Shenzhenshi Haitiecheng Science and Technology Co., Ltd. v. Rearden LLC et al

Filing 33

ORDER by Judge Samuel Conti granting 30 Stipulated Protective Order. (sclc1, COURT STAFF) (Filed on 6/4/2015)

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page1 of 18

1
2
3
4
5
6
7
8

KILPATRICK TOWNSEND & STOCKTON LLP
JON MICHAELSON (SBN 83815)
[e-mail]
SCOTT E. KOLASSA (SBN 294732)
[e-mail]
FRANCES B. COX (SBN 133696)
[e-mail]
1080 Marsh Road
Menlo Park, CA 94025
Telephone: [phone]
Facsimile: 650 326 2422

DURIE TANGRI LLP
RAGESH K. TANGRI (SBN 159477)
[e-mail]
JOSEPH C. GRATZ (SBN 240676)
[e-mail]
ZAC A. COX (SBN 283535)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile: 415-236-6300

Attorneys for Plaintiff SHENZHENSHI
HAITIECHENG SCIENCE AND TECHNOLOGY
CO., LTD.

Attorneys for Defendants
REARDEN LLC, REARDEN MOVA LLC,
MO2 LLC, MOVA LLC

9
10

UNITED STATES DISTRICT COURT

11

FOR THE NORTHERN DISTRICT OF CALIFORNIA

12

SAN FRANCISCO DIVISION

13
14

SHENZHENSHI HAITIECHENG SCIENCE
AND TECHNOLOGY CO., LTD., a People’s
Republic of China corporation,

15
Plaintiff,

Case No. 15-cv-00797 SC
STIPULATED PROTECTIVE ORDER
AND [PROPOSED] ORDER

16
v.
17
18
19
20

REARDEN, LLC, a California Limited
Liability Company; REARDEN MOVA,
LLC, a California Limited Liability
Company; MO2, LLC, a California Limited
Liability Company; and MOVA, LLC, a
California Limited Liability Company,
Defendants.

21
22

AND RELATED COUNTERCLAIMS.

23
24

1.

PURPOSES AND LIMITATIONS

25

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

26

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

27

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

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-1-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page2 of 18

1

Accordingly, the parties hereby stipulate to and petition the Court to enter the following Stipulated

2

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

3

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

4

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

5

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

6

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

7

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

8

that will be applied when a Party seeks permission from the Court to file material under seal.

9
10
11
12

2.

DEFINITIONS
2.1

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

information or items under this Order.
2.2

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

13

generated, stored, or maintained) or tangible things that qualify for protection under Federal Rule

14

of Civil Procedure 26(c).

15
16
17

2.3

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

well as their support staff).
2.4

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

18

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

19

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

20

2.5

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

21

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

22

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

23

responses to discovery in this matter.

24

2.6

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

25

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

26

consultant in this action.

27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-2-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page3 of 18

1

2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

2

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

3

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

4

less restrictive means, specifically: (1) confidential information relating to highly sensitive

5

technology and trade secrets not already in the possession of the other party; and (2) confidential

6

information relating to unpublished patent filings not already in the possession of the other party.

7
8
9
10
11

2.8

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.9

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

entity not named as a Party to this action.
2.10

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

12

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

13

on behalf of that Party or are affiliated with a law firm which has appeared on behalf of that Party.

14
15
16
17
18

2.11

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).
2.12

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

Material in this action.
2.14

Professional Vendors: persons or entities that provide litigation support services

19

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

20

organizing, storing, or retrieving data in any form or medium) and their employees and

21

subcontractors.

22
23
24
25

2.15

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

“CONFIDENTIAL” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
2.16

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

Producing Party.

26
27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-3-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page4 of 18

1

3.

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

2
3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

use of Protected Material at trial shall be governed by a separate agreement or order.
All Protected Material shall be held in confidence by each person to whom it is disclosed,

14
15

shall be used only for purposes of this litigation, shall not be used for any business purpose or in

16

connection with any other legal proceeding, and shall not be disclosed to any person who is not

17

entitled to receive such information as herein provided. All produced Protected Material shall be

18

carefully maintained so as to preclude access by persons who are not entitled to receive such

19

information.

20
21

4.

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

22

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order

23

otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims

24

and defenses in this action, with or without prejudice; and (2) final judgment herein after the

25

completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

26

including the time limits for filing any motions or applications for extension of time pursuant to

27

applicable law.

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-4-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page5 of 18

1
2

5.

DESIGNATING PROTECTED MATERIAL
5.1

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

3

or Non-Party that designates information or items for protection under this Order must take care to

4

limit any such designation to specific material that qualifies under the appropriate standards. The

5

Designating Party must designate for protection only those parts of material, documents, items, or

6

oral or written communications that qualify – so that other portions of the material, documents,

7

items, or communications for which protection is not warranted are not swept unjustifiably within

8

the ambit of this Order.

9

Mass, indiscriminate, or routinized designations are prohibited. Attorneys’ Eyes Only

10

designations that are shown to be clearly unjustified or that have been made for an improper

11

purpose expose the Designating Party to sanctions. If it comes to a Designating Party’s attention

12

that information or items that it designated for protection do not qualify for protection, that

13

Designating Party must promptly notify all other Parties that it is withdrawing the mistaken

14

designation.

15

5.2

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

16

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

17

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

18

designated before the material is disclosed or produced.

19
20

Designation in conformity with this Order requires:
(a)

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

21

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

22

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

23

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

24

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

25

protected portion(s) (e.g., by making appropriate markings in the margins).

26
27
28

A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which material
STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-5-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page6 of 18

1

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

2

material made available for inspection shall be deemed “CONFIDENTIAL” or “HIGHLY

3

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the

4

documents it wants copied and produced, the Producing Party must determine which documents,

5

or portions thereof, qualify for protection under this Order. Then, before producing the specified

6

documents, the Producing Party must affix the “CONFIDENTIAL” legend to each page that

7

contains Protected Material. If only a portion or portions of the material on a page qualifies for

8

protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making

9

appropriate markings in the margins).

10

(b)

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

11

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

12

other proceeding, all protected testimony, or that the Designating Party advise the court reporter in

13

writing, with copies to Outside Counsel of Records, within fourteen (14) business days after actual

14

receipt of the transcript, of all protected testimony and the level of designation.

15

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

16

other proceeding to include Protected Material so that the other parties can ensure that only

17

authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”

18

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition

19

shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL

20

– ATTORNEYS’ EYES ONLY.”

21

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

22

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

23

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

24

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

25

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

26

21-day period for designation shall be treated during that period as if it had been designated

27

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-6-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page7 of 18

1

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

2

designated.
(c)

3

for information produced in some form other than documentary and for any

4

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

5

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

6

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

7

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

8

identify the protected portion(s).
5.3

9

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

10

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

11

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

12

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

13

in accordance with the provisions of this Order. In the event of any disclosure of Protected

14

Material other than in a manner authorized by this Protective Order, including any unintentional or

15

inadvertent disclosure, counsel for the Party responsible for the disclosure shall immediately

16

notify all Parties of the pertinent facts upon discovery, and make every effort to further prevent

17

unauthorized disclosure, including retrieving all copies of the Protected Material from the

18

recipient(s) thereof and securing the agreement of the recipients not to further disseminate the

19

Protected Material in any form. Compliance with the foregoing shall not prevent the Producing

20

Party from seeking further relief from the Court.

21
22

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

23

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

24

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

25

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

26

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

27

original designation is disclosed.

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-7-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page8 of 18

1

6.2

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

2

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

3

for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

4

notice must recite that the challenge to confidentiality is being made in accordance with this

5

specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

6

good faith and must begin the process by conferring directly (in voice to voice dialogue; other

7

forms of communication are not sufficient) within 14 days of the date of service of notice. In

8

conferring, the Challenging Party must explain the basis for its belief that the confidentiality

9

designation was not proper and must give the Designating Party an opportunity to review the

10

designated material, to reconsider the circumstances, and, if no change in designation is offered, to

11

explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of

12

the challenge process only if it has engaged in this meet and confer process first or establishes that

13

the Designating Party is unwilling to participate in the meet and confer process in a timely

14

manner.

15

6.3

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

16

intervention, the Designating Party shall file and serve a motion to retain confidentiality under

17

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 28 days of

18

the initial notice of challenge. Each such motion must be accompanied by a competent declaration

19

affirming that the movant has complied with the meet and confer requirements imposed in the

20

preceding paragraph. Failure by the Designating Party to make such a motion including the

21

required declaration within 28 days of the initial notice of challenge shall automatically waive the

22

confidentiality designation for each challenged designation. In addition, the Challenging Party

23

may file a motion challenging a confidentiality designation at any time if there is good cause for

24

doing so, including a challenge to the designation of a deposition transcript or any portions

25

thereof. Any motion brought pursuant to this provision must be accompanied by a competent

26

declaration affirming that the movant has complied with the meet and confer requirements

27

imposed by the preceding paragraph.

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-8-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page9 of 18

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

1
2

Party. Unless the Designating Party has waived the confidentiality designation by failing to file a

3

motion to retain confidentiality as described above, all parties shall continue to afford the material

4

in question the level of protection to which it is entitled under the Producing Party’s designation

5

until the Court rules on the challenge.

6
7

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

8

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

9

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

10

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

11

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

12

DISPOSITION).

13
14
15

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

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

16

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

17

information or item designated “CONFIDENTIAL” only to:

18

(a)

the Receiving Party’s Outside Counsel of Record in this action, as well as

19

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

20

information for this litigation and who have signed the “Acknowledgment and Agreement to Be

21

Bound” that is attached hereto as Exhibit A;

22

(b)

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

23

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

24

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

25

(c)

Experts (as defined in this Order) of the Receiving Party (and their

26

necessary support personnel) (1) to whom disclosure is reasonably necessary for this litigation,

27

and (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

-9-

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page10 of 18

1

(d)

the Court and its personnel;

2

(e)

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

3

jurors, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and

4

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

5

during their depositions, witnesses in the action to whom disclosure is

6

reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

7

(Exhibit A), unless otherwise agreed by the Producing Party or ordered by the Court. Pages of

8

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

9

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

10

under this Protective Order;
(g)

11
12

custodian or other person who otherwise possessed or knew the information;
(h)

any mediator who is assigned to hear this matter, and the mediator’s staff;

(j)

13
14

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

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

and

15
16

7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

17

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

18

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

19

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

20

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

21

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the

22

information for this litigation and who have signed the “Acknowledgment and Agreement to Be

23

Bound” that is attached hereto as Exhibit A;

24

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably

25

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

26

Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below,

27

have been followed];

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 10 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page11 of 18

(c) the court and its personnel;

1
2

(d) court reporters and their staff, professional jury or trial consultants,1 and

3
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
4
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
5
6

the author or recipient of a document containing the information or a custodian or other person

7

who otherwise possessed or knew the information.

8
9
10

7.4.

Procedures for Approving or Objecting to Disclosure of “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Experts.
(a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating

11

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

12

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

13

to paragraph 7.3(c) first must make a written request to the Designating Party that (1) identifies the

14

general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information

15

that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of

16

the Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s

17

current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person or entity

18

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

19

expertise or to whom the expert has provided professional services, including in connection with a

20

litigation, at any time during the preceding five years, and (6) identifies (by name and number of

21

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

22

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

23

trial, during the preceding five years.

24
25

(b) A Party that makes a request and provides the information specified in the preceding
respective paragraphs may disclose the subject Protected Material to the identified Expert unless,

26
27
28

1
Alternative: The parties may wish to allow disclosure of information not only to professional jury or trial consultants, but also to
mock jurors, to further trial preparation. In that situation, the parties may wish to draft a simplified, precisely tailored Undertaking for
mock jurors to sign.

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 11 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page12 of 18

1

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

2

Designating Party. Any such objection must set forth in detail the grounds on which it is based.

3

(c) A Party that receives a timely written objection must meet and confer with the

4

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

5

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

6

seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7

7

(and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to

8

do so. Any such motion must describe the circumstances with specificity, set forth in detail the

9

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

10

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

11

addition, any such motion must be accompanied by a competent declaration describing the parties’

12

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

13

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

14

approve the disclosure.

15

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

16

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

17

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

18

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

19

LITIGATION

20

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

21

disclosure of any information or items designated in this action as “CONFIDENTIAL” that Party

22

must:

23
24
25
26

(a)

promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;
(b)

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

issue in the other litigation that some or all of the material covered by the subpoena or order is

27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 12 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page13 of 18

1

subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective

2

Order; and
(c)

3
4

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

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

5
6

or court order shall not produce any information designated in this action as “CONFIDENTIAL”

7

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

8

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

9

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

10

provisions should be construed as authorizing or encouraging a Receiving Party in this action to

11

disobey a lawful directive from another court.

12

9.

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

13

(a)

14

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

15

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

16

ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with

17

this litigation is protected by the remedies and relief provided by this Order. Nothing in these

18

provisions should be construed as prohibiting a Non-Party from seeking additional protections.
(b)

19

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

20

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

21

with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(1)

22

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

23

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

24

Party;

25

(2)

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

26

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

27

description of the information requested; and

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 13 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page14 of 18

(3)

1
2

make the information requested available for inspection by the Non-

Party.
(c)

3

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

4

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

5

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

6

Non-Party timely seeks a protective order, the Receiving Party shall not produce any information

7

in its possession or control that is subject to the confidentiality agreement with the Non-Party

8

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

9

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

10

10.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

11
12

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

13

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

14

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

15

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

16

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

17

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

18

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED

19

MATERIAL

20

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

21

produced material is subject to a claim of privilege or other protection, the obligations of the

22

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

23

provision is not intended to modify whatever procedure may be established in an e-discovery order

24

that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence

25

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

26

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

27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 14 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page15 of 18

1

the parties may incorporate their agreement in the stipulated protective order submitted to the

2

court.

3

12.

4
5
6

MISCELLANEOUS
12.1

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

seek its modification by the Court in the future.
12.2

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

7

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

8

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

9

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

10
11

by this Protective Order.
12.3

Filing Protected Material. Without written permission from the Designating Party

12

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

13

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

14

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

15

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

16

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

17

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

18

otherwise entitled to protection under the law. If a Receiving Party's request to file Protected

19

Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the Court, then the

20

Receiving Party may file the Protected Material in the public record pursuant to Civil Local Rule

21

79-5(e) unless otherwise instructed by the Court.

22

12.4

Non-Party Use of this Protective Order. A Non-Party producing information or

23

material voluntarily or pursuant to a subpoena or a court order may designate such material or

24

information as Protected Material pursuant to the terms of this Protective Order. A Non-Party's use

25

of this Protective Order to protect its Protected Material does not entitle that Non-Party access to

26

the Protected Material produced by any Party in this case.

27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 15 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page16 of 18

12.5

1

Any of the notice requirements herein may be waived, in whole or in part, but only

2

in writing signed by the attorney-in-charge for the Party against whom such waiver will be

3

effective.
12.7

4

The United States District Court for the Northern District of California is

5

responsible for the interpretation and enforcement of this Protective Order. This Court retains and

6

shall have continuing jurisdiction over the Parties and recipients of the Protected Material,

7

including any and all Receiving Parties, for enforcement of the provision of this Protective Order

8

following termination of this litigation. All disputes concerning Protected Material produced under

9

the protection of this Protective Order shall be resolved by the United States District Court for the

10

Northern District of California.
12.8

11

Nothing in this Protective Order shall preclude or impede Outside Counsel of

12

Record’s ability to communicate with or advise their client, in connection with this litigation only,

13

based on Outside Counsel of Record’s review and evaluation of Protected Material, provided

14

however, that such communications or advice shall not disclose or reveal the substance or content

15

of any Protected Material other than as permitted under this Protective Order.

16

13.

17

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each

18

Receiving Party must return all Protected Material to the Producing Party or destroy such material.

19

As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

20

summaries, and any other format reproducing or capturing any of the Protected Material. Whether

21

the Protected Material is returned or destroyed, the Receiving Party must submit a written

22

certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

23

by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected

24

Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained

25

any copies, abstracts, compilations, summaries, or any other format reproducing or capturing any

26

of the Protected Material. Notwithstanding this provision, Outside Counsel of Record are entitled

27

to retain an archival copy of all pleadings, motion papers, trial, deposition and hearing transcripts,

28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 16 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page17 of 18

1

legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

2

product, and consultant and expert work product, even if such materials contain Protected

3

Material. Any such archival copies that contain or constitute Protected Material remain subject to

4

this Protective Order set forth in Section 4 (duration).

5

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

6
7

Dated: June 1, 2015

Respectfully submitted,
KILPATRICK TOWNSEND & STOCKTON LLP

8
9

By: /s/ Scott Kolassa
SCOTT KOLASSA

10
11

Attorneys for Plaintiff and Counterclaim Defendant
SHENZHENSHI HAITIECHENG SCIENCE AND
TECHNOLOGY CO., LTD.

12
13
14

Dated: June 1, 2015

15

Respectfully submitted,
DURIE TANGRI LLP

16
17

By: /s/ Ragesh K. Tangri
RAGESH K. TANGRI

18

Attorneys for Defendants and Counterclaimants
REARDEN, LLC, REARDEN MOVA, LLC,
MO2, LLC, and MOVA, LLC

19
20
21

[PROPOSED] ORDER

22
23

PURSUANT TO STIPULATION, IT IS SO ORDERED.

24
25

DATED:

2015
United States District Judge

26
27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 17 -

Case3:15-cv-00797-SC Document30 Filed06/01/15 Page18 of 18

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _________________________, of __________________________________________,

4

declare under penalty of perjury that I have read in its entirety and understand the Stipulated

5

Protective Order that was issued by the United States District Court for the Northern District of

6

California on _________________ in the case of Shenzhenshi Haitiecheng Science And

7

Technology Co., Ltd. v. Rearden, LLC; Rearden Mova, LLC; MO2, LLC; and Mova, LLC, Civil

8

Action No. 15-CV-00797 SC.

9

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

10

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

11

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

12

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

13

except in strict compliance with the provisions of this Order.

14

I understand that I am to retain all copies of any Protected Material, however designated, in

15

a secure manner, and that all copies are to remain in my personal custody until I have completed

16

my assigned duties, whereupon the copies and any writings prepared by me containing any

17

information designated as Protected Material are to be returned to counsel who provided me with

18

such material or destroyed, with certification of destruction.

19

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

20

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

21

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

22

Date: _________________________________

23

City and State where sworn and signed: _________________________________

24
25

Printed name:

26

Signature:

27
28

STIPULATED PROTECTIVE ORDER
CASE NO. 15-CV-00797 SC
KILPATRICK TOWNSEND 67353167 1

- 18 -