Adkins et al v. Apple Inc et al

Filing 125

STIPULATED PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS. Signed by Judge William H. Orrick on 01/27/2015. (jmdS, COURT STAFF) (Filed on 1/27/2015)

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PENELOPE A. PREOVOLOS (SBN 87607)
[e-mail]
MARGARET E. MAYO (SBN 259685)
[e-mail]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522
PURVI G. PATEL (SBN 270702)
[e-mail]
MORRISON & FOERSTER LLP
707 Wilshire Boulevard
Los Angeles, California 90017-3543
Telephone: [phone]
Facsimile: 213.892.5454
Attorneys for Defendants
APPLE INC., APPLECARE SERVICE
COMPANY, INC., and APPLE CSC INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PATRICIA SUE ADKINS, JENNIFER
GALINDO, and FABRIENNE ENGLISH,
on behalf of themselves and all others
similarly situated,
Plaintiffs,
v.
APPLE INC., APPLECARE SERVICE
COMPANY, INC., and APPLE CSC INC.,
Defendants.

Case No.

3:14-cv-01619-WHO

STIPULATED PROTECTIVE
ORDER REGARDING THE
DISCLOSURE AND USE OF
DISCOVERY MATERIALS
Courtroom 2, 17th Floor
Judge William H. Orrick
Complaint Filed: November 4, 2013
Transfer to N.D. Cal.: April 3, 2014
Trial Date: August 15, 2016

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STIPULATED PROTECTIVE ORDER RE DISCLOSURE AND USE OF DISCOVERY MATERIALS
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Plaintiffs Patricia Sue Adkins, Jennifer Galindo, and Fabrienne English (“Plaintiffs”), and
Defendants Apple Inc., AppleCare Service Company, Inc., and Apple CSC Inc. (“Defendants”)
anticipate that documents, testimony, or information containing or reflecting confidential,
proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed
or produced during the course of discovery, initial disclosures, and supplemental disclosures
in this case and request that the Court enter this Order setting forth the conditions for treating,
obtaining, and using such information.
Pursuant to Federal Rule of Civil Procedure 26(c), the Court finds good cause for the
following Agreed Protective Order Regarding the Disclosure and Use of Discovery Materials
(“Order” or “Protective Order”).
1.

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
any other purpose whatsoever.
(b)

The Parties acknowledge that this 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 13, below, that this Stipulated Protective Order does not entitle them to file
confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be
followed and the standards that will be applied when a party seeks permission from the court to
file material under seal. If it comes to a Designating Party’s attention that designated material
does not qualify for protection at all, or does not qualify for the level of protection initially
asserted, the Designating Party must promptly notify all other Parties that it is withdrawing or
changing the designation.
(c)

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
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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.
2.

DEFINITIONS
(a)

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

non-party, regardless of the medium or manner generated, stored, or maintained (including,
among other things, testimony, transcripts, or tangible things) that are produced, disclosed, or
generated in connection with discovery or Rule 26(a) disclosures in this case, as well as any
information copied or extracted therefrom, and any copies, excerpts, summaries, or compilations
thereof.
(b)

“Outside Counsel” means (i) outside counsel who appear on the pleadings

as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is
necessary to disclose the information for this litigation.
(c)

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

employees, consultants, retained experts, and outside counsel and their support staffs.
(d)

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

any Discovery Material in this case.
(e)

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

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” as
provided for in this Order, as well as any information copied or extracted therefrom, and any
copies, excerpts, summaries, or compilations thereof. Protected Material shall not include:

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(i) advertising materials that have been actually published or publicly disseminated; and
(ii) materials that show on their face they have been disseminated to the public.
(f)

“Designating Party” means any Party or non-party that designates any

Discovery Material as Protected Material.
(g)

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

a Producing Party.
3.

COMPUTATION OF TIME

The computation of any period of time prescribed or allowed by this Order shall be
governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 6.
4.

SCOPE
(a)

The protections conferred by this Order cover not only Discovery Material

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

Nothing in this Protective Order shall prevent or restrict a Producing

Party’s own disclosure or use of its own Protected Material for any purpose, and nothing in this
Order shall preclude any Producing Party from showing its Protected Material to an individual
who prepared the Protected Material.
(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
and the Designating Party or by order of the Court.
(d)

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

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

The Parties agree that this Protective Order does not address the production

of source code (including computer code, scripts, assembly, object code, source code listings and
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descriptions of source code, object code listings and descriptions of object code, and Hardware
Description Language (HDL) or Register Transfer Level (RTL) files that describe the hardware
design of any ASIC or other chip). The Parties further agree that, at this time, Plaintiffs do not
anticipate propounding any discovery specifically requesting the production of Apple’s source
code, and Apple agrees that none of its responses to Plaintiffs’ discovery served as of the date of
this Order requires the production of source code. To the extent Apple determines that its
responses to any discovery subsequently served by Plaintiffs would reveal or require the
production of source code, Apple shall promptly provide notice of same to Plaintiffs. To the
extent Plaintiffs specifically request in discovery for Apple to reveal or produce Apple’s source
code, Plaintiffs shall promptly provide notice of same to Apple. Within fourteen (14) days of
either such notice, the Parties shall meet and confer regarding the negotiation of a protective order
governing the production of source code. If the Parties are unable to reach agreement as to an
acceptable protective order, Apple shall move the Court for protective order addressing the
potential production of its source code and materials related to its source code.
5.

DURATION

Even after final disposition of this litigation, the confidentiality obligations imposed by
this 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.
6.

ACCESS TO AND USE OF PROTECTED MATERIAL
(a)

Basic Principles. All Protected Material shall be used solely for this case

or any related appellate proceeding, and not for any other purpose whatsoever, including without
limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue

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proceedings, or any business or competitive purpose or function. Protected Material shall not be
distributed, disclosed, or made available to anyone except as expressly provided in this Order.
(b)

Secure Storage. 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.
(c)

Legal Advice Based on Protected Material. Nothing in this Protective

Order shall be construed to prevent counsel from advising their clients with respect to this case
based in whole or in part upon Protected Materials, provided counsel does not disclose the
Protected Material itself except as provided in this Order.
(d)

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

Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or
lawfully known to the Receiving Party independent of the Producing Party; (iii) previously
produced, disclosed and/or provided by the Producing Party to the Receiving Party or a nonparty without an obligation of confidentiality and not by inadvertence or mistake; (iv) with the
consent of the Producing Party; or (v) pursuant to order of the Court.
7.

DESIGNATING PROTECTED MATERIAL
(a)

Available Designations. Any Party may designate Discovery Material with

any of the following designations, provided that it meets the requirements for such designations
as provided for herein: “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY.”
(b)

Written Discovery and Documents and Tangible Things. Written

discovery, documents (which include “electronically stored information,” as that phrase is used in
Federal Rule of Procedure 34), and tangible things that meet the requirements for the
confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
appropriate designation on every page of the written material prior to production. For digital files
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being produced, the Designating Party may mark each viewable page or image with the
appropriate designation, and mark the medium, container, and/or communication in which the
digital files were contained. In the event that original documents are produced for inspection, the
original documents shall be presumed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” during the inspection and re-designated, as appropriate during the copying process.
(c)

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
contains “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
material, or 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 proceeding, or for provision in printed form to an expert or consultant preapproved pursuant to Paragraph 10, the party printing the electronic files or documents shall affix
a legend to the printed document corresponding to the designation of the Designating Party and
including the production number and designation associated with the native file. No one shall
seek to use in this litigation a .tiff, .pdf, or other image format version of a document produced in
native file format without first (1) providing a copy of the image format version to the Producing
Party so that the Producing Party can review the image to ensure that no information has been
altered, and (2) obtaining the consent of the Producing Party, which consent shall not be
unreasonably withheld.
(d)

Depositions and Testimony. Parties or testifying persons or entities may

designate depositions and other testimony with the appropriate designation by indicating on the
record at the time the testimony is given or by sending written notice of how portions of the
transcript of the testimony is designated within thirty (30) days of receipt of the transcript of the
testimony. If no indication on the record is made, all information disclosed during a deposition
shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the time
within which it may be appropriately designated as provided for herein has passed. Any Party
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that wishes to disclose the transcript, or information contained therein, may provide written notice
of its intent to treat the transcript as non-confidential, after which time, any Party that wants to
maintain any portion of the transcript as confidential must designate the confidential portions
within fourteen (14) days, or else the transcript may be treated as non-confidential. Any
Protected Material that is used in the taking of a deposition shall remain subject to the provisions
of this Protective Order, along with the transcript pages of the deposition testimony dealing with
such Protected Material. In such cases the court reporter shall be informed of this Protective
Order and shall be required to operate in a manner consistent with this Protective Order. In the
event the deposition is videotaped, the original and all copies of the videotape shall be marked by
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 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 parties.” Counsel for any Producing Party or Designating Party shall have
the right to exclude from oral depositions, other than the deponent, deponent’s counsel, the
reporter and videographer (if any), any person who is not authorized by this Protective Order
to receive or access Protected Material based on the designation of such Protected Material.
Such right of exclusion shall be applicable only during periods of examination or testimony
regarding such Protected Material.
8.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
(a)

A Party may designate Discovery Material as “CONFIDENTIAL” if it

contains or reflects confidential, proprietary, and/or commercially sensitive information.
(b)

Unless otherwise ordered by the Court, Discovery Material designated as

“CONFIDENTIAL” may be disclosed only to the following:
(i)

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

paralegals and staff, and any copying or clerical litigation support services working at the

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direction of such counsel, paralegals, and staff, provided that each such person has agreed to be
bound by the provisions of the Protective Order by signing a copy of Exhibit A-1;
(ii)

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

are officers or employees of the Receiving Party, who 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
necessary for this case, provided that each such person has agreed to be bound by the provisions
of the Protective Order by signing a copy of Exhibit A-1;
(iii)

Any outside expert or consultant retained by the Receiving Party to

assist in this action, provided that disclosure is only to the extent necessary to perform such
work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions
of the Protective Order by signing a copy of Exhibit A-2; (b) such expert or consultant is 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 a
Party; and (c) such expert or consultant otherwise complies with the requirements set forth in
Paragraph 10.
(iv)

Court reporters, stenographers and videographers retained to record

testimony taken in this action;
(v)

The Court, jury, and court personnel;

(vi)

Graphics, translation, design, litigation and discovery support,

and/or trial consulting personnel, having first agreed to be bound by the provisions of the
Protective Order by signing a copy of Exhibit A-1;
(vii)

Mock jurors who have signed an undertaking or agreement agreeing

not to publicly disclose Protected Material and to keep any information concerning Protected
Material confidential, and having first agreed to be bound by the provisions of the Protective
Order by signing a copy of Exhibit A-1;

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(viii) Any mediator who is assigned to hear this matter, and his or her
staff, subject to their agreement to maintain confidentiality to the same degree as required by this
Protective Order; and
(ix)

Any other person with the prior written consent of the Producing

Party and the Designating Party.
9.

DISCOVERY MATERIAL DESIGNATED AS “HIGHLY CONFIDENTIAL
–ATTORNEYS’ EYES ONLY”
(a)

A Party may designate Discovery Material as “HIGHLY CONFIDENTIAL

– ATTORNEYS’ EYES ONLY” if it contains or reflects information that is extremely
confidential and/or sensitive in nature and the Party reasonably believes that the disclosure of
such Discovery Material is likely to cause economic harm or significant competitive disadvantage
to the Party. The Parties agree that the following information, if non-public, shall be presumed to
merit the “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation: trade
secrets, pricing information, financial data, sales information, sales or marketing forecasts or
plans, business plans, sales or marketing strategy, product development information, engineering
documents, testing documents, employee information, and other non-public information of
similar competitive and business sensitivity.
(b)

Unless otherwise ordered by the Court, Discovery Material designated as

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:
(i)

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

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) (“a counsel’s activities, association, and relationship
with a client that are such as to involve counsel’s advice and participation in any or all of the
client’s decisions (pricing, product design, etc.) made in light of similar or corresponding
information about a competitor”), on behalf of a Party or a competitor of a Party, and such
Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation support
services working at the direction of such counsel, paralegals, and staff;
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(ii)

assist in this action, provided that disclosure is only to the extent necessary to perform such
work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions
of the Protective Order by signing a copy of Exhibit A-2; (b) such expert or consultant is 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 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)
(“a counsel’s activities, association, and relationship with a client that are such as to involve
counsel’s advice and participation in any or all of the client’s decisions made in light of
similar or corresponding information about a competitor”), on behalf of a Party or a
competitor of a Party; and (d) such expert or consultant otherwise complies with the
requirements set forth in Paragraph 10;
(iii)

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Court reporters, stenographers and videographers retained to record

testimony taken in this action;
(iv)

The Court, jury, and court personnel;

(v)

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Any outside expert or consultant retained by the Receiving Party to

Graphics, translation, design, litigation and discovery support,

and/or trial consulting personnel, having first agreed to be bound by the provisions of the
Protective Order by signing a copy of Exhibit A-1;
(vi)

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

staff, subject to their agreement to maintain confidentiality to the same degree as required by this
Protective Order; and
(vii)

Any other person with the prior written consent of the Producing

Party and the Designating Party.
10.

PROCEDURES FOR DISCLOSURE
(a)

General Procedure for Disclosure of “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:
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(i)

Before any information or item designated “CONFIDENTIAL,” or

substance or summary thereof, shall be disclosed to the persons or entities identified in
subparagraphs (ii), (iv), (v), (vi), (viii), and (ix) of paragraph 8(b) above, the Parties are hereby
ordered to tender a copy of this Stipulation and Protective Order to each such person and witness
in order that each such entity or person to whom such disclosure of “CONFIDENTIAL”
information or item is made shall be on notice and fully informed that the existence and substance
of the Stipulation and Protective Order is, and is intended to be, equally binding upon it, him or
her. Before any information or item designated “CONFIDENTIAL,” or substance or summary
thereof, is disclosed to any such person, each such person shall sign and abide by the terms of the
“Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order,” attached
hereto as Exhibit A-1, or, if the person to whom the “CONFIDENTIAL” information or item is to
be disclosed is an expert, that person shall sign and abide by the terms of the “Expert/Consultant
Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order,” attached
hereto as Exhibit A-2, and shall otherwise comply with the requirements of Paragraph 10(c). The
person to whom the “CONFIDENTIAL” information or item is disclosed shall not give, show, or
otherwise divulge any of the “CONFIDENTIAL” information or item to any entity or person
except as specifically provided for by this Stipulation and Protective Order.
(ii)

Before any information or item designated “HIGHLY

CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or substance or summary thereof, shall be
disclosed to the persons or entities identified in sub-paragraphs (iii), (iv), (v), (vii) and (viii) of
paragraph 9(b) above, the Parties are hereby ordered to tender a copy of this Stipulation and
Protective Order to each such person and witness in order that each such entity or person to whom
such disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information or
item is made shall be on notice and fully informed that the existence and substance of the
Stipulation and Protective Order is, and is intended to be, equally binding upon it, him or her.
Before any information or item designated “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
ONLY,” or substance or summary thereof, is disclosed to any such person, each such person shall
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sign and abide by the terms of the “Acknowledgment of Confidentiality and Agreement to Be
Bound by Protective Order,” attached hereto as Exhibit A-1, or, if the person to whom the
“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information or item is to be
disclosed is an expert, that person shall sign and abide by the terms of the “Expert/Consultant
Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order,” attached
hereto as Exhibit A-2, and shall otherwise comply with the requirements of Paragraph 10(c). The
person to whom the “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information
or item is disclosed shall not give, show, or otherwise divulge any of the “HIGHLY
CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information to any entity or person except as
specifically provided for by this Stipulation and Protective Order.
(b)

Procedure for Disclosure of “CONFIDENTIAL” Information or Items to

Mock Jurors:
(i)

A Receiving Party may disclose to mock jurors materials prepared

by its outside counsel that are derived from information or items designated “CONFIDENTIAL”
(but not materials that are derived from information or items designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY”), so long as the derivative materials do not
include the as produced information itself. Before providing such material to a mock juror, the
Receiving Party must, in compliance with Paragraph 8(b)(vii) above, tender a copy of this
Stipulation and Protective Order to each mock juror in order that each person to whom such
disclosure is made shall be on notice and fully informed that the existence and substance of the
Stipulation and Protective Order is, and is intended to be, equally binding upon it, him or her, as
well as upon the Parties and their counsel. Before any materials prepared by outside counsel that
are derived from information or items designated “CONFIDENTIAL” are disclosed to a mock
juror, each such person shall sign and abide by the terms of the “Acknowledgment of
Confidentiality and Agreement to Be Bound by Protective Order,” attached hereto as Exhibit A-1.
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of the information contained therein to any entity or person except as specifically provided for by
this Stipulation and Protective Order.
(ii)

The Parties agree that this Protective Order does not address the

disclosure to mock jurors of materials prepared by the Receiving Party’s outside counsel that are
derived from information or items designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY.” To the extent the Receiving Party determines that disclosure to mock jurors of
materials prepared by its outside counsel that are derived from information or items designated
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” becomes necessary, such Party
shall promptly provide notice to the opposing Party. Within fourteen (14) days of such notice, the
Parties shall meet and confer regarding the negotiation of a protective order governing the
disclosure of materials that are derived from information or items designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to mock jurors. If the Parties are unable to
reach agreement as to an acceptable protective order, the Parties shall submit their dispute to the
Court, in compliance with Court rules and standing orders.
(c)

Procedure for Disclosure of “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts:
(i)

Before any “CONFIDENTIAL” OR “HIGHLY CONFIDENTIAL-

ATTORNEYS’ EYES ONLY” information, or substance or summary thereof, shall be disclosed
to an Expert, the Expert shall sign and abide by the terms of the “Expert/Consultant
Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order,” attached
as Exhibit A-2, confirming that he or she is not presently employed by, and within the one year
prior to the date of retention as an Expert in these proceedings has not been employed by, has not
provided any form of consulting services to, and has not been and does not anticipate becoming
an officer or director or otherwise be involved with decision-making for, any companies or
entities engaged in the manufacture, sale, or distribution of products that compete with Apple’s
iPhone, iPad, iPod, and Mac products. During the pendency of and for a period of two (2) years
after the final resolution of this action, including all appeals, the Party seeking to disclose
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Protected Material shall immediately (upon learning of same) provide written notice of any
change with respect to the Expert’s involvement in the areas at issue with respect to accepting
employment or consulting work for a company manufacturing , selling, or distributing products
that compete with Apple’s iPhone, iPad, iPod, and Mac products.
(ii)

Within fourteen (14) days of receipt of the written notice of the

change with respect to the Expert’s involvement in the areas at issue (e.g., she or he is
contemplating accepting employment or consulting for any companies or entities engaged in the
manufacture, sale, or distribution of products that compete with Apple’s iPhone, iPad, iPod, and
Mac products) referenced in subparagraph (i) of Paragraph 10(c), the Producing Party or Parties
may object in writing to the Expert for good cause. In the absence of an objection at the end of
the fourteen (14) day period, the Expert shall be deemed permitted to continue as expert and
approved under this Protective Order. There shall be no further disclosure of Protected Material
to the Expert prior to expiration of this fourteen (14) day period. If the Producing Party objects to
disclosure to the Expert within such fourteen (14) day period, the Parties shall meet and confer
via telephone or in person within seven (7) 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 continuation of the Expert in this case, will have seven (7) days from the date of the meet and
confer to seek relief from the Court barring the Expert from further work and from access to the
Highly Confidential documents. If relief is not sought from the Court within that time, the
objection shall be deemed withdrawn. If relief is sought, designated materials shall not be
disclosed to the Expert in question until the Court resolves the objection.
(iii)

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

objectively reasonable concern that the Expert will, advertently or inadvertently, use or disclose
Discovery Materials in a way or ways that are inconsistent with the provisions contained in this
Order.
(iv)

An initial failure to object to an Expert under this Paragraph 10

shall not preclude the non-objecting Party from later objecting to continued access by that Expert
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for good cause. If an objection is made, the Parties shall meet and confer via telephone or in
person within seven (7) days following the objection and attempt in good faith to resolve the
dispute informally. If the dispute is not resolved, the Party objecting to the disclosure will have
seven (7) days from the date of the meet and confer to seek relief from the Court. The designated
Expert may continue to have access to information that was provided to such Expert prior to the
date of the objection. If a later objection is made, no further Protected Material shall be disclosed
to the Expert until the Court resolves the matter or the Producing Party withdraws its objection.
Notwithstanding the foregoing, if the Producing Party fails to move for a protective order within
seven (7) business days after the meet and confer, further Protected Material may thereafter be
provided to the Expert.
(d)

The Party’s Counsel who discloses “CONFIDENTIAL” or “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Material shall be responsible for assuring
compliance with the terms of this Stipulation and Protective Order with respect to persons to
whom such Protected Material is disclosed and shall obtain and retain the originals of the
“Acknowledgment of Confidentiality and Agreement to Be Bound by Protective Order” and
“Expert/Consultant Acknowledgment of Confidentiality and Agreement to Be Bound by
Protective Order” (if such execution was required by terms of this Stipulation and Protective
Order).
11.

CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL
(a)

Any Party or Non-Party may challenge a designation of confidentiality at

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

The Challenging Party shall initiate the dispute resolution process 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
recite that the challenge to confidentiality is being made in accordance with this specific
paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good
faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of
communication are not sufficient) within 14 days of the date of service of notice. In conferring,
the Challenging Party must explain the basis for its belief that the confidentiality designation was
not proper and must give the Designating Party an opportunity to review the designated material,
to reconsider the circumstances, and, if no change in designation is offered, to explain the basis
for the chosen designation. A Challenging Party may proceed to the next stage of the challenge
process only if it has engaged in this meet and confer process first or establishes that the
Designating Party is unwilling to participate in the meet and confer process in a timely manner.
(c)

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

Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7
(and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice
of challenge or within 14 days of the parties agreeing that the meet and confer process will not
resolve their dispute, whichever is later. Each party reserves the right, in the event that the other
party makes multiple challenges, to seek relief from the Court to shift the burden to file a motion
challenging the designation to the Challenging Party. The parties agree to meet and confer before
seeking such relief. If the burden to file a motion shifts, the burden of persuasion will remain on
the Designating Party.
Each such motion must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed in the preceding paragraph.
Failure by the Designating Party to make such a motion including the required declaration within
21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for
each challenged designation. In addition, the Challenging Party may file a motion challenging a
confidentiality designation at any time if there is good cause for doing so, including a challenge to
the designation of a deposition transcript or any portions thereof. Any motion brought pursuant
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to this provision must be accompanied by a competent declaration affirming that the movant has
complied with the meet and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
unnecessary expenses and burdens on other parties) may expose the Challenging Party to
sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
file a motion to retain confidentiality as described above, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the Designating Party’s
designation until the court rules on the challenge
12.

SUBPOENAS OR COURT ORDERS
(a)

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

administrative, or legislative body, the Party to whom the subpoena or other request is directed
shall immediately give prompt written notice thereof to every Party who has produced such
Discovery Material and to its counsel and shall provide each such Party with an opportunity to
move for a protective order regarding the production of Protected Materials implicated by the
subpoena.
13.

FILING PROTECTED MATERIAL
(a)

Without written permission from the Designating Party or a court order

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

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Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule
79-5(e)(2) unless otherwise instructed by the court.
14.

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
production, will not waive the applicable privilege and/or protection if a request for return of such
inadvertently produced Discovery Material is made promptly after the Producing Party learns of
its inadvertent production.
(b)

Upon a request from any Producing Party who has inadvertently produced

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
Party, except for any pages containing privileged markings by the Receiving Party which shall
instead be destroyed and certified as such by the Receiving Party to the Producing Party.
(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 Material and such other information as is reasonably necessary to identify the
Discovery Material and describe its nature to the Court in any motion to compel production of the
Discovery Material.
15.

INADVERTENT FAILURE TO DESIGNATE PROPERLY
(a)

The inadvertent failure by a Producing Party to designate Discovery

Material as Protected Material with one of the designations provided for under this Order shall
not waive any such designation provided that the Producing Party notifies all Receiving Parties
that such Discovery Material is protected under one of the categories of this Order within fourteen
(14) days of the Producing Party learning of the inadvertent failure to designate. The Producing
Party shall reproduce the Protected Material with the correct confidentiality designation within
seven (7) days upon its notification to the Receiving Parties. Upon receiving the Protected
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Material with the correct confidentiality designation, the Receiving Parties shall return or securely
destroy, at the Producing Party’s option, all Discovery Material that was not designated properly.
(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
is protected under one of the categories of this Order, unless an objectively reasonable person
would have realized that the Discovery Material should have been appropriately designated with a
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
designation, the Receiving Party shall treat such Discovery Material (subject to the exception in
Paragraph 15(c)) at the appropriately designated level pursuant to the terms of this Order.
(c)

Notwithstanding the above, a subsequent designation of

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall
apply on a going forward basis and shall not disqualify anyone who reviewed
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” materials
while the materials were not marked “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” from engaging in the activities set forth in this Order.
16.

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 Party responsible for having made such disclosure, and each Party with knowledge
thereof, shall immediately notify counsel for the Producing Party and the Designating Party
whose Discovery Material has been disclosed and provide to such counsel all known relevant
information concerning the nature and circumstances of the disclosure. The responsible
disclosing Party shall also promptly take all reasonable measures to retrieve the improperly
disclosed Discovery Material and to ensure that no further or greater unauthorized disclosure
and/or use thereof is made

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(b)

Unauthorized or inadvertent disclosure does not change the status of

Discovery Material or waive the right to hold the disclosed document or information as Protected.
17.

FINAL DISPOSITION
(a)

Not later than ninety (90) days after the final disposition of this case, as

defined in Paragraph 5 above, each 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.
(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
Producing Party or destroyed. Notwithstanding the provisions for return of Discovery Material,
outside counsel may retain one set of pleadings, correspondence, and attorney and consultant
work product (but not document productions) for archival purposes.
18.

MISCELLANEOUS
(a)

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

person to seek its modification by the Court in the future. By stipulating to this Order, the Parties
do not waive the right to argue that certain material may require additional or different
confidentiality protections than those set forth herein.
(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 Disposition of
the above-captioned matter. The Court shall retain jurisdiction after Final Disposition of this
matter to hear and resolve any disputes arising out of this Protective Order.
(c)

Successors. This Order shall be binding upon the Parties hereto, their

attorneys, and their successors, executors, personal representatives, administrators, heirs, legal
representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and
experts, and any persons or organizations over which they have direct control.
(d)

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

Protective Order, no Party waives any right it otherwise would have to object to disclosing or
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producing any information or item. Similarly, no Party waives any right to object on any ground
to use in evidence of any of the material covered by this Protective Order. This Order shall not
constitute a waiver of the right of any Party to claim in this action or otherwise that any
Discovery Material, or any portion thereof, is privileged or otherwise non-discoverable, or is not
admissible in evidence in this action or any other proceeding.
(e)

Burdens of Proof. Notwithstanding anything to the contrary above,

nothing in this Protective Order shall be construed to change the burdens of proof or legal
standards applicable in disputes regarding whether particular Discovery Material is confidential,
which level of confidentiality is appropriate, whether disclosure should be restricted, and if so,
what restrictions should apply.
(f)

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

upon public policy or other considerations, and the Court may modify this Order sua sponte in the
interests of justice. The United States District Court for the Northern District of California is
responsible for the interpretation and enforcement of this Order. All disputes concerning
Protected Material, however designated, produced under the protection of this Order shall be
resolved by the United States District Court for the Northern District of California.
(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
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
available for deposition or any other form of discovery outside of the restrictions and procedures
of the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for
the Northern District of California, or the Court’s own orders.

Dated: January 23, 2015

By: /s/ Renee Kennedy
Renee Kennedy
Attorneys for Plaintiffs
Patricia Sue Adkins, Jennifer Galindo,
and Fabrienne English

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Dated: January 23, 2015

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MORRISON & FOERSTER LLP
By: /s/ Purvi G. Patel
Purvi G. Patel

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Attorneys for Defendants
Apple Inc., AppleCare Service
Company, Inc., and Apple CSC Inc.

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IT IS SO ORDERED.

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Dated: January 27, 2015

HON. WILLIAM H. ORRICK
U.S. District Court Judge

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EXHIBIT A-1

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ACKNOWLEDGMENT OF CONFIDENTIALITY
AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I,

, acknowledge and declare that I have received a

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copy of the Protective Order (“Order”) in Adkins, et al. v. Apple Inc., et al., United States District

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Court, District of Northern California, San Francisco Division, Civil Action No. 3:14-cv-01619-

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WHO. Having read and understood the terms of the Order, I agree to be bound by the terms of

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the Order and consent to the jurisdiction of said Court for the purpose of any proceeding to

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enforce the terms of the Order. I further agree I shall not at any time, either during the pendency

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of these proceedings or after conclusion of these proceedings, use or divulge any of the

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CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION made available to me

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pursuant to the Order.

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Name of individual:
Present occupation/job description:

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Name of Company or Firm:

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Address:

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Dated:

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[Signature]

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EXHIBIT A-1
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EXHIBIT A-2

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EXPERT/CONSULTANT ACKNOWLEDGMENT OF CONFIDENTIALITY
AND AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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I,

, acknowledge and declare that I have received a

copy of the Protective Order (“Order”) in Adkins, et al. v. Apple Inc., et al., United States District
Court, District of Northern California, San Francisco Division, Civil Action No. 3:14-cv-01619WHO. Having read and understood the terms of the Order, I agree to be bound by the terms of
the Order and consent to the jurisdiction of said Court for the purpose of any proceeding to
enforce the terms of the Order.
By signing below, I hereby confirm that I am not presently employed by, and within the
one year prior to the date of retention as an Expert in these proceedings have not been employed
by, have not provided any form of consulting services to, and have not been and do not anticipate
to be an officer or director or otherwise been involved with decision-making for, any companies
or entities engaged in the manufacture, sale, or distribution of products that compete with Apple’s
iPhone, iPad, iPod, and Mac products, and further agree that: (1) during the pendency of my
retention as an Expert in this case, should I be contemplating or accept employment or consulting
work or other officer, director or decision-making position with any such competing companies, I
will notify the Party or Counsel for whom I am employed in this matter, twenty-one (21) days
prior to commencing any such employment, work or position; and (2) that I shall not at any time,
either during the pendency of these proceedings or after conclusion of these proceedings, use or
divulge any of the CONFIDENTIAL or HIGHLY CONFIDENTIAL INFORMATION –
ATTORNEYS’ EYES ONLY made available to me pursuant to the Order.
Name of individual:

Present occupation/job description:

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EXHIBIT A-2
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Name of Company or Firm:

Address:
Dated:

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[Signature]

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ECF ATTESTATION
I, Purvi G. Patel, am the ECF user whose ID and password are being used to file this
[Proposed] Stipulation Protective Order Re Disclosure and Use of Discovery Materials. In
compliance with Civil Local Rule 5-1(i)(3), I hereby attest that Renee Kennedy has concurred in
this filing.

Dated: January 23, 2015

MORRISON & FOERSTER LLP

By:

/s/ Purvi G. Patel
Purvi G. Patel
Attorneys for Defendants
Apple Inc., AppleCare Service
Company, Inc., and Apple CSC Inc.

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