24/7 Customer, Inc. v. LivePerson, Inc.

Filing 52

STIPULATION AND ORDER re 51 STIPULATION WITH [PROPOSED] ORDER re PROPOSED STIPULATED PROTECTIVE ORDER filed by 24/7 Customer, Inc. Signed by Judge Jon S. Tigar on December 18, 2015. (wsn, COURT STAFF) (Filed on 12/18/2015)

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Karen I. Boyd (State Bar No. 189808)
[e-mail]
Louis L. Wai (State Bar No. 295089)
[e-mail]
TURNER BOYD LLP
702 Marshall Street, Suite 640
Redwood City, California 94063
Telephone: [phone]
Facsimile: [phone]
J. Michael Huget (admitted pro hac vice )
[e-mail]
Charles W. Duncan, Jr. (admitted pro hac vice )
[e-mail]
Sarah E. Waidelich (admitted pro hac vice )
[e-mail]
HONIGMAN MILLER SCHWARTZ AND
COHN LLP
315 E. Eisenhower Parkway, Suite 100
Ann Arbor, MI 48108-3330
Telephone: [phone]
Attorneys for Defendant
LIVEPERSON, INC.

GEORGE RILEY (S.B. #118304)
[e-mail]
MARK E. MILLER (S.B. #130200)
[e-mail]
DAVID R. EBERHART (S.B. #195474)
[e-mail]
ELYSA Q. WAN (S.B. #297806)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, California 94111-3823
Telephone:
[phone]
Facsimile:
[phone]
Susan D. Roeder (S.B. #160897)
[e-mail]
O’MELVENY & MYERS LLP
2765 Sand Hill Road
Menlo Park, CA 94025-7019
Carolyn S. Wall (pro hac vice)
[e-mail]
O’MELVENY & MYERS LLP
Times Square Tower, 7 Times Square
New York, New York 10036
Attorneys for Plaintiff
24/7 Customer, Inc.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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24/7 Customer, Inc.,

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Case No. 3:15-CV-02897-JST
Plaintiff,

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v.

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[PROPOSED] STIPULATED
PROTECTIVE ORDER

LivePerson, Inc.,

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Defendant.

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

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[PROPOSED] STIPULATED PROTECTIVE ORDER
1.

PURPOSES AND LIMITATIONS

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

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

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

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Accordingly, the Parties hereby stipulate to and petition the Court to enter the following

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Stipulated Protective Order. The Parties acknowledge that this Order does not confer blanket

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protections on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. The parties further acknowledge, as

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set forth in Section 15.4, below, that this Stipulated Protective Order does not entitle them to file

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confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be

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followed and the standards that will be applied when a party seeks permission from the court to

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file material under seal.

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2.

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DEFINITIONS
2.1

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

documents, information, or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: documents, information (regardless of

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how it is generated, stored or maintained), or tangible things that qualify for protection under

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Federal Rule of Civil Procedure 26(c).

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2.3

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

well as their support staff).
2.4

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE

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CODE”.

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2.5

Disclosure or Discovery Material: all documents, items, or information, regardless

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PROTECTIVE ORDER
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of the medium or manner in which it is generated, stored, or maintained (including, among other

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

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or responses to discovery in this matter.

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2.6

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

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

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

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

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employee or consultant of a Party or of a Party’s competitor outside of this action. This definition

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includes a professional jury or trial consultant retained in connection with this litigation.

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2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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

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

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less restrictive means.

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2.8

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:

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information that falls within the definition of HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY information and that comprises computer source code (e.g., C++ code). The

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definition of HIGHLY CONFIDENTIAL – SOURCE CODE does not include descriptions or

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summaries of the Designated Code, design specifications, schematics, flow charts, or block

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diagrams, nor shall it include materials that appear in user manuals, technical manuals, service

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manuals, presentations, or similar documents.

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2.9

In-House Counsel: attorneys (and their support staff) who are employees of a Party

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to this action. In-House Counsel does not include Outside Counsel of Record or any other outside

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counsel.

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2.10

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

entity not named as a Party to this action.
2.11

Outside Counsel of Record: attorneys (and their support staff) who are not

employees of a Party to this action but are retained to represent or advise a Party to this action and

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
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have appeared in this action on behalf of that Party or are affiliated with a law firm which has

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appeared on behalf of that Party.

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consultants, retained experts, and Outside Counsel of Record (and their support staff).

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Party: any party to this action, including all of its officers, directors, employees,

2.13

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

Material in this action.

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2.14

Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, jury analysis,

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

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subcontractors.

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2.15

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

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

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“HIGHLY CONFIDENTIAL – SOURCE CODE.”

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2.16

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

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Producing Party.

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3.

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SCOPE
The protections conferred by this Order cover not only Protected Material (as defined

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

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

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

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

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

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

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

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

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

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obtained the information lawfully and under no obligation of confidentiality to the Designating

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PROTECTIVE ORDER
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Party. Any use of Protected Material at trial shall be governed by a separate ruling or order of the

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Court.

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4.

DURATION

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

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

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

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

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

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

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applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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

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

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To the extent it is practical to do so, the Designating Party must designate for protection only

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those parts of material, documents, items, or oral or written communications that qualify – so that

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other portions of the material, documents, items, or communications for which protection is not

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warranted are not swept unjustifiably within the ambit of this Order.

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If it comes to a Designating Party’s attention that information or items that it designated

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for protection do not qualify for protection at all or do not qualify for the level of protection

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initially asserted, that Designating Party must promptly notify all other Parties that it is

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withdrawing the designation.

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Mass, indiscriminate, or routinized designations are prohibited. Designations that are

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shown to be clearly unjustified or that have been made for an improper purpose (e.g., to

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unnecessarily encumber or retard the case development process or to impose unnecessary

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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5.2

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

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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[PROPOSED] STIPULATED
PROTECTIVE ORDER
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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so

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designated before the material is disclosed or produced.

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

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

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

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EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains

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protected material.

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

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

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

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

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

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

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE

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CODE) to each page that contains Protected Material.

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

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

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

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

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

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

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a right to have up to 21 days to identify the specific portions of the testimony as to which

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

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

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PROTECTIVE ORDER
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by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may

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

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

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ATTORNEYS’ EYES ONLY.”

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While Protected Material is being used at a deposition, no person to whom the Protected

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Material may not be disclosed under this Order shall be present. While Protected Material is

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being used at a hearing or other proceeding, either Party may request that the courtroom be

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closed. The use of a document as an exhibit at a deposition shall not in any way affect its

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designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

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ONLY,” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”
Transcripts containing Protected Material shall have an obvious legend on the title page

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

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

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

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

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

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

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

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actually designated.

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

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

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

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

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– SOURCE CODE”.

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5.3

Inadvertent Failures to Designate. An inadvertent failure to designate qualified

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information or items does not waive the Designating Party’s right to secure protection under this

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Order for such material. Upon timely correction of a designation, the Receiving Party must make

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
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reasonable efforts to assure that the material is treated in accordance with the provisions of this

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Order.

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6.

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CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

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

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

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

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original designation is disclosed.

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6.2

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

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

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for each challenge. The parties shall attempt to resolve each challenge in good faith and must

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

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

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the Challenging Party must explain the basis for its belief that the confidentiality designation was

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not proper and must give the Designating Party an opportunity to review the designated material,

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

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

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

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

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6.3

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

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intervention, the Challenging Party shall file and serve a motion that identifies generally, but does

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not quote or paraphrase the substance of, the challenged material and sets forth in detail the basis

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for the challenge. The burden to justify the particular designation shall be on the Designating

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Party. Each such motion must be accompanied by a statement affirming that the movant has

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complied with the meet and confer requirements imposed in the preceding section. Until the

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Court rules on the challenge, all Parties shall continue to afford the material in question the level

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
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of protection to which it is entitled under the Designating Party’s designation. Frivolous

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

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

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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

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

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been terminated, a Receiving Party must comply with the provisions of section 16 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

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

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

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information or item designated “CONFIDENTIAL” only to:

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

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

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information for this litigation;

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

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

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

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(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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

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Agreement to Be Bound” (Exhibit A);

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(d) the court and its personnel;

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

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Professional Vendors to whom disclosure is reasonably necessary for this litigation;

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

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

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

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

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

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under this Stipulated Protective Order.

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(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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

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

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information for this litigation;

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

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

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

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followed;

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(c) the court and its personnel;

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

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Professional Vendors to whom disclosure is reasonably necessary for this litigation; and
(e) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL

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– ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”

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Information or Items to Experts.

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PROTECTIVE ORDER
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Unless otherwise ordered by the Court or agreed to in writing by the Designating Party, a

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Party that seeks to disclose to an Expert any document, information, or other item that has been

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designated HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY

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CONFIDENTIAL - SOURCE CODE first must complete a reasonable investigation of the Expert

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and determine (1) that the Expert's current employer(s) are not competitors of the Receiving

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Party. The Parties have met and conferred to develop a list of Competitors, and will continue to

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meet and confer to revise the Competitors list in the event either Party wishes to modify it; (2)

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that the Expert is not a past employee of a Party or a Party's competitor and at the time of

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retention not anticipated to become an employee of a Party or a competitor; and (3) that the

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Expert, and all persons working with or for the Expert that will receive any document,

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information, or other item that has been designated HIGHLY CONFIDENTIAL - ATTORNEYS'

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EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE CODE, have executed the "Agreement

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to Be Bound" (Exhibit A) . For each such investigation completed, the Party or its counsel who

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conducted the investigation must prepare and sign a declaration attesting to the reasonableness of

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his or her investigation and that the investigation determined (1) that the Expert's current

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employer(s) are not competitors of the Receiving Party, (2) that the Expert is not a past employee

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of a Party or a Party's competitor and at the time of retention not anticipated to become an

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employee of a Party or a competitor; and (3) that the Expert, and all persons working with or for

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the Expert that received the Protected Material and executed the "Agreement to Be Bound"

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(Exhibit A) . The Receiving Party shall keep and store all such declarations and shall provide

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them to the Designating Party at the conclusion of the litigation if the Court so orders upon

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showing of good cause by the Designating Party.

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8.

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PROSECUTION BAR
Absent written consent from the Producing Party, any individual who receives access to

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

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SOURCE CODE” information shall not be involved in the prosecution of patents or patent

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applications relating to systems and methods of customer service and customer engagement

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PROTECTIVE ORDER
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including, but not limited to, agent-assisted interactions, self-service solutions, virtual assistants,

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customer analytics, predictive analytics, recommendation engines, natural language techniques,

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and knowledge management, and including without limitation the patents asserted in this action

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

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this action, before any foreign or domestic agency, including the United States Patent and

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Trademark Office (“the Patent Office”). For purposes of this paragraph, "prosecution" includes

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advising on, consulting on, preparing, prosecuting, drafting, editing, and/or amending of

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applications, specifications, claims, and/or responses to office actions, or otherwise affecting the

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disclosure in patent applications or specifications or the scope of claims in patents or patent

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applications, whether in original prosecution, reissue, reexamination, inter partes review, or post-

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grant review. The term "prosecution" does not include patent prosecution duties that involve little

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more than reporting off ice actions or filing ancillary paperwork, such as sequence listings, formal

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drawings, or information disclosure statements; involvement in high-altitude oversight of patent

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prosecution, such as staffing projects or coordinating client meetings having no significant role in

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crafting the content of patent applications or advising clients on the direction to take their

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portfolios; and any other activities that present little risk that attorneys involved solely in these

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kinds of prosecution activities will inadvertently rely on or be influenced by information they

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may learn as trial counsel during the course of litigation. Further, to avoid any doubt,

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"prosecution" as used in the section 9 does not include representing a party who is challenging the

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validity of a patent in any such proceedings. This Prosecution Bar shall begin when access to

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

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SOURCE CODE” information is first received by the affected individual and shall end one (1)

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year after final termination of this action.

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9.

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SOURCE CODE
(a)

To the extent production of source code becomes necessary in this case, a

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Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE”

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if it comprises confidential, proprietary or trade secret source code.

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[PROPOSED] STIPULATED
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(b)

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

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CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information including the Prosecution Bar set forth in Paragraph

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8, and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and

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7.4.

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9.1

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Source code that is designated “HIGHLY CONFIDENTIAL – SOURCE CODE” shall be

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Production of Source Code

produced for inspection and review subject to the following provisions, unless otherwise agreed
by the Producing Party:
(a)

Any source code produced in discovery shall be made available for inspection, in a

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format allowing it to be reasonably reviewed and searched, during normal business hours or at

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other mutually agreed times, at an office of the Producing Party’s Counsel or another mutually

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agreed upon location.

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(b)

All source code shall be made available by the Producing Party to the Receiving

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Party’s Outside Counsel of Record and/or experts on a secured computer in a secured room

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without Internet access or network access to other computers, as necessary and appropriate to

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prevent and protect against any unauthorized copying, transmission, removal or other transfer of

19

any source code outside or away from the computer on which the source code is provided for

20

inspection (the “Source Code Computer” in the “Source Code Review Room”).

21

(c)

The Producing Party shall provide a manifest of the contents of the Source Code

22

Computer. This manifest shall be supplied in both printed and electronic form and shall list the

23

name and location (i.e., filename and filepath) of every source code file on the Source Code

24

Computer.

25

(d)

The Source Code Computer shall include software utilities that will allow

26

authorized counsel and experts to view, search, and analyze the source code. At a minimum,

27

these utilities should provide the ability to view, search, and line-number any source file; search

28
- 13 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

for a given pattern of text through a number of files; compare files and display their differences;

2

and compute the MD5 checksum of a file. The Producing Party shall install commercially

3

available, licensed software tools for viewing and searching source code on the Source Code

4

Computer, including text editors and multi-file test search results. If the Receiving Party wishes

5

to use a tool other than those provided by the Producing Party, the Receiving Party must provide

6

the Producing Party with a CD or DVD containing free or licensed software tool(s) for source

7

code review at least five (5) business days in advance of the date upon which the Receiving Party

8

wishes to review source code. The Producing Party has two (2) business days to object to use of

9

the requested software. If, after meeting and conferring, the Producing Party and the Receiving

10

Party cannot resolve the objection, the Parties shall file a joint motion within three (3) business

11

days after the completion of the meet and confer process, and the Parties will request expedited

12

consideration of the motion.

13

(e)

No recordable media or storage devices, including without limitation sound

14

recorders, scanner, camera, CDs, DVDs, or external drives of any kind, shall be permitted into the

15

Source Code Review Room.

16

(f)

The Receiving Party’s counsel and/or experts shall be entitled to take notes

17

relating to the source code but may not copy the source code into the notes and may not take such

18

notes on the Source Code Computer itself. No copies of all or any portion of the source code may

19

leave the room in which the source code is inspected except as otherwise provided herein.

20

Further, no other written or electronic record of the source code is permitted except as otherwise

21

provided herein.

22

(g)

The Producing Party shall make available a laser printer with commercially

23

reasonable printing speeds for on-site printing during inspection of the source code. The

24

Receiving Party may print limited portions of the source code only when reasonably necessary to

25

prepare court filings or pleadings or other papers (including a testifying expert’s expert report or

26

for use as deposition exhibits). Absent agreement of the Producing Party or further order of the

27

Court, the Receiving Party may print out no more than 10% of a specific software release and no

28
- 14 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

print-out may exceed 50 continuous pages. The Receiving Party shall not print source code to

2

review blocks of source code elsewhere in the first instance, i.e., as an alternative to reviewing

3

that source code electronically on the Source Code Computer. The Receiving Party shall provide

4

the printed pages to the Producing Party, who shall add production numbers, copy, and label

5

“HIGHLY CONFIDENTIAL – SOURCE CODE” any pages printed by the Receiving Party. The

6

Receiving Party may not leave the Source Code Review Room with unnumbered and unlabeled

7

printed source code pages. If the Producing Party objects that the printed portions are excessive

8

and/or not created for a permitted purpose, the Producing Party shall make such objection known

9

to the Receiving Party within five (5) business days of receiving such printed portions. If, after

10

meeting and conferring, the Producing Party and the Receiving Party cannot resolve the

11

objection, the Receiving Party shall be entitled to seek a Court resolution of whether the printed

12

source code in question was printed for a permitted purpose. In the event of an objection, the

13

Producing Party shall not provide any copies of such pages to the Receiving Party unless and

14

until the dispute has been resolved. In the absence of any objection, or upon resolution of any

15

such dispute by the Court, the Producing Party shall provide one copy set of such pages to the

16

Receiving Party within five (5) business days after receiving the printed pages. The printed pages

17

shall constitute part of the source code produced by the Producing Party in this action.

18

(h)

All persons viewing source code shall sign a log on each day they view Source

19

Code; that log will be maintained by the Producing Party, and will include the names of persons

20

who enter the locked room to view the source code. Both parties shall be entitled to review the

21

log.

22

(i)

Other than as provided herein, the Receiving Party will not copy, remove, or

23

otherwise transfer any portion of the source code from the Source Code Computer including,

24

without limitation, copying, removing, or transferring the source code onto any recordable media

25

or recordable device, including without limitation sound recorders, computers, cellular

26

telephones, scanners, cameras, CDs, DVDs, or external drives of any kind.

27

(j)

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

28
- 15 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

of any source code shall maintain and store any copies of the source code at their offices in a

2

manner that prevents duplication of or unauthorized access to the source code, including, without

3

limitation, storing the source code in a locked room or cabinet at all times when it is not in use.

4

(k)

Except as provided in this sub-section, absent express written permission from the

5

Producing Party, the Receiving Party may not create electronic images or electronic copies of the

6

source code from any paper copy of source code for use in any manner (including by way of

7

example only, the Receiving Party may not scan the source code to a PDF or photograph the

8

code). The Receiving Party may make paper copies of printed source code as reasonably

9

necessary for use in the prosecution or defense of this action, subject to the limitations set forth in

10

this Protective Order. Images or copies of source code shall not be included in correspondence

11

between the Parties (references to production numbers shall be used instead), and shall be omitted

12

from pleadings and other papers whenever possible. If a Party reasonably believes that it must

13

submit a portion of source code as part of a filing with the Court, the Party may make such a

14

filing under seal in accordance with the Court’s procedures and may create electronic images or

15

electronic copies solely for use with such filing. If a Producing Party agrees to produce an

16

electronic copy of all or any portion of its source code or the Receiving Party makes such an

17

electronic copy for a Court filing or pursuant to the written permission of the Producing Party, the

18

Receiving Party’s communication and/or disclosure of electronic files or other materials

19

containing any portion of source code (paper or electronic) shall at all times be limited to solely

20

those individuals who are expressly authorized to view source code under the provisions of this

21

Protective Order. In cases where the Producing Party has provided the express written permission

22

required under this provision for a Receiving Party to create electronic copies of source code, any

23

such electronic copies must be labeled HIGHLY CONFIDENTIAL – SOURCE CODE as

24

provided for in this Order.

25

(l)

The Producing Party may visually monitor the activities of the Receiving Party’s

26

representatives during any source code review, but only to ensure that there is no unauthorized

27

recording, copying, or transmission of the source code.

28
- 16 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

(m)

At the conclusion of the litigation, counsel for each Party will certify on behalf of

2

itself and anyone working with and/or at the direction of counsel or the Party that all copies,

3

electronic or paper, of or containing source code have been destroyed or erased in a manner than

4

prevents any forensic recovery of the source code, with the exception of portions of source code

5

that were included in filed or served pleadings or their exhibits, or as exhibits to deposition, or

6

admitted into evidence. Other than as set forth in this sub-section, counsel may not retain any

7

copies of source code.

8

10.

9

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

10
disclosure of any information or items designated in this action as “CONFIDENTIAL,”
11
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL
12
– SOURCE CODE” that Party must:
13
(a) promptly notify in writing the Designating Party. Such notification shall
14
include a copy of the subpoena or court order;
15
(b) promptly notify in writing the person who caused the subpoena or order to
16
issue in the other litigation that some or all of the material covered by the subpoena or order is
17
subject to this Protective Order. Such notification shall include a copy of this Stipulated
18
Protective Order; and
19
(c) cooperate with respect to all reasonable procedures sought to be pursued by the
20
Designating Party whose Protected Material may be affected.
21
If the Designating Party timely seeks a protective order, the Party served with the
22
subpoena or court order shall not produce any information designated in this action as
23
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
24
“HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court from
25
which the subpoena or order issued, unless the Party has obtained the Designating Party’s
26
permission. The Designating Party shall bear the burden and expense of seeking protection in that
27
court of its confidential material – and nothing in these provisions should be construed as
28
- 17 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from

2

another court.

3

11.

4

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

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

5
this action and designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
6
ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such
7
information produced by Non-Parties in connection with this litigation is protected by the
8
remedies and relief provided by this Order. Nothing in these provisions should be construed as
9
prohibiting a Non-Party from seeking additional protections.
10
(b)

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

11
Non-Party’s confidential information in its possession, and the Party is subject to an agreement
12
with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
13
1.

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

14
some or all of the information requested is subject to a confidentiality agreement with a Non15
Party;
16
2.

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

17
Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
18
the information requested; and
19
3.

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

20
(c)

If the Non-Party fails to object or seek a protective order from this court within 14

21
days of receiving the notice and accompanying information, the Receiving Party may produce the
22
Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
23
seeks a protective order, the Receiving Party shall not produce any information in its possession
24
or control that is subject to the confidentiality agreement with the Non-Party before a
25
determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
26
burden and expense of seeking protection in this court of its Protected Material.
27
28
- 18 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

12.

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

2
3

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

4

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

5

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

6

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

7

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

8

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

9

13.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
provision is not intended to modify whatever procedure may be established in an e-discovery
order that provides for production without prior privilege review. Pursuant to Federal Rule of
Evidence 502(d) and (e), insofar as the Parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work product
protection, the Parties may incorporate their agreement in the stipulated protective order
submitted to the court.
14.

PRIVILEGE LOG
A Producing Party may withhold production of a document or portions of a document

based on the assertion that the otherwise responsive document is privileged (i.e., attorney-client
privilege or work-product doctrine). Within a reasonable time after production of any documents
from which any materials have been withheld as privileged, the Party asserting a claim of
privilege will describe the nature of the documents or other material withheld in a manner that
complies with Federal Rule of Civil Procedure 26(b)(5)(A). Unless otherwise agreed to by the
parties or ordered by the Court, the parties are not required to log or otherwise provide
information about privileged documents that post-date March 6, 2014.

28
- 19 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

15.

15.1

2
3

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

seek its modification by the court in the future.
15.2

4

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

5

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

6

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

7

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

8

by this Protective Order.
15.3

9

Export Control. Disclosure of Protected Material shall be subject to all applicable

10

laws and regulations relating to the export of technical data contained in such Protected Material,

11

including the release of such technical data to foreign persons or nationals in the United States or

12

elsewhere. The Producing Party shall be responsible for identifying any such controlled technical

13

data, and the Receiving Party shall take measures necessary to ensure compliance.
15.4

14

Filing Protected Material. Without written permission from the Designating Party

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

79-5(e)(2) unless otherwise instructed by the court.

25

16.

26
27

FINAL DISPOSITION
Within ninety (90) calendar days after the final disposition of this action, as

defined in Section 4 above, each Receiving Party must return all Protected Material to the

28
- 20 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

Producing Party or destroy such material. As used in this subdivision, “all Protected Material”

2

includes all copies, abstracts, compilations, summaries, and any other format reproducing or

3

capturing any of the Protected Material. Whether the Protected Material is returned or destroyed,

4

the Receiving Party must submit a written certification to the Producing Party (and, if not the

5

same person or entity, to the Designating Party) by the 90-day deadline that affirms that the

6

Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

7

format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

8

Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,

9

and hearing transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert

10

reports, attorney work product, and consultant and Expert work product, even if such materials

11

contain Protected Material. Any such archival copies that contain or constitute Protected Material

12

remain subject to this Protective Order as set forth in Section 4 above.

13
14

Dated: December 18, 2015

O’MELVENY & MYERS
By:
s/ Mark E. Miller
Mark E. Miller

15
16

Attorney for Plaintiff
24/7 Customer, Inc.

17
18
19
20
21

Dated: December 18, 2015

TURNER BOYD LLP
By:
s/ Karen Boyd
Karen Boyd

22
23

Attorneys for Defendant
LivePerson, Inc.

24
25
26
27
28
- 21 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

CIVIL L. R. 5.1(i)(3) ATTESTATION

2
In compliance with Local Rule 5-1(i)(3), I hereby attest that Karen Boyd, counsel
3
for Defendant, has concurred in the filing of this [Proposed] Stipulated Protective Order.
4
Dated: December 18, 2015
5
O’MELVENY & MYERS LLP
6
7

s/ Mark E. Miller
8

Mark E. Miller
Attorney for Plaintiff
24/7 Customer, Inc.

9
10
11
12

[PROPOSED] ORDER

13

The parties’ stipulation is adopted and IT IS SO ORDERED.

DERED

O OR
IT IS S

R NIA

By:

Jon S. Tigar
United States District Judge

18

NO

19

RT

20

nS
J u d ge J o

H

ER

. Ti ga r

21
22

FO

Dated: December 18, 2015

LI

17

UNIT
ED

16

RT
U
O

S

15

S DISTRICT
TE
C
TA

A

14

N

D IS T IC T
R

OF

C

23
24
25
26
27
28
- 22 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST

1

EXHIBIT A

2
3

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________ [print or

4

type full address], declare under penalty of perjury that I have read in its entirety and understand the

5

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

6

California on [date] in the case of 24/7 Customer, Inc. v. LivePerson, Inc., Case No. 3:15-CV-02897-JST.

7

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

8

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

9

nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that

10

is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the

11

provisions of this Order.

12

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

13

District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if

14

such enforcement proceedings occur after termination of this action.

15
16

Date: _________________________________

17

City and State where sworn and signed: _________________________________

18

Printed name: ______________________________
[printed name]

19
20

Signature: __________________________________
[signature]

21
22
23
24
25
26
27
28
- 23 -

[PROPOSED] STIPULATED
PROTECTIVE ORDER
3:15-CV-02897-JST