dpiX LLC v. Yieldboost Tech Inc et al

Filing 72

ORDER APPROVING STIPULATED PROTECTIVE ORDER re 71 STIPULATION WITH PROPOSED ORDER Errata to Stipulated Protective Order filed by dpiX LLC, 70 STIPULATION WITH PROPOSED ORDER FOR PROTECTIVE ORDER filed by dpiX LLC. Signed by Judge Jon S. Tigar on September 11, 2015. (wsn, COURT STAFF) (Filed on 9/11/2015)

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IN THE UNITED STATES DISTRICT COURT 1 NORTHERN DISTRICT OF CALIFORNIA 2 SAN FRANCISCO DIVISION 3 4 5 DPIX LLC, a Delaware limited liability company, Plaintiff, 6 7 8 9 vs. No. 3:14-CV-05382-JST ORDER APPROVING STIPULATED PROTECTIVE ORDER Re: ECF Nos. 70, 71 YIELDBOOST TECH, INC., a California corporation, and KYO YOUNG CHUNG, an individual, Defendants. 10 11 12 1. PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of 13 14 confidential, proprietary, or private information for which special protection from public disclosure 15 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 16 the Parties hereby stipulate to and petition the court to enter the following Stipulated Protective 17 Order. The Parties acknowledge that this Stipulated Protective Order does not confer blanket 18 protections on all disclosures or responses to discovery and that the protection it affords from public 19 disclosure and use extends only to the limited information or items that are entitled to confidential 20 treatment under the applicable legal principles. The Parties further acknowledge, as set forth in 21 Section 14.4, below, that this Stipulated Protective Order does not entitle them to file confidential 22 information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and 23 the standards that will be applied when a Party seeks permission from the court to file material 24 under seal. 25 2. 26 27 DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Stipulated Protective Order. 28 -1ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 2 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 3 Civil Procedure 26(c). 4 5 6 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY 7 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter and (1) who has no 8 involvement in competitive decision-making, (2) to whom disclosure is reasonably necessary for 9 this litigation, (3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 10 11 and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed. 2.5 Designating Party: a Party or Non-Party that designates information or items that it 12 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY 13 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE 14 COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. 15 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium 16 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 17 transcripts, and tangible things), that are produced or generated in disclosures or responses to 18 discovery in this matter. 19 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 20 the litigation who (1) has been retained by a Party or its Outside Counsel of Record to serve as a 21 disclosed expert witness in this action, (2) is not a past or current employee of a Party or of a Party’s 22 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or 23 of a Party’s competitor. Expert does not include experts or consultants who have not been retained 24 by Outside Counsel of Record to be a disclosed Expert, who have not been disclosed as an Expert, 25 and/or who will not be a disclosed Expert in this action. 26 27 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or 28 -2ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 Non-Party would create a substantial risk of serious harm that could not be avoided by less 2 restrictive means. 3 2.9 “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” Information 4 or Items: extremely sensitive “Confidential Information or Items,” including without limitation 5 proprietary or trade secret information, disclosure of which to another Party or Non-Party would 6 create a substantial risk of serious harm that could not be avoided by less restrictive means. 7 2.10 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely 8 sensitive “Confidential Information or Items” representing computer code and associated comments 9 and revision histories, formulas, engineering specifications, or schematics that define or otherwise 10 describe in detail the algorithms or structure of software or hardware designs, disclosure of which to 11 another Party or Non-Party would create a substantial risk of serious harm that could not be avoided 12 by less restrictive means. 13 14 15 16 17 2.11 House Counsel: attorneys who are employees of a Party to this action. House Counsel does not include Outside Counsel of Record. 2.12 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 2.13 Outside Counsel of Record: attorneys who are not employees of a Party to this action 18 but are retained to represent or advise a Party to this action and have appeared in this action on 19 behalf of that Party or, for the purpose of this action, are affiliated with a law firm which has 20 appeared on behalf of that Party. Outside Counsel of Record does not include House Counsel or 21 Designated House Counsel. 22 23 24 25 26 27 2.14 Party: any party to this action, including all of its officers, directors, employees, consultants, retained Experts, and Outside Counsel of Record (and their support staffs). 2.15 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.16 Professional Vendors: persons or entities that provide Outside Counsel of Record litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or 28 -3ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 demonstrations, and organizing, storing, or retrieving data in any form or medium) and their 2 employees and subcontractors. 2.17 3 Protected Material: any Disclosure or Discovery Material that is designated as 4 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or as 5 “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” or as “HIGHLY 6 CONFIDENTIAL – SOURCE CODE.” 2.18 7 Receiving Party: a Party that receives Disclosure or Discovery Material from a 8 Producing Party. 9 3. SCOPE The protections conferred by this Stipulated Protective Order cover not only Protected 10 11 Material (as defined above), but also (1) any information copied or extracted from Protected 12 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 13 testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected 14 Material. However, the protections conferred by this Stipulated Protective Order do not cover the 15 following information: (a) any information that is in the public domain at the time of disclosure to a 16 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 17 result of publication not involving a violation of this Stipulated Protective Order, including 18 becoming part of the public record through trial or otherwise; and (b) any information known to the 19 Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from 20 a source who obtained the information lawfully and under no obligation of confidentiality to the 21 Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement 22 or order. 23 4. 24 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 25 Stipulated Protective Order shall remain in effect until a Designating Party agrees otherwise in 26 writing or a court order otherwise directs. Final disposition shall be deemed to be the later of (1) 27 dismissal of all claims and defenses in this action, with or without prejudice; and (2) final judgment 28 -4ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of 2 this action, including the time limits for filing any motions or applications for extension of time 3 pursuant to applicable law. 4 /// 5 5. 6 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 7 Non-Party that designates information or items for protection under this Stipulated Protective Order 8 must take care to limit any such designation to specific material that qualifies under the appropriate 9 standards. To the extent it is practical to do so, the Designating Party must designate for protection 10 only those parts of material, documents, items, or oral or written communications that qualify – so 11 that other portions of the material, documents, items, or communications for which protection is not 12 warranted are not swept unjustifiably within the ambit of this Stipulated Protective Order. 13 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 14 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 15 encumber or retard the case development process or to impose unnecessary expenses and burdens on 16 other Parties) expose the Designating Party to sanctions. 17 If it comes to a Designating Party’s attention that information or items that it designated for 18 protection do not qualify for protection at all or do not qualify for the level of protection initially 19 asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the 20 mistaken designation. 21 5.2 Manner and Timing of Designations. Except as otherwise provided in this Stipulated 22 Protective Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or 23 ordered, Disclosure or Discovery Material that qualifies for protection under this Stipulated 24 Protective Order must be clearly so designated before the material is disclosed or produced. 25 26 27 Designation in conformity with this Stipulated Protective Order requires: (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 28 -5ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 2 ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” or “HIGHLY 3 CONFIDENTIAL – SOURCE CODE” to each page that contains protected material. If only a 4 portion or portions of the material on a page qualifies for protection, the Producing Party also must 5 clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and 6 must specify, for each portion, the level of protection being asserted. 7 A Party or Non-Party that makes original documents or materials available for inspection 8 need not designate them for protection until after the Receiving Party has indicated which material it 9 would like copied and produced. During the inspection and before the designation, all of the 10 material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – OUTSIDE 11 COUNSEL EYES ONLY.” After the Receiving Party has identified the documents it wants copied 12 and produced, the Producing Party must determine which documents, or portions thereof, qualify for 13 protection under this Stipulated Protective Order. Then, before producing the specified documents, 14 the Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 15 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE 16 COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE) to each page that 17 contains Protected Material. If only a portion or portions of the material on a page qualifies for 18 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 19 appropriate markings in the margins) and must specify, for each portion, the level of protection 20 being asserted. 21 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 22 Designating Party identify on the record, before the close of the deposition, hearing, or other 23 proceeding, all protected testimony and specify the level of protection being asserted. When it is 24 impractical to identify separately each portion of testimony that is entitled to protection and it 25 appears that substantial portions of the testimony may qualify for protection, the Designating Party 26 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right 27 to have up to 21 days to identify the specific portions of the testimony as to which protection is 28 -6ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 sought and to specify the level of protection being asserted. Only those portions of the testimony 2 that are appropriately designated for protection within the 21 days shall be covered by the provisions 3 of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition 4 or up to 21 days afterwards if that period is properly invoked, that the entire transcript shall be 5 treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or 6 “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” 7 Parties shall give the other Parties notice if they reasonably expect a deposition, hearing or 8 other proceeding to include Protected Material so that the other Parties can ensure that only 9 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 10 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 11 shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 12 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES 13 ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” 14 Transcripts containing Protected Material shall have an obvious legend on the title page that 15 the transcript contains Protected Material, and the title page shall be followed by a list of all pages 16 (including line numbers as appropriate) that have been designated as Protected Material and the 17 level of protection being asserted by the Designating Party. The Designating Party shall inform the 18 court reporter of these requirements. Any transcript that is prepared before the expiration of a 21- 19 day period for designation shall be treated during that period as if it had been designated “HIGHLY 20 CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” in its entirety unless otherwise agreed. 21 After the expiration of that period, the transcript shall be treated only as actually designated. 22 (c) for information produced in some form other than documentary and for any other tangible items, 23 that the Producing Party affix in a prominent place on the exterior of the container or containers in 24 which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE 26 COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. If only a portion 27 28 -7ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 or portions of the information or item warrant protection, the Producing Party, to the extent 2 practicable, shall identify the protected portion(s) and specify the level of protection being asserted. 5.3 3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 4 designate qualified information or items does not, standing alone, waive the Designating Party’s 5 right to secure protection under this Stipulated Protective Order for such material. Upon timely 6 correction of a designation, the Receiving Party must make reasonable efforts to assure that the 7 material is treated in accordance with the provisions of this Stipulated Protective Order. 8 /// 9 6. 10 CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 11 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 12 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, 13 or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a 14 confidentiality designation by electing not to mount a challenge promptly after the original 15 designation is disclosed. 16 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 17 by providing written notice of each designation it is challenging and describing the basis for each 18 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 19 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 20 of the Protective Order. The Parties shall attempt to resolve each challenge in good faith and must 21 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 22 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 23 Party must explain the basis for its belief that the confidentiality designation was not proper and 24 must give the Designating Party an opportunity to review the designated material, to reconsider the 25 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 26 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 27 28 -8ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 has engaged in this meet and confer process first or establishes that the Designating Party is 2 unwilling to participate in the meet and confer process in a timely manner. 6.3 3 Judicial Intervention. If the Parties cannot resolve a challenge without court 4 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 5 Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 6 initial notice of challenge or within 14 days of the Parties agreeing that the meet and confer process 7 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 8 competent declaration affirming that the movant has complied with the meet and confer 9 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 10 motion including the required declaration within 21 days (or 14 days, if applicable) shall 11 automatically waive the confidentiality designation for each challenged designation. In addition, the 12 Challenging Party may file a motion challenging a confidentiality designation at any time if there is 13 good cause for doing so, including a challenge to the designation of a deposition transcript or any 14 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 15 competent declaration affirming that the movant has complied with the meet and confer 16 requirements imposed by the preceding paragraph. The burden of persuasion in any such challenge proceeding shall be on the Designating 17 18 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 19 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 20 Unless the Designating Party has waived the confidentiality designation by failing to file a motion to 21 retain confidentiality as described above, all Parties shall continue to afford the material in question 22 the level of protection to which it is entitled under the Producing Party’s designation until the court 23 rules on the challenge. 24 7. 25 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 26 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 27 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 28 -9ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 the categories of persons and under the conditions described in this Stipulated Protective Order. 2 When the litigation has been terminated, a Receiving Party must comply with the provisions of 3 section 15 below (FINAL DISPOSITION). 4 Protected Material must be stored and maintained by a Receiving Party at a location and in a 5 secure manner that ensures that access is limited to the persons authorized under this Stipulated 6 Protective Order. Electronic Protected Material digitally stored for retrieval by the Receiving Party 7 shall be stored in a manner that requires password protection for access thereto. 8 9 10 11 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 information or item designated “CONFIDENTIAL” only to: (a) (i) the Receiving Party’s Outside Counsel of Record in this action, as well as (ii) 12 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 13 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 14 Bound” that is attached hereto as Exhibit A; 15 (b) the officers, directors, and employees (including House Counsel) of the Receiving 16 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 18 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 19 reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement 20 to Be Bound” (Exhibit A); 21 (d) the court and its personnel; 22 (e) court reporters and their staff, professional jury or trial consultants, and 23 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 24 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 25 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 26 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 27 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 28 -10ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 2 bound by the court reporter and may not be disclosed to anyone except as permitted under this 3 Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or 4 5 6 other person who otherwise possessed or knew the information. 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 7 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 8 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 9 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 10 (a) (i) the Receiving Party’s Outside Counsel of Record in this action, as well as (ii) 11 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 12 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 13 Bound” that is attached hereto as Exhibit A; 14 (b) Designated House Counsel of the Receiving Party (1) who has no involvement in 15 competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3) 16 who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to 17 whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed; 18 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for 19 this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 20 A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed; 21 (d) the court and its personnel; 22 (e) court reporters and their staff, professional jury or trial consultants, and 23 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 24 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 25 26 (f) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 27 28 -11ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 7.4 Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” 2 or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise 3 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 4 disclose any information or item designated “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL 5 EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only to: 6 (a) (i) the Receiving Party’s Outside Counsel of Record in this action, as well as (ii) 7 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 8 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 9 Bound” that is attached hereto as Exhibit A; 10 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for 11 this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 12 A), and (3) as to whom the procedures set forth in paragraph 7.5(a)(2), below, have been followed; 13 (c) the court and its personnel; 14 (d) court reporters and their staff, professional jury or trial consultants, and 15 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 16 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 17 18 19 (e) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.5 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – 20 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES 21 ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items to Designated 22 House Counsel or Experts. 23 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the 24 Designating Party, a Party that seeks to disclose to Designated House Counsel any information or 25 item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 26 pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets 27 forth the full name of the Designated House Counsel and the city and state of his or her residence, 28 -12ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 and (2) describes the Designated House Counsel’s current and reasonably foreseeable future primary 2 job duties and responsibilities in sufficient detail to determine if such Designated House Counsel is 3 involved, or may become involved, in any competitive decision-making.1 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the 4 5 Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any 6 information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 7 ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” or “HIGHLY 8 CONFIDENTIAL – SOURCE CODE”] pursuant to paragraph 7.3(c) or 7.4(b) first must make a 9 written request to the Designating Party that (1) identifies the general categories of “HIGHLY 10 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE 11 COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information that 12 the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the 13 Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s 14 current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person or entity 15 from whom the Expert has received compensation or funding for work in his or her areas of 16 expertise or to whom the Expert has provided professional services, including in connection with a 17 litigation, at any time during the preceding five years,2 and (6) identifies (by name and number of 18 the case, filing date, and location of court) any litigation in connection with which the Expert has 19 offered expert testimony, including through a declaration, report, or testimony at a deposition or 20 trial, during the preceding five years. 21 (b) A Party that makes a request and provides the information specified in the 22 preceding respective paragraphs may disclose the subject Protected Material to the identified 23 24 25 26 27 28 1 It may be appropriate in certain circumstances to require any Designated House Counsel who receives “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information pursuant to this Order to disclose any relevant changes in job duties or responsibilities prior to final disposition of the litigation to allow the Designating Party to evaluate any later-arising competitive decisionmaking responsibilities. 2 If the Expert believes any of this information is subject to a confidentiality obligation to a thirdparty, 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. -13ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 Designated House Counsel or Expert, as the case may be, unless, within 14 days of delivering the 2 request, the Party receives a written objection from the Designating Party. Any such objection must 3 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 4 5 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement 6 within seven days of the written objection. If no agreement is reached, the Party seeking to make the 7 disclosure to Designated House Counsel or the Expert, as the case may be, may file a motion as 8 provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking 9 permission from the court to do so. Any such motion must describe the circumstances with 10 specificity, set forth in detail the reasons why the disclosure to Designated House Counsel or the 11 Expert, as the case may be, is reasonably necessary, assess the risk of harm that the disclosure 12 would entail, and suggest any additional means that could be used to reduce that risk. In addition, 13 any such motion must be accompanied by a competent declaration describing the Parties’ efforts to 14 resolve the matter by agreement (i.e., the extent and the content of the meet and confer discussions) 15 and setting forth the reasons advanced by the Designating Party for its refusal to approve the 16 disclosure. In any such proceeding, the Party opposing disclosure to Designated House Counsel or the 17 18 Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under 19 the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to 20 its Designated House Counsel or Expert. 21 8. PROSECUTION BAR 22 Absent written consent from the Producing Party, any individual who reviews technical 23 24 25 materials designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved in the prosecution of 26 patents or patent applications concerning the subject matter of the technical document that is not 27 publicly known or otherwise available, and the patent asserted in this action and any patent or 28 -14ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 application claiming priority to or otherwise related to the patent asserted in this action, before any 2 foreign or domestic agency, including the United States Patent and Trademark Office (“the Patent 3 Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, 4 amending, advising, or otherwise affecting the scope or maintenance of patent claims.3 To avoid any 5 doubt, “prosecution” as used in this paragraph does not include representing the patent owner or a 6 challenger or any other party in a challenge to the validity of the patent-in-suit before a domestic or 7 foreign agency (including, but not limited to, a reissue protest, ex parte reexamination or inter 8 partes review), so long as such representation does not involve the drafting or amendment of claims. 9 This Prosecution Bar shall begin when said “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 10 ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” or “HIGHLY 11 CONFIDENTIAL – SOURCE CODE” information is first reviewed by the affected individual and 12 shall end two (2) years after final termination of this action.4 13 9. SOURCE CODE (a) 14 To the extent production of source code becomes necessary in this case, a 15 Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” if 16 it comprises or includes confidential, proprietary or trade secret source code. (b) 17 Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE 18 CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – 19 OUTSIDE COUNSEL EYES ONLY” information including the Prosecution Bar set forth in 20 Paragraph 8, and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL – 21 OUTSIDE COUNSEL EYES ONLY” information may be disclosed, as set forth in Paragraphs 7.4 22 and 7.5, with the exception of Designated House Counsel. 23 24 25 26 27 28 3 4 Prosecution includes, for example, original prosecution, reissue and reexamination proceedings. Alternative: It may be appropriate for the Prosecution Bar to apply only to individuals who receive access to another Party’s “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –OUTSIDE COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” technical or source code information pursuant to this Order, such as under circumstances where one or more Parties is not expected to produce “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” information that is technical in nature or “HIGHLY CONFIDENTIAL – SOURCE CODE” information. -15ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST (c) 1 Any source code produced in discovery shall be made available for inspection 2 in a format and with tools through which it could be reasonably reviewed and searched during 3 normal business hours or other mutually agreeable times at a mutually agreed-upon location that is 4 reasonably convenient for the Receiving Party and any Experts to whom the source code may be 5 disclosed. The source code shall be made available for inspection on a secured computer in a 6 secured room without Internet access or network access to other computers, and the Receiving Party 7 shall not copy, remove, or otherwise transfer any portion of the source code onto any recordable 8 media or recordable device. The Producing Party may only visually monitor the activities of the 9 Receiving Party’s representatives during any source code review, but only to ensure that there is no 10 unauthorized recording, copying, or transmission of the source code.5 (d) 11 The Receiving Party may request paper copies of limited portions of source 12 code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or 13 other papers, or for deposition or trial, but shall not request paper copies for the purposes of 14 reviewing the source code other than electronically as set forth in paragraph (c) in the first instance. 15 The Producing Party shall provide all such source code in paper form including bates numbers and 16 the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing Party may challenge the 17 amount of source code requested in hard copy form pursuant to the dispute resolution procedure and 18 timeframes set forth in Paragraph 6 whereby the Producing Party is the “Challenging Party” and the 19 Receiving Party is the “Designating Party” for purposes of dispute resolution. (e) 20 The Receiving Party shall maintain a record of any individual who has 21 inspected any portion of the source code in electronic or paper form. The Receiving Party shall 22 maintain all paper copies of any printed portions of the source code in a secured, locked area. The 23 Receiving Party shall not create any electronic or other images of the paper copies and shall not 24 convert any of the information contained in the paper copies into any electronic format, except as 25 provided herein. The Receiving Party shall only make additional paper or electronic copies if such 26 27 5 The Receiving Party shall keep a log indicating the names of any individuals inspecting the source code and date and time of each such individual’s initial inspection, and the names of any individuals to whom paper copies of portions of source code are provided. 28 -16ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 additional copies are (1) necessary to prepare court filings, pleadings, or other papers (including a 2 testifying Expert’s expert report), (2) necessary for deposition, or (3) otherwise necessary for the 3 preparation of its case. Any paper copies used during a deposition shall be retrieved by the 4 Producing Party at the end of each day and must not be given to or left with a court reporter or any 5 other unauthorized individual. 6 7 8 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 9 If a Party is served with a subpoena or a court order issued in other litigation that compels 10 11 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 12 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – 13 OUTSIDE COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that 14 Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a 15 16 copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in 17 18 the other litigation that some or all of the material covered by the subpoena or order is subject to this 19 Stipulated Protective Order. Such notification shall include a copy of this Stipulated Protective 20 Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the 21 22 Designating Party whose Protected Material may be affected.6 23 If the Designating Party timely seeks a protective order, the Party served with the subpoena or court 24 order shall not produce any information designated in this action as “CONFIDENTIAL” or 25 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – 26 27 28 6 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. -17ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 OUTSIDE COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” before 2 a determination by the court from which the subpoena or order issued, unless the Party has obtained 3 the Designating Party’s permission. The Designating Party shall bear the burden and expense of 4 seeking protection in that court of its confidential material – and nothing in these provisions should 5 be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 6 directive from another court. 7 /// 8 11. 9 10 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Stipulated Protective Order are applicable to information 11 produced by a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY 12 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE 13 COUNSEL EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such information 14 produced by Non-Parties in connection with this litigation is protected by the remedies and relief 15 provided by this Stipulated Protective Order. Nothing in these provisions should be construed as 16 prohibiting a Non-Party from seeking additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to produce a 18 Non-Party’s confidential information in its possession, and the Party is subject to an agreement with 19 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 20 21 or all of the information requested is subject to a confidentiality agreement with a Non-Party; 2. promptly provide the Non-Party with a copy of the Stipulated Protective 22 23 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the 24 information requested; and 3. make the information requested available for inspection by the Non-Party. 25 26 (c) If the Non-Party fails to object or seek a protective order from this court 27 within 14 days of receiving the notice and accompanying information, the Receiving Party may 28 -18ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 produce the Non-Party’s confidential information responsive to the discovery request. If the Non- 2 Party timely seeks a protective order, the Receiving Party shall not produce any information in its 3 possession or control that is subject to the confidentiality agreement with the Non-Party before a 4 determination by the court.7 Absent a court order to the contrary, the Non-Party shall bear the 5 burden and expense of seeking protection in this court of its Protected Material. 6 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 7 8 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 9 the Receiving Party must immediately (a) notify in writing the Designating Party of the 10 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 11 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 12 terms of this Stipulated Protective Order, and (d) request such person or persons to execute the 13 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 14 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 15 MATERIAL 16 When a Producing Party gives notice to Receiving Parties that certain inadvertently 17 produced material is subject to a claim of privilege or other protection, the obligations of the 18 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B).8 If information 19 produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, 20 21 22 23 24 25 26 27 28 7 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. 8 Alternative: The Parties may agree that the recipient of an inadvertent production may not “sequester” or in any way use the document(s) pending resolution of a challenge to the claim of privilege or other protection to the extent it would be otherwise allowed by Federal Rule of Civil Procedure 26(b)(5)(B) as amended in 2006. This could include a restriction against “presenting” the document(s) to the court to challenge the privilege claim as may otherwise be allowed under Rule 26(b)(5)(B) subject to ethical obligations. An alternate provision could state: “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.” -19ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 the Party making the claim may notify any Party that received the information of the claim and the 2 basis for it. After being notified, a Party must promptly return, sequester, or destroy the specified 3 information and any copies it has; must not use or disclose the information until the claim is 4 resolved; must take reasonable steps to retrieve the information if the Party disclosed it before being 5 notified; and may promptly present the information to the court under seal for a determination of the 6 claim. This provision is not intended to modify whatever procedure may be established in an e- 7 discovery order that provides for production without prior privilege review. Pursuant to Federal 8 Rule of Evidence 502(d) and (e), insofar as the Parties reach an agreement on the effect of 9 disclosure of a communication or information covered by the attorney-client privilege or work 10 product protection, the Parties may incorporate their agreement in the stipulated protective order 11 submitted to the court. 12 14. 13 14 15 MISCELLANEOUS 14.1 Right to Further Relief. Nothing in this Stipulated Protective Order abridges the right of any person to seek its modification by the court in the future. 14.2 Right to Assert Other Objections. By stipulating to the entry of this Stipulated 16 Protective Order no Party waives any right it otherwise would have to object to disclosing or 17 producing any information or item on any ground not addressed in this Stipulated Protective Order. 18 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 19 material covered by this Protective Order. 20 14.3 [Intentionally Left Blank] 21 14.4 Filing Protected Material. Without written permission from the Designating Party or 22 a court order secured after appropriate notice to all interested persons, a Party may not file in the 23 public record in this action any Protected Material. A Party that seeks to file under seal any 24 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 25 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 26 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing 27 that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled 28 -20ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 to protection under the law. If a Receiving Party's request to file Protected Material under seal 2 pursuant to Civil Local Rule 79-5(e) is denied by the court, then the Receiving Party may file the 3 Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise 4 instructed by the court. 5 15. FINAL DISPOSITION 6 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 7 Receiving Party must return all Protected Material to the Producing Party or destroy such material in 8 a nonrecoverable manner. As used in this subdivision, “all Protected Material” includes all copies, 9 abstracts, compilations, summaries, and any other format reproducing or capturing any of the 10 Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party 11 must submit a written certification to the Producing Party (and, if not the same person or entity, to 12 the Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 13 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 14 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 15 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 16 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 17 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 18 product, and consultant and expert work product, even if such materials contain Protected Material. 19 Any such archival copies that contain or constitute Protected Material remain subject to this 20 Protective Order as set forth in Section 4 (DURATION). 21 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. HOGE, FENTON, JONES AND APPEL, INC. 22 23 24 25 26 27 DATED: ________________________ ___/Stephanie O. Sparks/________________ Stephanie O. Sparks Shella Deen Crystal N. Riggins Justine M. Cannon Attorneys for Plaintiff and Counter-Defendant dpiX LLC 28 -21ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 PREBEG, FAUCETT & ABBOT PLLC 2 3 DATED: ________________________ 4 5 6 ____/Matthew J. M. Prebeg/_______________ Matthew J. M. Prebeg, Ph.D Matthew S. Compton, Jr. Stephen W. Abbott Attorneys for Defendant and Counterclaimant Yieldboost Tech, Inc., and Defendant Kyo Young Chung 7 8 SUSMAN GODFREY L.L.P. 9 10 DATED: ________________________ 11 12 13 ____/Kalpana Srinivasan/__________________ Kalpana Srinivasan Max L. Tribble, Jr. Attorneys for Defendant and Counterclaimant Yieldboost Tech, Inc., and Defendant Kyo Young Chung 14 15 PURSUANT TO STIPULATION, IT IS SO ORDERED. 16 17 DATED: September 11, 2015 _____________________________________ Honorable Jon S. Tigar United States District Court Judge 18 19 20 21 22 23 24 25 26 27 28 -22ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, _____________________________ [print or type full name], of _________________ 3 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on [date] in the case of dpiX LLC v. Yieldboost Tech, Inc., et al., 7 Case No. 3:14-cv-05382-JST, in the United States District Court for the Northern District of 8 California, San Francisco Division. I agree to comply with and to be bound by all the terms of this 9 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 10 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not 11 disclose in any manner any information or item that is subject to this Stipulated Protective Order to 12 any person or entity except in strict compliance with the provisions of this Stipulated Protective 13 Order. 14 I further agree to submit to the jurisdiction of the United States District Court for the 15 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 16 Order, even if such enforcement proceedings occur after termination of this action. 17 I hereby appoint __________________________ [print or type full name] of 18 _______________________________________ [print or type full address and telephone number] 19 as my California agent for service of process in connection with this action or any proceedings 20 related to enforcement of this Stipulated Protective Order. 21 22 Date: _________________________________ 23 City and State where sworn and signed: _________________________________ 24 Printed name: ______________________________ [printed name] 25 26 Signature: __________________________________ [signature] 27 28 -23ORDER APPROVING STIPULATED PROTECTIVE ORDER 3:14-cv-05382-JST

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