includes confidential, proprietary, and/or trade secret Source Code.
(b)

12

Nothing in this Order shall be construed as a representation or admission

13 that Source Code is properly discoverable in this action, or to obligate any Party to produce any
14 Source Code.
15
16

(c)

Unless otherwise ordered by the Court, Discovery Material designated as

“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be

17
18
19

subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to
Paragraph 11 below, solely to:
(i)

20

The Receiving Party’s Outside Counsel, provided that such Outside

21 Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
22 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party;
23

(ii)

Any outside expert or consultant retained (and their staff) by the

24
Receiving Party to assist in this action, provided that disclosure is reasonably appropriate to
25
26

perform such work; and provided that: (a) such expert or consultant has agreed to be bound by the

27 provisions of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is
28 not a current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated
05010.00001/5917454.2

STIPULATED PROTECTIVE ORDER – PAGE 14

1 at the time of retention to become an officer, director or employee of a Party or of a competitor of
2 a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined
3
4

by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a
competitor of a Party; and (d) no unresolved objections to such disclosure exist after proper notice

5
6

has been given to all Parties as set forth in Paragraph 12 below;
(iii)

7

Court reporters, stenographers and videographers retained to record

8 testimony taken in this action;
9

(iv)

The Court, jury, and court personnel;

10

(v)

Any mediator who is assigned to hear this matter, and his or her

11

staff, subject to their agreement to maintain confidentiality to the same degree as required by this

12
Protective Order; and
13
(vi)

14

Any other person with the prior written consent of the Producing

15 Party.
16

11.

17

DISCLOSURE AND REVIEW OF SOURCE CODE
(a)

Any Source Code that is produced by Plaintiff shall be made available for

18 inspection in electronic format at the San Francisco office of its outside counsel, Quinn Emanuel
19

Urquhart and Sullivan LLP, or any other location mutually agreed by the Parties. Any Source

20
Code that is produced by Apple Inc. will be made available for inspection at the Silicon Valley
21
22

office of its outside counsel, DLA Piper LLP, or any other location mutually agreed by the Parties.

23 Source Code will be made available for inspection between the hours of 9 a.m. and 6 p.m. on
24 business days (i.e., weekdays that are not Federal holidays), although the Parties will be
25 reasonable in accommodating reasonable requests to conduct inspections at other times.
26
27
28
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STIPULATED PROTECTIVE ORDER – PAGE 15

(b)

1

Prior to the first inspection of any requested Source Code, the Receiving

2 Party shall provide twenty-one (21) days notice of the Source Code that it wishes to inspect. The
3

Receiving Party shall provide seven (7) days notice prior to any additional inspections.

4

(c)

Source Code that is designated “CONFIDENTIAL – OUTSIDE

5
6
7

ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be produced for inspection and review
subject to the following provisions, unless otherwise agreed by the Producing Party:
(i)

8

All Source Code shall be made available by the Producing Party to

9 the Receiving Party’s outside counsel and/or experts in a secure room on a secured computer
10 without Internet access or network access to other computers and on which all access ports have
11

been disabled (except for one printer port), as necessary and appropriate to prevent and protect

12
against any unauthorized copying, transmission, removal or other transfer of any Source Code
13
14

outside or away from the computer on which the Source Code is provided for inspection (the

15 “Source Code Computer” in the “Source Code Review Room”). The Source Code Computer shall
16 be a Windows or MacOS computer with a keyboard, mouse and at least a 24 inch Monitor, or a
17 Windows or MacOS laptop. Apple shall make its source code available on an Apple MacBook
18 Pro with a with a memory of at least 8 GB, processor speed of at least 2.66 GHz (Intel Core i7)
19

operating on Mac OSX Snow Leopard (unless the Source Code is more easily reviewed on earlier

20
versions of OSX) with FileVault enabled, XCode, Acrobat Reader, Text Edit, BBEdit, Text
21
22

Wrangler, Office 2008 and SlickEdit. The Producing Party shall install tools that are sufficient for

23 viewing and searching the code produced, on the platform produced, if such tools exist and are
24 presently used in the ordinary course of the Producing Party’s business. The Receiving Party’s
25 outside counsel and/or experts may request that commercially available software tools for viewing
26
27

and searching Source Code be installed on the secured computer, provided, however, that (a) the
Receiving Party possesses an appropriate license to such software tools; (b) the Producing Party

28
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STIPULATED PROTECTIVE ORDER – PAGE 16

1 may reasonably object to software tools; and (c) such other software tools are reasonably
2 necessary for the Receiving Party to perform its review of the Source Code consistent with all of
3
4

the protections herein. The Receiving Party must provide the Producing Party with the CD or
DVD containing such licensed software tool(s) at least fourteen (14) days in advance of the date

5
6
7

upon which the Receiving Party wishes to have the additional software tools available for use on
the Source Code Computer.
(ii)

8

No recordable media or recordable devices, including without

9 limitation sound recorders, computers, cellular phones, peripheral equipment, cameras, CDs,
10 DVDs, or drives of any kind, shall be permitted into the Source Code Review Room. The
11

Producing Party does agree, however, to make available one landline that may be used by experts

12
to communicate with Outside Counsel of Record, but in no event shall more than four (4)
13
14

consecutive lines of code be read out loud during any such communications and Outside Counsel

15 agrees to not communicate via speaker phone during any such communications.
(iii)

16

The Receiving Party’s outside counsel and/or experts shall be

17 entitled to take notes relating to the Source Code but may not copy the Source Code into the notes
18 and may not take such notes on the Source Code Computer itself. In addition to the Source Code
19

Computer, the Producing Party shall make available within the Source Code Review Room a

20
Notetaking Computer for purposes of enabling the Receiving Party’s outside counsel and/or
21
22

experts to take notes relating to the Source Code. The Notetaking Computer shall have pre-

23 installed a commercially reasonable text editing program, Microsoft Excel or OpenOffice Calc
24 spreadsheet software, and an encryption program, such as TrueCrypt. The Reviewing Party shall,
25 upon completion of its review, store its notes within an encrypted volume, such as TrueCrypt
26
27

volume, protected by at least a 20-character password. Upon completion of each review session,
the Producing Party shall, upon request by the Receiving Party, provide the Receiving Party with

28
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STIPULATED PROTECTIVE ORDER – PAGE 17

1 an electronic storage medium, such as a USB storage device, containing the encrypted volume file
2 with the notes taken by the Receiving Party. At the start of each review session, the Producing
3
4

Party also shall, upon request by the Receiving Party, copy an updated encrypted volume file
containing any revised notes taken by the Receiving Party, from such electronic storage medium

5
6
7

onto the Notetaking Computer, for further editing. The Receiving Party shall maintain any notes
taken removed from the Source Code Review Room in the encrypted form described above at all

8 times when storing or transmitting them. The Producing Party shall not monitor or review any
9 notes taken on the Notetaking Computer, shall not receive the encryption password, and shall not
10 interact with any note files on the computer in any way except to transfer the encrypted volume
11

files, without reviewing their contents, to and from a USB storage medium as described above.

12
The use of such computer shall not be asserted to be a waiver of any privilege or protection. The
13
14

Receiving Party’s outside counsel and/or experts may not copy the Source Code into the notes.

15 Any files containing notes taken on the Notetaking Computer shall be marked as
16 “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” both in the
17 file name and in the header or footer of each electronic page of the notes.
18
19

(iv)

The Producing Party may visually monitor the activities of the

Receiving Party’s representatives during any Source Code review, but only to ensure that no

20
unauthorized electronic records of the Source Code and no information concerning the Source
21
22

Code are being created or transmitted in any way. The Producing Party will make a good faith

23 effort to provide a separate room, in addition to the Source Code Review Room, where individuals
24 reviewing source code can go to use their personal computers, cell phones, and otherwise work in
25 privacy without any monitor from the Producing Party. The parties agree and acknowledge that
26
27

there may be circumstances under which such a separate room may not be available. The Parties
agree to work together in good faith to resolve any disputes that arise in this regard.

28
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STIPULATED PROTECTIVE ORDER – PAGE 18

(v)

1

No copies of all or any portion of the Source Code may leave the

2 room in which the Source Code is inspected except as otherwise provided herein. Further, no
3
4

other written or electronic record of the Source Code is permitted except as otherwise provided
herein. The Producing Party shall make available a laser printer with commercially reasonable

5
6
7

printing speeds for on-site printing during inspection of the Source Code. The Receiving Party
may print limited portions of the Source Code only when necessary to prepare court filings or

8 pleadings or other papers (including a testifying expert’s expert report). Any printed portion that
9 consists of more than fifteen (15) pages of a continuous block of Source Code shall be presumed
10 to be excessive, and the burden shall be on the Receiving Party to demonstrate the need for such a
11

printed copy. The Receiving Party shall not print more than 200 pages of Source Code during this

12
case.

The Producing Party agrees, however, to not unreasonably withhold requests to print

13
14

additional Source Code and agrees that the burden of showing that any additional Source Code

15 print-outs is unnecessary shall rest with the Producing Party. The Receiving Party shall not print
16 Source Code in order to review blocks of Source Code elsewhere in the first instance, i.e., as an
17 alternative to reviewing that Source Code electronically on the Source Code Computer, as the
18 Parties acknowledge and agree that the purpose of the protections herein would be frustrated by
19

printing portions of code for review and analysis elsewhere, and that printing is for the purpose of

20
preparing court filings or pleadings or other papers (e.g., an expert report). Upon printing any
21
22

such portions of Source Code, the printed pages shall be collected by the Producing Party. The

23 Producing Party shall Bates number, copy, and label “CONFIDENTIAL – OUTSIDE
24 ATTORNEYS’ EYES ONLY - SOURCE CODE” any pages printed by the Receiving Party.
25 Within seven (7) days, the Producing Party shall either (i) provide one copy set of such pages to the
26
27

Receiving Party or (ii) inform the Requesting Party that it objects that the printed portions are
excessive and/or not done for a permitted purpose. The Producing Party shall make itself available

28
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STIPULATED PROTECTIVE ORDER – PAGE 19

1 to meet and confer within three (3) business days of any request by the Receiving Party to meet
2 and confer in this regard. If, after meeting and conferring, the Producing Party and the Receiving
3
4

Party cannot resolve the objection, the Receiving Party shall be entitled to seek a Court resolution
of whether the printed Source Code in question is narrowly tailored and was printed for a permitted

5
6
7

purpose. The burden shall be on the Receiving Party to demonstrate that such printed portions are
no more than is reasonably necessary for a permitted purpose and not merely printed for the

8 purposes of review and analysis elsewhere. The printed pages shall constitute part of the Source
9 Code produced by the Producing Party in this action.
10
(vi)

11

All persons who will review a Producing Party’s Source Code on

12 behalf of a Receiving Party, including members of a Receiving Party’s outside law firm, shall be
13 identified in writing to the Producing Party at least five (5) days in advance of the first time that
14

such person reviews such Source Code. Such identification shall be in addition to any other

15
disclosure required under this Order. All persons viewing Source Code shall sign on each day
16
17

they view Source Code a log that will include the names of persons who enter the locked room to

18 view the Source Code and when they enter and depart and the Producing Party shall maintain such
19 log.
20
21
22

(vii)

Unless otherwise agreed in advance by the Parties in writing,

following each day on which inspection is done under this Order, the Receiving Party’s outside
counsel and/or experts shall remove all notes, documents, and all other materials from the Source

23
24
25

Code Review Room. The Producing Party shall not be responsible for any items left in the room
following each inspection session, and the Receiving Party shall have no expectation of

26 confidentiality for any items left in the room following each inspection session without a prior
27 agreement to that effect. Proper identification of all authorized persons shall be provided prior to
28
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STIPULATED PROTECTIVE ORDER – PAGE 20

1 any access to the secure room or the computer containing Source Code. Proper identification
2 requires showing, at a minimum, a photo identification card sanctioned by the government of any
3
4

State of the United States, by the government of the United States, or by the nation state of the
authorized person’s current citizenship. Access to the secure room or the Source Code Computer

5
6
7

may be denied, at the discretion of the supplier, to any individual who fails to provide proper
identification.
(viii) Other than as provided above, the Receiving Party will not copy,

8

9 remove, or otherwise transfer any Source Code from the Source Code Computer including,
10 without limitation, copying, removing, or transferring the Source Code onto any recordable media
11

or recordable device. The Receiving Party will not transmit any Source Code in any way from the

12
Producing Party’s facilities or the offices of its outside counsel of record.
13
(ix)

14

The Receiving Party’s outside counsel of record may make no more

15 than seven (7) additional paper copies of any portions of the Source Code received from a
16 Producing Party pursuant to Paragraph 11(c)(v), not including copies attached to court filings or
17 used at depositions, and shall maintain a log of all paper copies of the Source Code. The log shall
18 include the names of the reviewers and/or recipients of paper copies and locations where the paper
19

copies are stored. Upon two (2) day’s advance notice to the Receiving Party by the Producing

20
Party, the Receiving Party shall provide a copy of this log to the Producing Party.
21
(x)

22

The Receiving Party’s outside counsel of record and any person

23 receiving a copy of any Source Code shall maintain and store any paper copies of the Source Code
24 at their offices in a manner that prevents duplication of or unauthorized access to the Source Code,
25 including, without limitation, storing the Source Code in a locked room or cabinet at all times
26

when it is not in use. No more than a total of ten (10) individuals of the Receiving Party shall

27
28
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STIPULATED PROTECTIVE ORDER – PAGE 21

1 have access to the printed portions of the Producing Party’s Source Code (except insofar as such
2 code appears in any court filing or expert report).
3
4

(xi)

For depositions, the Receiving Party shall not bring copies of any

printed Source Code. The parties shall make a good faith effort to provide at least five (5) days

5
6
7

notice before the date of the deposition about the specific portions of Source Code the Receiving
Party wishes to use at the deposition, and the Producing Party shall bring printed copies of those

8 portions to the deposition for use by the Receiving Party. Should notice be provided in less than five
9 (5) days, Apple will make its best effort to bring printed copies of those portions to the deposition
10 for use by the Receiving Party. Copies of Source Code that are marked as deposition exhibits shall
11

not be provided to the Court Reporter or attached to deposition transcripts; rather, the deposition

12
record will identify the exhibit by its production numbers. All paper copies of Source Code
13
14

brought to the deposition shall remain with the Producing Counsel’s outside counsel for secure

15 destruction in a timely manner following the deposition.
(xii)

16

Except as provided in this sub-paragraph, absent express written

17 permission from the Producing Party, the Receiving Party may not create electronic images, or any
18 other images, or make electronic copies, of the Source Code from any paper copy of Source Code
19

for use in any manner (including by way of example only, the Receiving Party may not scan the

20
Source Code to a PDF or photograph the code). Images or copies of Source Code shall not be
21
22

included in correspondence between the Parties (references to production numbers shall be used

23 instead), and shall be omitted from pleadings and other papers whenever practical. If a Party
24 reasonably believes that it needs to submit a portion of Source Code as part of a filing with the
25 Court, the Party shall file a Motion to File Under Seal and all portions of the Source Code and all
26
27

reference pertaining to the Source Code shall be sealed. Access to the Receiving Party’s
submission, communication, and/or disclosure of electronic files or other materials containing any

28
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STIPULATED PROTECTIVE ORDER – PAGE 22

1 portion of Source Code (paper or electronic) shall at all times be limited solely to individuals who
2 are expressly authorized to view Source Code under the provisions of this Order. The Receiving
3
4

Party shall maintain a log of all such electronic copies of any portion of Source Code in its
possession or in the possession of its retained consultants, including the names of the reviewers

5
6
7

and/or recipients of any such electronic copies, and the locations and manner in which the
electronic copies are stored.

Additionally, any such electronic copies must be labeled

8 “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” as provided
9 for in this Order.
10

12.

11

NOTICE OF DISCLOSURE
(a)

Prior to disclosing any Protected Material to any person described in

12
Paragraphs 8(b)(iii), 9(b)(ii), or 10(c)(ii) (referenced below as “Person”), the Party seeking to
13
14

disclose such information shall provide the Producing Party with written notice that includes:

15

(i) the name of the Person;

16

(ii) a current curriculum vitae of the Person;

17

(iii) the present employer and title of the Person;

18

(iv) an identification of all of the Person’s past and current employment and consulting

19

relationships, including direct relationships and relationships through entities

20
owned or controlled by the Person, including but not limited to an identification of
21
any individual or entity with or for whom the person is employed or to whom the

22
23

person provides consulting services relating to the design, development, operation,

24

or patenting of a content delivery system for delivery of content from a media

25

server located on a wide area network to a media renderer using a mobile device

26

(e.g., smartphone, tablet, etc.); or provides consulting services at the time of

27

execution of Exhibit A hereto relating to the acquisition of intellectual property

28
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STIPULATED PROTECTIVE ORDER – PAGE 23

1

assets relating to a content delivery system for delivery of content from a media

2

server located on a wide area network to a media renderer using a mobile device

3
4

(e.g., smartphone, tablet, etc.).
(v) an identification by patent application number of all pending patent applications on

5
which the Person is named as an inventor, in which the Person has any ownership

6

interest or in which the Person is involved at the time of or within sixty (60) days of

7
8

execution of Exhibit A hereto advising on, consulting on, preparing, prosecuting,

9

drafting, editing, amending, or otherwise affecting the scope of the claims relating

10

to a content delivery system for delivery of content from a media server located on

11

a wide area network to a media renderer using a mobile device (e.g., smartphone,

12
tablet, etc.);
13
14

(vi) a list of the cases in which the Person has testified at deposition or trial within the last
five (5) years.

15

16 Further, the Party seeking to disclose Protected Material shall provide such other information
17 regarding the Person’s professional activities reasonably requested by the Producing Party for it to
18 evaluate whether good cause exists to object to the disclosure of Protected Material to the outside
19

expert or consultant. During the pendency of and for a period of two (2) years after the final

20
resolution of this action, including all appeals, the Party seeking to disclose Protected Material
21
22

shall immediately provide written notice of any change with respect to the Person’s involvement

23 in the design, development, operation or patenting of a content delivery system for delivery of
24 content from a media server located on a wide area network to a media renderer using a mobile
25 device (e.g., smartphone, tablet, etc.).
26
27

(b)

Within fourteen (14) days of receipt of the disclosure of the Person, the

Producing Party or Parties may object in writing to the Person for good cause. In the absence of

28
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STIPULATED PROTECTIVE ORDER – PAGE 24

1 an objection at the end of the fourteen (14) day period, the Person shall be deemed approved under
2 this Protective Order. There shall be no disclosure of Protected Material to the Person prior to
3
4

expiration of this fourteen (14) day period. If the Producing Party objects to disclosure to the
Person within such fourteen (14) day period, the Parties shall meet and confer via telephone or in

5
6
7

person within three (3) business days following the objection and attempt in good faith to resolve
the dispute on an informal basis.

If the dispute is not resolved, the Party objecting to the

8 disclosure will have five (5) business days from the date of the meet and confer to seek relief from
9 the Court. If relief is not sought from the Court within that time, the objection shall be deemed
10 withdrawn. If relief is sought, designated materials shall not be disclosed to the Person in question
11

until the Court resolves the objection.

12
(c)

For purposes of this section, “good cause” shall include an objectively

13
14

reasonable concern that the Person will, advertently or inadvertently, use or disclose Discovery

15 Materials in a way or ways that are inconsistent with the provisions contained in this Order.
(d)

16

Prior to receiving any Protected Material under this Order, the Person must

17 execute a copy of the “Agreement to Be Bound by Protective Order” (Exhibit A hereto) and serve
18 it on all Parties.
19

(e)

An initial failure to object to a Person under this Paragraph 12 shall not

20
preclude the nonobjecting Party from later objecting to continued access by that Person for good
21
22

cause. If an objection is made, the Parties shall meet and confer via telephone or in person within

23 five (5) days following the objection and attempt in good faith to resolve the dispute informally.
24 If the dispute is not resolved, the Party objecting to the disclosure will have seven (7) days from
25 the date of the meet and confer to seek relief from the Court. The designated Person may continue
26
27

to have access to information that was provided to such Person prior to the date of the objection.
If a later objection is made, no further Protected Material shall be disclosed to the Person until the

28
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STIPULATED PROTECTIVE ORDER – PAGE 25

1 Court resolves the matter or the Producing Party withdraws its objection. Notwithstanding the
2 foregoing, if the Producing Party fails to move for a protective order within seven (7) business
3
4

days after the meet and confer, further Protected Material may thereafter be provided to the
Person.

5
6

13.

CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL
(a)

7

A Party shall not be obligated to challenge the propriety of any designation

8 of Discovery Material under this Order at the time the designation is made, and a failure to do so
9 shall not preclude a subsequent challenge thereto.
10
11

(b)

Any challenge to a designation of Discovery Material under this Order shall

be written, shall be served on outside counsel for the Producing Party, shall identify particularly

12
the documents or information that the Receiving Party contends should be differently designated,
13
14

and shall state the grounds for the objection. Thereafter, further protection of such material shall

15 be resolved in accordance with the following procedures:
(i)

16

The objecting Party shall have the burden of conferring either in

17 person, in writing, or by telephone with the Producing Party claiming protection (as well as any
18 other interested party) in a good faith effort to resolve the dispute. The Producing Party shall have
19

the burden of justifying the disputed designation;

20
(ii)

Failing agreement, the Receiving Party may bring a motion to the

21
22

Court for a ruling that the Discovery Material in question is not entitled to the status and

23 protection of the Producing Party’s designation. The Parties’ entry into this Order shall not
24 preclude or prejudice either Party from arguing for or against any designation, establish any
25 presumption that a particular designation is valid, or alter the burden of proof that would otherwise
26

apply in a dispute over discovery or disclosure of information;

27
28
05010.00001/5917454.2

STIPULATED PROTECTIVE ORDER – PAGE 26

(iii)

1

Notwithstanding any challenge to a designation, the Discovery

2 Material in question shall continue to be treated as designated under this Order until one of the
3
4

following occurs: (a) the Party who designated the Discovery Material in question withdraws such
designation in writing; or (b) the Court rules that the Discovery Material in question is not

5
6
7

entitled to the designation.
14.

SUBPOENAS OR COURT ORDERS
(a)

8

If at any time Protected Material is subpoenaed by any court, arbitral,

9 administrative, or legislative body, the Party to whom the subpoena or other request is directed
10 shall immediately give prompt written notice thereof to every Party who has produced such
11

Discovery Material and to its counsel and shall provide each such Party with an opportunity to

12
move for a protective order regarding the production of Protected Materials implicated by the
13
14
15

subpoena.
15.

FILING PROTECTED MATERIAL
(a)

16

Absent written permission from the Producing Party or a court Order

17 secured after appropriate notice to all interested persons, a Receiving Party may not file or disclose
18 in the public record any Protected Material.
19

(b)

Any Party is authorized under Civil Local Rule 79-5 to file under seal with

20
the Court any brief, document or materials that are designated as Protected Material under this
21
22

Order. However, nothing in this section shall in any way limit or detract from this Order’s

23 requirements as to Source Code.
24

16.

25
26
27

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
(a)

The inadvertent production by a Party of Discovery Material subject to the

attorney-client privilege, work-product protection, or any other applicable privilege or protection,
despite the Producing Party’s reasonable efforts to prescreen such Discovery Material prior to

28
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STIPULATED PROTECTIVE ORDER – PAGE 27

1 production, will not waive the applicable privilege and/or protection if a request for return of such
2 inadvertently produced Discovery Material is made promptly after the Producing Party learns of
3

its inadvertent production.

4

(b)

Upon a request from any Producing Party who has inadvertently produced

5
6
7

Discovery Material that it believes is privileged and/or protected, each Receiving Party shall
immediately return such Protected Material or Discovery Material and all copies to the Producing

8 Party, except for any pages containing privileged markings by the Receiving Party which shall
9 instead be destroyed and certified as such by the Receiving Party to the Producing Party.
10
11

(c)

Nothing herein shall prevent the Receiving Party from preparing a record for

its own use containing the date, author, addresses, and topic of the inadvertently produced Discovery

12
Material and such other information as is reasonably necessary to identify the Discovery Material
13
14
15

and describe its nature to the Court in any motion to compel production of the Discovery Material.
17.

INADVERTENT FAILURE TO DESIGNATE PROPERLY
(a)

16

The inadvertent failure by a Producing Party to designate Discovery

17 Material as Protected Material with one of the designations provided for under this Order shall not
18 waive any such designation provided that the Producing Party notifies all Receiving Parties that
19

such Discovery Material is protected under one of the categories of this Order within fourteen (14)

20
days of the Producing Party learning of the inadvertent failure to designate. The Producing Party
21
22

shall reproduce the Protected Material with the correct confidentiality designation within seven (7)

23 days upon its notification to the Receiving Parties. Upon receiving the Protected Material with the
24 correct confidentiality designation, the Receiving Parties shall return or securely destroy, at the
25 Producing Party’s option, all Discovery Material that was not designated properly.
26
27

(b)

A Receiving Party shall not be in breach of this Order for any use of such

Discovery Material before the Receiving Party receives such notice that such Discovery Material

28
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STIPULATED PROTECTIVE ORDER – PAGE 28

1 is protected under one of the categories of this Order, unless an objectively reasonable person
2 would have realized that the Discovery Material should have been appropriately designated with a
3
4

confidentiality designation under this Order. Once a Receiving Party has received notification of
the correct confidentiality designation for the Protected Material with the correct confidentiality

5
6
7

designation, the Receiving Party shall treat such Discovery Material (subject to the exception in
Paragraph 17(c) below) at the appropriately designated level pursuant to the terms of this Order.
(c)

8

Notwithstanding

the

above,

a

subsequent

designation

of

9 “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL
10 – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” shall apply on a going forward
11

basis and shall not disqualify anyone who reviewed “CONFIDENTIAL,” “CONFIDENTIAL –

12
ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
13
14

– SOURCE CODE” materials while the materials were not marked “CONFIDENTIAL –

15 ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY
16 – SOURCE CODE” from engaging in the activities set forth in Paragraph 6(b).
17

18.

18
19

INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER
(a)

In the event of a disclosure of any Discovery Material pursuant to this Order

to any person or persons not authorized to receive such disclosure under this Protective Order, the

20
Party responsible for having made such disclosure, and each Party with knowledge thereof, shall
21
22

immediately notify counsel for the Producing Party whose Discovery Material has been disclosed

23 and provide to such counsel all known relevant information concerning the nature and
24 circumstances of the disclosure. The responsible disclosing Party shall also promptly take all
25 reasonable measures to retrieve the improperly disclosed Discovery Material and to ensure that no
26

further or greater unauthorized disclosure and/or use thereof is made

27
28
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STIPULATED PROTECTIVE ORDER – PAGE 29

(b)

1

Unauthorized or inadvertent disclosure does not change the status of

2 Discovery Material or waive the right to hold the disclosed document or information as Protected.
3

19.

4

FINAL DISPOSITION
(a)

Not later than ninety (90) days after the Final Disposition of this case, each

5
6
7

Party shall return all Discovery Material of a Producing Party to the respective outside counsel of
the Producing Party or destroy such Material, at the option of the Producing Party. For purposes

8 of this Order, “Final Disposition” occurs after an order, mandate, or dismissal finally terminating
9 the above-captioned action with prejudice, including all appeals.
10
11

(b)

All Parties that have received any such Discovery Material shall certify in

writing that all such materials have been returned to the respective outside counsel of the

12
Producing Party or destroyed. Notwithstanding the provisions for return of Discovery Material,
13
14

outside counsel may retain one set of pleadings, correspondence and attorney and consultant work

15 product (but not document productions) for archival purposes, but must return any pleadings,
16 correspondence, and consultant work product that contain Source Code.
17

20.

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19

DISCOVERY FROM EXPERTS OR CONSULTANTS
(a)

Absent good cause, drafts of reports of testifying experts, and reports and

other written materials, including drafts, of consulting experts, shall not be discoverable.

20
(b)

Reports and materials exempt from discovery under the foregoing

21
22

Paragraph shall be treated as attorney work product for the purposes of this case and Protective

23 Order.
(c)

24

Testifying experts shall not be subject to discovery with respect to any draft

25 of his or her report(s) in this case. Draft reports, notes, or outlines for draft reports developed and
26

drafted by the testifying expert and/or his or her staff are also exempt from discovery.

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STIPULATED PROTECTIVE ORDER – PAGE 30

(d)

1

Discovery of materials provided to testifying experts shall be limited to

2 those materials, facts, consulting expert opinions, and other matters actually relied upon by the
3
4

testifying expert in forming his or her final report, trial, or deposition testimony or any opinion in
this case. No discovery can be taken from any non-testifying expert except to the extent that such

5
6
7

non-testifying expert has provided information, opinions, or other materials to a testifying expert
relied upon by that testifying expert in forming his or her final report(s), trial, and/or deposition

8 testimony or any opinion in this case.
9

(e)

No conversations or communications between counsel and any testifying or

10 consulting expert will be subject to discovery unless the conversations or communications are
11

relied upon by such experts in formulating opinions that are presented in reports or trial or

12
deposition testimony in this case.
13
(f)

14

Materials, communications, and other information exempt from discovery

15 under the foregoing Paragraphs [20(a)–(c)] shall be treated as attorney-work product for the
16 purposes of this case and Order.
17

(g)

Nothing in Protective Order, include Paragraphs [20(a)–(c)], shall alter or

18 change in any way the requirements in Paragraph 11 regarding Source Code, and Paragraph 11
19

shall control in the event of any conflict.

20
21.

MISCELLANEOUS

21
(a)

22

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

23 person to seek its modification by the Court in the future. By stipulating to this Order, the Parties
24 do not waive the right to argue that certain material may require additional or different
25 confidentiality protections than those set forth herein.
26
27

(b)

Termination of Matter and Retention of Jurisdiction. The Parties agree that

the terms of this Protective Order shall survive and remain in effect after the Final Determination

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STIPULATED PROTECTIVE ORDER – PAGE 31

1 of the above-captioned matter. The Court shall retain jurisdiction after Final Determination of this
2 matter to hear and resolve any disputes arising out of this Protective Order.
3
4

(c)

Successors. This Order shall be binding upon the Parties. This Order shall

also be binding upon the Parties’ attorneys, and their successors, executors, personal

5
6
7

representatives, administrators, heirs, legal representatives, assigns, subsidiaries, divisions,
employees, agents, retained consultants and experts, and any persons or organizations over which

8 they have direct control who received access to the Discovery Materials.
9

(d)

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

10 Protective Order, no Party waives any right it otherwise would have to object to disclosing or
11

producing any information or item. Similarly, no Party waives any right to object on any ground

12
to use in evidence of any of the material covered by this Protective Order. This Order shall not
13
14

constitute a waiver of the right of any Party to claim in this action or otherwise that any Discovery

15 Material, or any portion thereof, is privileged or otherwise non-discoverable, or is not admissible
16 in evidence in this action or any other proceeding.
17

(e)

Burdens of Proof. Notwithstanding anything to the contrary above, nothing

18 in this Protective Order shall be construed to change the burdens of proof or legal standards
19

applicable in disputes regarding whether particular Discovery Material is confidential, which level

20
of confidentiality is appropriate, whether disclosure should be restricted, and if so, what
21
22

restrictions should apply.
(f)

23

Modification by Court. This Order is subject to further court order based

24 upon public policy or other considerations, and the Court may modify this Order sua sponte in the
25 interests of justice. The United States District Court for the Northern District of California is
26

responsible for the interpretation and enforcement of this Order.

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STIPULATED PROTECTIVE ORDER – PAGE 32

All disputes concerning

1 Protected Material, however designated, produced under the protection of this Order shall be
2 resolved by the United States District Court for the Northern District of California.
3
4

(g)

Discovery Rules Remain Unchanged. Nothing herein shall alter or change

in any way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules for

5
6
7

the United States District Court for the Northern District of California, or the Court’s own orders.
Identification of any individual pursuant to this Protective Order does not make that individual

8 available for deposition or any other form of discovery outside of the restrictions and procedures
9 of the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for
10 the Northern District of California, or the Court’s own orders.
11
12 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
13
QUINN EMANUEL URQUHART &
14 SULLIVAN, LLP
15

/s/ Amar L. Thakur
16 Harold A. Barza
Amar L. Thakur
17 Vincent Pollmeier
18 Attorneys for Plaintiff,
19 Aylus Networks, Inc.

DLA PIPER LLP (US)

/s/ Christine K. Corbett
MARK D. FOWLER
CHRISTINE K. CORBETT
ROBERT BUERGI
ROBERT WILLIAMS
ERIK R. FUEHRER
JONATHAN HICKS
Attorneys for Defendant,
Apple Inc.

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22
23
24
25
26
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STIPULATED PROTECTIVE ORDER – PAGE 33

S

Edward M. Chen
United States District Judge
hen
rd M. C
ge Edwa
Jud

4

RT

ER

7

A

H

6

FO

NO

5

N

F
D IS T IC T O
R

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9
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05010.00001/5917454.2

R NIA

By:

ERED

O ORD
IT IS S

LI

3 Dated:

5/8/14

UNIT
ED

2

RT
U
O

S DISTRICT
TE
C
1 PURSUANT TO STIPULATION, IT IS SO ORDERED.
TA

STIPULATED PROTECTIVE ORDER – PAGE 34

C

1
2

ATTESTATION CLAUSE
I, William O. Cooper, am the ECF User whose identification and password are being used

3 to file this Stipulated Protective Order. In compliance with Civil Rule 5-1(i)(3), I hereby attest
4 that Christine Corbett has concurred in this filing.
5
6 Dated: May 8, 2014

QUINN EMANUEL URQUHART &
SULLIVAN, LLP

7
8
9

By: /s/ William O. Cooper
WILLIAM O. COOPER
Attorneys for Plaintiff,
Aylus Networks, Inc

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11
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STIPULATED PROTECTIVE ORDER – PAGE 35

1

EXHIBIT A

2
3

, acknowledge and declare that I have received a

I,

4 copy of the Protective Order (“Order”) in Aylus Networks, Inc. v. Apple Inc., United States
5 District Court, Northern District of California, San Francisco Division, Civil Action No. 3:136

cv-4700-EMC. Having read and understood the terms of the Order, I agree to be bound by the

7
terms of the Order and consent to the jurisdiction of said Court for the purpose of any
8
9
10
11

proceeding to enforce the terms of the Order.
Name of individual:
Present occupation/job description:

12
13
14

Name of Company or Firm:

15

Address:

16
Dated:
17
18
[Signature]
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STIPULATED PROTECTIVE ORDER – PAGE 36