Petzilla, Inc. v. Anser Innovation LLC

Filing 33

STIPULATION AND ORDER re 32 STIPULATION WITH PROPOSED ORDER [PROPOSED] STIPULATED PROTECTIVE ORDER filed by Anser Innovation LLC, PROTECTIVE ORDER. Signed by Judge Edward M. Chen on 6/25/14. (bpfS, COURT STAFF) (Filed on 6/25/2014)

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NICOLAS S. GIKKAS (SBN 189452)
THE GIKKAS LAW FIRM
530 Lytton Avenue
2nd Floor
Palo Alto, California 94301
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
KIEUN SUNG-IKEGAMI (SBN 211762)
JON IKEGAMI (SBN 211766)
INNOVATION COUNSEL LLP
2880 Lakeside Drive
Suite 200
Santa Clara, California 95054
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
[e-mail]
Attorneys for Plaintiff
PETZILLA, INC.
MICHAEL F. HEAFEY (State Bar No. 153499)
[e-mail]
GEORGE R. MORRIS (State Bar No. 249930)
[e-mail]
King & Spalding LLP
601 S. California Street
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: 1 650 422 6800
GRANT D. FAIRBAIRN (admitted pro hac vice)
[e-mail]
Fredrikson Byron, P.A.
200 South Sixth Street
Suite 4000
Minneapolis, MN 55402-1425
Telephone: [phone]
Facsimile: 1 612 492 7077

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Attorneys for Defendant
ANSER INNOVATION LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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PETZILLA, INC. a Delaware Corporation, d/b/a
Petzila

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Plaintiff,

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Case No. 3:14-cv-01354-EMC
[PROPOSED] STIPULATED
PROTECTIVE ORDER

v.
ANSER INNOVATION LLC, a Minnesota
limited liability company,
Defendant.

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WHEREAS, in the course of this litigation disclosure may be sought of information that a

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party or non-party regards as being of a confidential, trade secret, and/or proprietary nature;
WHEREAS, the Parties seek entry of a mutual Protective Order pursuant to Rule 26(c) of

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the Federal Rules of Civil Procedure, and the Court having approved such order;

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IT IS HEREBY ORDERED that this Order for the Protection of Confidential Information

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(“Protective Order”) shall govern the handling of all information, testimony, things or documents

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filed with the Court or produced or given (either by a party or non-party) as part of discovery in

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this action (“Covered Matter”).

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1.

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

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

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

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

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

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

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

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the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below,

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

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seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that

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will be applied when a party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
Civil Procedure 26(c).
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Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well

as their support staff).
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Designating Party: a Party or Non-Party that designates information or items that it

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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2.5

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

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

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

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responses to discovery in this matter.

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2.6

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

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

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

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

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of a Party’s competitor.

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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

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

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restrictive means.

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Counsel does not include Outside Counsel of Record or any other outside counsel.
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House Counsel: attorneys who are employees of a party to this action. House

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

entity not named as a Party to this action.
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Outside Counsel of Record: attorneys who are not employees of a party to this

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

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on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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Party: any party to this action, including all of its officers, directors, employees,

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

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

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

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storing, or retrieving data in any form or medium) and their employees and subcontractors.
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Protected Material: any Disclosure or Discovery Material that is designated as

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

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

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

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

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

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

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

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

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

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

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

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

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

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4.

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

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DURATION

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this action, with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
including the time limits for filing any motions or applications for extension of time pursuant to
applicable law.
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DESIGNATING PROTECTED MATERIAL
5.1

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

Non-Party that designates information or items for protection under this Order must take care to
limit any such designation to specific material that qualifies under the appropriate standards. To the
extent it is practical to do so, the Designating Party must designate for protection only those parts
of material, documents, items, or oral or written communications that qualify – so that other
portions of the material, documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
encumber or retard the case development process or to impose unnecessary expenses and burdens
on other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it designated for
protection do not qualify for protection at all or do not qualify for the level of protection initially
asserted, that Designating Party must promptly notify all other parties that it is withdrawing the
mistaken designation.

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5.2

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

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

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

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

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

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

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ONLY” to each page that contains protected material. If only a portion or portions of the material

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

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

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portion, the level of protection being asserted.

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

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

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

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

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

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

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected Material.

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If only a portion or portions of the material on a page qualifies for protection, the Producing Party

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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ATTORNEYS’ EYES ONLY.”

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During any deposition, hearing, or other proceeding taken in this action at which

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

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or discussed, any party or non-party may exclude from attendance during such disclosure or

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discussion any person not authorized under Section 7.2 and Section 7.3, respectively. The use of a

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

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

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

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

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

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

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

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

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

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

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

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

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

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” If only a portion or portions of

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

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identify the protected portion(s) and specify the level of protection being asserted.
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Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

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

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

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

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in accordance with the provisions of this Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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

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

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

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original designation is disclosed.

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6.2

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

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

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

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

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

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

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

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

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

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

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designation. A Challenging Party may proceed to the next stage of the challenge process only if it

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has engaged in this meet and confer process first or establishes that the Designating Party is

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unwilling to participate in the meet and confer process in a timely manner.

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6.3

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

intervention, the Challenging Party shall file and serve a motion to defeat confidentiality under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of

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the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer

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process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied

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by a competent declaration affirming that the movant has complied with the meet and confer

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requirements imposed in the preceding paragraph. Failure by the Challenging Party to make such a

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motion including the required declaration within 21 days (or 14 days, if applicable) shall

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automatically waive the right to challenge the confidentiality designation for each challenged

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designation. In addition, the Designating Party may file a motion to retain a confidentiality

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

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of a deposition transcript or any portions thereof. Any motion brought pursuant to this provision

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must be accompanied by a competent declaration affirming that the movant has complied with the

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meet and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating

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

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

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

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

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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

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

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been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and in
a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

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

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

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information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

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employees of said Outside Counsel of Record;
(b) the officers, directors, and employees (including House Counsel) of the

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

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the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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

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to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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

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

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

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

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

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

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

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Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian

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

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record;
(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

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

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(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a), below, have been

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followed;

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(c) the court and its personnel;

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

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

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(e) the author or recipient of a document containing the information or a custodian

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or other person who otherwise possessed or knew the information.
7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” Information or Items to Experts.

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

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

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

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to paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the

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full name of the Expert and his/her professional address, (2) attaches a copy of the Expert’s current

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resume, (3) identifies the Expert’s current employer(s), (4) identifies each person or entity from

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whom the Expert has received compensation or funding for work in his or her areas of expertise or

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to whom the expert has provided professional services, including in connection with a litigation, at

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any time during the preceding five years,1 and (5) identifies (by name and number of the case,

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

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expert testimony, including through a declaration, report, or testimony at a deposition or trial,

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during the preceding five years.

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

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

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

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Expert unless, within 14 days of delivering the request, the Party receives a written objection from

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the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
(c) A Party that receives a timely written objection must meet and confer with the

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

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

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

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with Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any such

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motion must describe the circumstances with specificity, set forth in detail the reasons why the

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disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure would

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

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

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

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

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disclosure.

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

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

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

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8.

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

compels disclosure of any information or items designated in this action as “CONFIDENTIAL” or
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall include
a copy of the subpoena or court order;
(b) promptly notify in writing the party who caused the subpoena or order to issue in
the other litigation that some or all of the material covered by the subpoena or order is subject to
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

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Designating Party whose Protected Material may be affected.2
If the Designating Party timely seeks a protective order, the Party served with the

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subpoena or court order shall not produce any information designated in this action as

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

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

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the Designating Party’s permission. The Designating Party shall bear the burden and expense of

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

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

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directive from another court.

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9.

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(a)

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ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with this
litigation is protected by the remedies and relief provided by this Order. Nothing in these
provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b)

with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
1. promptly notify in writing the Requesting Party and the Non-Party that some
or all of the information requested is subject to a confidentiality agreement with a Non-Party;

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

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

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

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

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

2. promptly provide the Non-Party with a copy of the Stipulated Protective
Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
the information requested; and

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

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The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the
Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or
order issued.

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(c)

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

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

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

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

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

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determination by the court.3 Absent a court order to the contrary, the Non-Party shall bear the

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

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10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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

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

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

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

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

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

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

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11.

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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
If information is produced in discovery that is subject to a claim of privilege or of

protection as trial-preparation material, the party making the claim may notify any party that
received the information of the claim and the basis for it. After being notified, a party must
promptly return or destroy the specified information and any copies it has and may not sequester,
use or disclose the information until the claim is resolved. This includes a restriction against
presenting the information to the court for a determination of the claim. This provision is not
intended to modify whatever procedure may be established in an e-discovery order that provides
for production without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e),
insofar as the parties reach an agreement on the effect of disclosure of a communication or

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The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford
the Non-Party an opportunity to protect its confidentiality interests in this court.

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

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incorporate their agreement in the stipulated protective order submitted to the court.

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12.

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MISCELLANEOUS
12.1

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

seek its modification by the court in the future.
12.2

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

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

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

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

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this Protective Order.
12.3

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

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

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

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected Material at

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issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing

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that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled

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to protection under the law. If a Receiving Party's request to file Protected Material under seal

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pursuant to Civil Local Rule 79-5(e) is denied by the court, then the Receiving Party may file the

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Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise

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instructed by the court.

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12.4

Objections to Discovery Not Covered. This Protective Order is not intended to

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address discovery objections to produce, answer, or respond on the grounds of attorney-client

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privilege or work product immunity, or to preclude either party from seeking further relief or

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protective orders from the Court as may be appropriate under the Federal Rules of Civil Procedure.

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12.5

Agreement Pending Entry. The Parties agree to be bound by the terms of this

Protective Order pending its entry by the Court.

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13.
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FINAL DISPOSITION
Within 90 days after the final disposition of this action and all appeals, as set forth

in Section 4, each Receiving Party must return all Protected Material to the Producing Party or
destroy such material. As used in this subdivision, “all Protected Material” includes all copies,
abstracts, compilations, summaries, and any other format reproducing or capturing any of the
Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party
must submit a written certification to the Producing Party (and, if not the same person or entity, to
the Designating Party) by the 90-day deadline that (1) identifies (by category, where appropriate)
all the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party
has not retained any copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain Protected Material.
Any such archival copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION).

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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DATED: June 23, 2014

__/s/ Nicolas S. Gikkas__________________
NICOLAS S. GIKKAS (SBN 189452)
THE GIKKAS LAW FIRM
530 Lytton Avenue
2nd Floor
Palo Alto, California 94301
Phone: [phone]
Facsimile: [phone]
Email: [e-mail]
KIEUN SUNG-IKEGAMI (SBN 211762)
JON IKEGAMI (SBN 211766)
INNOVATION COUNSEL LLP
2880 Lakeside Drive
Suite 200
Santa Clara, California 95054
Phone: [phone]
Facsimile: [phone]

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Email: [e-mail]
[e-mail]

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DATED: June 23, 2014

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__/s/ Grant D. Fairbairn__________________
MICHAEL F. HEAFEY (State Bar No. 153499)
[e-mail]
GEORGE R. MORRIS (State Bar No. 249930)
[e-mail]
King & Spalding LLP
601 S. California Street
Palo Alto, CA 94304
Telephone: [phone]
Facsimile: 1 650 422 6800

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GRANT D. FAIRBAIRN (admitted pro hac vice)
[e-mail]
Fredrikson Byron, P.A.
200 South Sixth Street
Suite 4000
Minneapolis, MN 55402-1425
Telephone: [phone]
Facsimile: 1 612 492 7077

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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S

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dward
Judge E

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EDWARD M. CHEN
United States District JudgeDERED
OR

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6/25/14

UNIT
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DATED:

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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
Petzilla, Inc. v. Anser Innovation LLC
U.S. District Court for the Northern District of California
Case No. 3:14-cv-01354-EMC

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I, _____________________________ [print or type full name], of

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

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

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States District Court for the Northern District of California in the above-captioned matter. I agree

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to comply with and to be bound by all the terms of this Stipulated Protective Order and I

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

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

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

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except in strict compliance with the provisions of this Order.

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

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

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

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Date: _________________________________

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Printed name: ______________________________
[printed name]

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Signature: __________________________________
[signature]

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