Thunder Power New Energy Vehicle Development Company Limited v. Byton North America Corporation et al

Filing 75

STIPULATION AND ORDER re 72 STIPULATION WITH PROPOSED ORDER [Proposed] Stipulated Protective Order filed by Thunder Power New Energy Vehicle Development Company Limited. Signed by Judge Jon S. Tigar on October 23, 2018. (wsn, COURT STAFF) (Filed on 10/23/2018)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

NORTHERN DISTRICT OF CALIFORNIA

8
9
10

THUNDER POWER NEW ENERGY
VEHICLE DEVELOPMENT COMPANY
LIMITED,
Plaintiff,

11
12
13
14

Case No. 3:18-cv-03115-JST
[PROPOSED] STIPULATED
PROTECTIVE ORDER

v.
BYTON NORTH AMERICA
CORPORATION; NANJING BYTON NEW
ENERGY VEHICLE TECHNOLOGY
DEVELOPMENT CO., LTD.,

15

Defendants.

16
17

1.

18

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

19

proprietary, or private information for which special protection from public disclosure and from use for any

20

purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to

21

and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this

22

Order does not confer blanket protections on all disclosures or responses to discovery and that the

23

protection it affords from public disclosure and use extends only to the limited information or items that are

24

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

25

set forth in Section 14.4, below, that this Stipulated Protective Order does not entitle them to file

26

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

27

and the standards that will be applied when a party seeks permission from the court to file material under

28

seal.
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

1

2.

2
3

DEFINITIONS
2.1

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

items under this Order.

4

2.2

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

5

stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure

6

26(c).

7

2.3

8

their support staff).

9

2.4

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

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

10

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

11

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

12

2.5

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

13

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

14

transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in

15

this matter.

16

2.6

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

17

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

18

in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, and (3) at the time

19

of retention, is not anticipated to become an employee of a Party or of a Party’s competitor.

20

2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:

21

extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non-Party

22

would create a substantial risk of serious harm that could not be avoided by less restrictive means.

23

2.8

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely

24

sensitive “Confidential Information or Items” representing computer code and associated comments and

25

revision histories, formulas, engineering specifications, or schematics that define or otherwise describe in

26

detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or

27

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

28

means.
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-2-

1
2

2.9

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

3
4

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

2.10

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

not named as a Party to this action.

5

2.11

Outside Counsel of Record: attorneys who are not employees of a party to this action but

6

are retained to represent or advise a party to this action and have appeared in this action on behalf of that

7

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

8
9

2.12

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

10
11

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.

12

2.14

Professional Vendors: persons or entities that provide litigation support services (e.g.,

13

photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or

14

retrieving data in any form or medium) and their employees and subcontractors.

15

2.15

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

16

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

17

CONFIDENTIAL – SOURCE CODE.”

18

2.16

19

Party.

20

3.

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

21

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

22

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

23

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

24

presentations by Parties or their Counsel that might reveal Protected Material. However, the protections

25

conferred by this Stipulation and Order do not cover the following information: (a) any information that is

26

in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain

27

after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order,

28

including becoming part of the public record through trial or otherwise; and (b) any information known to
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-3-

1

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

2

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

3

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

4

4.

5

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

6

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

7

directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this

8

action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all

9

appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any

10

motions or applications for extension of time pursuant to applicable law.

11

5.

12

DESIGNATING PROTECTED MATERIAL
5.1

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

13

Party that designates information or items for protection under this Order must take care to limit any such

14

designation to specific material that qualifies under the appropriate standards. To the extent it is practical to

15

do so, the Designating Party must designate for protection only those parts of material, documents, items,

16

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

17

communications for which protection is not warranted are not swept unjustifiably within the ambit of this

18

Order.

19

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be

20

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

21

retard the case development process or to impose unnecessary expenses and burdens on other parties)

22

expose the Designating Party to sanctions.

23

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

24

protection do not qualify for protection at all or do not qualify for the level of protection initially asserted,

25

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

26

designation.

27
28

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, Disclosure or Discovery
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-4-

1

Material that qualifies for protection under this Order must be clearly so designated before the material is

2

disclosed or produced.

3

Designation in conformity with this Order requires:

4

(a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of

5

depositions or other pretrial or trial proceedings), that the Producing Party affix the legend

6

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

7

CONFIDENTIAL – SOURCE CODE” to each page that contains protected material. If only a portion or

8

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

9

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

10
11

portion, the level of protection being asserted.
A Party or Non-Party that makes original documents or materials available for inspection need not

12

designate them for protection until after the inspecting Party has indicated which material it would like

13

copied and produced. During the inspection and before the designation, all of the material made available

14

for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the

15

inspecting Party has identified the documents it wants copied and produced, the Producing Party must

16

determine which documents, or portions thereof, qualify for protection under this Order. Then, before

17

producing the specified documents, the Producing Party must affix the appropriate legend

18

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

19

CONFIDENTIAL – SOURCE CODE) to each page that contains Protected Material. If only a portion or

20

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

21

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

22

portion, the level of protection being asserted.

23

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

24

identify on the record, before the close of the deposition, hearing, or other proceeding, all protected

25

testimony and specify the level of protection being asserted. When it is impractical to identify separately

26

each portion of testimony that is entitled to protection and it appears that substantial portions of the

27

testimony may qualify for protection, the Designating Party may invoke on the record (before or at the

28

conclusion of the deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-5-

1

identify the specific portions of the testimony as to which protection is sought and to specify the level of

2

protection being asserted. Only those portions of the testimony that are appropriately designated for

3

protection within the 21 days shall be covered by the provisions of this Stipulated Protective Order.

4

Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that period

5

is properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY

6

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

7

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

8

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

9

individuals who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present

10

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

11

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

12

“HIGHLY CONFIDENTIAL – SOURCE CODE.”

13

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

14

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

15

line numbers as appropriate) that have been designated as Protected Material and the level of protection

16

being asserted by the Designating Party. The Designating Party shall inform the court reporter of these

17

requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall

18

be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

19

EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript

20

shall be treated only as actually designated.

21

(c) for information produced in some form other than documentary and for any other tangible items, that

22

the Producing Party affix in a prominent place on the exterior of the container or containers in which the

23

information or item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

24

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. If only a portion or

25

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

26

identify the protected portion(s) and specify the level of protection being asserted.

27
28

5.3

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

qualified information or items does not, standing alone, waive the Designating Party’s right to secure
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-6-

1

protection under this Order for such material. Upon receiving timely notice and correction of a designation,

2

the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with

3

the provisions of this Order.

4

6.

5

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

6

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

7

is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant

8

disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality

9

designation by electing not to mount a challenge promptly after the original designation is disclosed.

10

6.2

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

11

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

12

To avoid ambiguity as to whether a challenge has been made, the written notice should recite that the

13

challenge to confidentiality is being made in accordance with this specific paragraph of the Protective

14

Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by

15

conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14

16

days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its

17

belief that the confidentiality designation was not proper and must give the Designating Party an

18

opportunity to review the designated material, to reconsider the circumstances, and, if no change in

19

designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to

20

the next stage of the challenge process only if it has engaged in this meet and confer process first or

21

reasonably establishes that the Designating Party is unwilling to participate in the meet and confer process

22

in a timely manner.

23

6.3

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

24

the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in

25

compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or

26

within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute,

27

whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that the

28

movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-7-

1

by the Designating Party to make such a motion including the required declaration within 21 days (or 14

2

days, if applicable) shall automatically waive the confidentiality designation for each challenged

3

designation. In addition, the Challenging Party may file a motion challenging a confidentiality designation

4

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

5

transcript or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a

6

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

7

imposed by the preceding paragraph.

8
9

The burden of persuasion in any such challenge proceeding shall be on the Designating Party.
Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary

10

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

11

Designating Party has waived the confidentiality designation by failing to file a motion to retain

12

confidentiality as described above, all parties shall continue to afford the material in question the level of

13

protection to which it is entitled under the Producing Party’s designation until the court rules on the

14

challenge.

15

7.

16

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

17

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

18

or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of

19

persons and under the conditions described in this Order. When the litigation has been terminated, a

20

Receiving Party must comply with the provisions of section 15 below (FINAL DISPOSITION).

21
22
23

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

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

24

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

25

item designated “CONFIDENTIAL” only to:

26

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

27

Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation;

28

(b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-8-

1

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

2

Agreement to Be Bound” (Exhibit A);

3

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

4

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

5

(d) the court and its personnel;

6

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

7

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

8

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

9

(f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who

10

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by

11

the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

12

depositions that reveal Protected Material must be separately bound by the court reporter and may not be

13

disclosed to anyone except as permitted under this Stipulated Protective Order.

14

(g) the author or recipient of a document containing the information or a custodian or other person who

15

otherwise possessed or knew the information.

16

7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and

17

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise ordered by the

18

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

19

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

20

CONFIDENTIAL – SOURCE CODE” only to:

21

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

22

Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation;

23

(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this litigation, (2)

24

who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the

25

procedures set forth in paragraph 7.4(a), below, have been followed];

26

(c) the court and its personnel;

27

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

28

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

-9-

1

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

2

(e) the author or recipient of a document containing the information or a custodian or other person who

3

otherwise possessed or knew the information.

4

7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL –

5

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

6

to or Experts.

7
8

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

9

seeks to disclose to an Expert (as defined in this Order) any information or item that has been designated

10

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

11

SOURCE CODE” pursuant to paragraph 7.3(b) first must make a written request to the Designating Party

12

that (1) sets forth the full name of the Expert and the city and state of his or her primary residence, (2)

13

attaches a copy of the Expert’s current resume, (3) identifies the Expert’s current employer(s), (4) identifies

14

each person or entity from whom the Expert has received compensation or funding for work in his or her

15

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

16

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

17

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

18

testimony, including through a declaration, report, or testimony at a deposition or trial, during the preceding

19

five years.

20

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

21

disclose the subject Protected Material to the identified Expert unless, within 14 days of delivering the

22

request, the Party receives a written objection from the Designating Party. Any such objection must set

23

forth in detail the grounds on which it is based.

24

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

25

(through direct voice to voice dialogue) to try to resolve the matter by agreement within seven days of the

26
27
28

1

If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the
Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality
agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating
Party regarding any such engagement.
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 10 -

1

written objection. If no agreement is reached, the Party seeking to make the disclosure to the Expert may

2

file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if

3

applicable) seeking permission from the court to do so. Any such motion must describe the circumstances

4

with specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably necessary,

5

assess the risk of harm that the disclosure would entail, and suggest any additional means that could be

6

used to reduce that risk. In addition, any such motion must be accompanied by a competent declaration

7

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

8

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

9

approve the disclosure.

10

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

11

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

12

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

13

(d) Notwithstanding the foregoing, no Party shall disclose any information or item that has been designated

14

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

15

SOURCE CODE” to any Expert (as defined in this Order) who is an employee, officer, consultant or

16

director of any Party or any competitor to any Party.

17

8.

18

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

19

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

20

CODE”]information shall not be involved in the prosecution of patents or patent applications relating to

21

gesture-controlled interface technology, including without limitation the patents asserted in this action and

22

any patent or application claiming priority to or otherwise related to the patents asserted in this action,

23

before any foreign or domestic agency, including the United States Patent and Trademark Office (“the

24

Patent Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly drafting,

25

amending, advising, or otherwise affecting the scope or maintenance of patent claims.2 To avoid any doubt,

26

“prosecution” as used in this paragraph does not include representing a party challenging a patent before a

27

domestic or foreign agency (including, but not limited to, a reissue protest, ex parte reexamination or inter

28

2

Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.

PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 11 -

1

partes reexamination or inter partes review). This Prosecution Bar shall begin when access to “HIGHLY

2

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

3

information is first received by the affected individual and shall end two (2) years after final termination of

4

this action.

5

9.

SOURCE CODE [OPTIONAL]

6

(a)

The parties do not necessarily agree that source code is properly discoverable in this case, but to

7

the extent production of source code becomes reasonably necessary, a Producing Party may designate

8

source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” if it comprises or includes confidential,

9

proprietary or trade secret source code.

10

(b)

11

to all of the protections afforded to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

12

information including the Prosecution Bar set forth in Paragraph 8, and may be disclosed only to the

13

individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be

14

disclosed, as set forth in Paragraphs 7.3 and 7.4.

15

(c)

16

it to be reasonably reviewed and searched, during normal business hours or at other mutually agreeable

17

times, at an office of the Producing Party’s counsel, to be selected by the Producing Party, or another

18

mutually agreed upon location. The source code shall be made available for inspection on a secured

19

computer in a secured room without Internet access or network access to other computers, and the

20

Receiving Party shall not copy, remove, or otherwise transfer any portion of the source code onto any

21

recordable media or recordable device. The Producing Party may visually monitor the activities of the

22

Receiving Party’s representatives during any source code review, but only to ensure that there is no

23

unauthorized recording, copying, or transmission of the source code. The Receiving Party shall keep a

24

paper log indicating the names of any individuals inspecting the source code and dates and times

25

of inspection, and the names of any individuals to whom paper copies of portions of source code

26

are provided. The Receiving Party’s representative may use a non-networked laptop computer

27

with no camera or other recording functionality to take notes during inspection.

28

(d)

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE CODE” shall be subject

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

The Receiving Party may request paper copies of limited portions of source code that are

PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 12 -

1

reasonably necessary for the preparation of court filings, pleadings, expert reports, or other papers, or for

2

deposition or trial, but shall not request paper copies for the purposes of reviewing the source code other

3

than electronically as set forth in paragraph (c) in the first instance. The Producing Party shall provide all

4

such source code in paper form including bates numbers and the label “HIGHLY CONFIDENTIAL -

5

SOURCE CODE.” The Producing Party may challenge the amount of source code requested in hard copy

6

form pursuant to the dispute resolution procedure and timeframes set forth in Paragraph 6 whereby the

7

Producing Party is the “Challenging Party” and the Receiving Party is the “Designating Party” for purposes

8

of dispute resolution.

9

(e)

The Receiving Party shall maintain a record of any individual who has inspected any portion of the

10

source code in electronic or paper form. The Receiving Party shall maintain all paper copies of any printed

11

portions of the source code in a secured, locked area. The Receiving Party shall not create any electronic or

12

other images of the paper copies and shall not convert any of the information contained in the paper copies

13

into any electronic format. The Receiving Party shall only make additional paper copies if such additional

14

copies are (1) necessary to prepare court filings, pleadings, or other papers (including a testifying expert’s

15

expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its case. Any

16

paper copies used during a deposition shall be retrieved by the Producing Party at the end of each day and

17

must not be given to or left with a court reporter or any other unauthorized individual.

18

10.

19

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

20

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

21

information or items designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

22

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must:

23

(a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena

24

or court order;

25

(b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation

26

that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such

27

notification shall include a copy of this Stipulated Protective Order; and

28

(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 13 -

1

whose Protected Material may be affected.3

2

If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order

3

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

4

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

5

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

6

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

7

protection in that court of its confidential material – and nothing in these provisions should be construed as

8

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

9

court.

10

11.

11

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

12

(a)

13

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

14

“HIGHLY CONFIDENTIAL – SOURCE CODE”. Such information produced by Non-Parties in

15

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

16

these provisions should be construed as prohibiting a Non-Party from seeking additional protections.

17

(b)

18

confidential information in its possession, and the Party is subject to an agreement with the Non-Party not

19

to produce the Non-Party’s confidential information, then the Party shall:

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

In the event that a Party is required, by a valid discovery request, to produce a Non-Party’s

20
21

1. promptly notify in writing the Requesting Party and the Non-Party that some or all
of the information requested is subject to a confidentiality agreement with a Non-Party;

22

2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in

23

this litigation, the relevant discovery request(s), and a reasonably specific description of the information

24

requested; and

25
26

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

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

27
3

28

The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to
afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from
which the subpoena or order issued.
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 14 -

1

receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s

2

confidential information responsive to the discovery request. If the Non-Party timely seeks a protective

3

order, the Receiving Party shall not produce any information in its possession or control that is subject to

4

the confidentiality agreement with the Non-Party before a determination by the court.4 Absent a court order

5

to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its

6

Protected Material.

7

12.

8

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any

9

person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving Party

10

must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use its

11

best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons to

12

whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or

13

persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit

14

A.

15

13.

16

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

17

When a Producing Party gives notice to Receiving Parties that certain produced material is subject to a

18

claim of privilege or other protection, the Receiving Party must promptly return or destroy the specified

19

information and any copies it has; must not use or disclose the information until the claim is resolved; must

20

take reasonable steps to retrieve the information if the Receiving Party disclosed it before being notified;

21

and may promptly present the matter (but not the information subject to the claim of privilege) to the court

22

under seal for a determination of the claim. The Producing Party must preserve the information until the

23

claim is resolved.

24

Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect

25

of disclosure of a communication or information covered by the attorney-client privilege or work product

26

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

27
28

4

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

PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 15 -

1

court.

2

14.

3
4

MISCELLANEOUS
14.1

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

modification by the court in the future.

5

14.2

Right to Assert Other Objections. By stipulating to the entry of this Protective Order no

6

Party waives any right it otherwise would have to object to disclosing or producing any information or item

7

on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to

8

object on any ground to use in evidence of any of the material covered by this Protective Order.

9

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

10

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

11

release of such technical data to foreign persons or nationals in the United States or elsewhere. The

12

Producing Party shall be responsible for identifying any such controlled technical data, and the Receiving

13

Party shall take measures necessary to ensure compliance.

14

14.4

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

15

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

16

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

17

must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a

18

court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule

19

79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue is

20

privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving

21

Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the

22

court, then the Receiving Party may file the Protected Material in the public record pursuant to Civil Local

23

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

24

15.

25

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

26

Party must return all Protected Material to the Producing Party or destroy such material. As used in this

27

subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other

28

format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 16 -

1

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

2

same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by category,

3

where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the

4

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

5

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

6

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

7

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

8

consultant and expert work product, even if such materials contain Protected Material. Any such archival

9

copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in

10
11

Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

12
13

DATED: /s/ Matthew C. Holohan

14

Attorneys for Plaintiff

15
16

DATED: /s/ John F. Morrow, Jr. (with permission)

17

Attorneys for Defendant

18

PURSUANT TO STIPULATION, IT IS SO ORDERED.

19
20
21

October 23, 2018
DATED: ________________________ _____________________________________
UNITED STATES DISTRICT JUDGE

22
23
24
25
26
27
28
PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 17 -

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

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

5

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

6

District of California on [date] in the case of ___________ THUNDER POWER NEW ENERGY

7

VEHICLE DEVELOPMENT COMPANY LIMITED v. BYTON NORTH AMERICA

8

CORPORATION et al Case No. 3:18-cv-03115-JST . I agree to comply with and to be bound by

9

all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to

10

so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly

11

promise that I will not disclose in any manner any information or item that is subject to this

12

Stipulated Protective Order to any person or entity except in strict compliance with the provisions

13

of this Order.

14

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

15

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

16

enforcement proceedings occur after termination of this action.

17

I hereby appoint __________________________ [print or type full name] of

18

_______________________________________ [print or type full address and telephone number] as my

19

California agent for service of process in connection with this action or any proceedings related to

20

enforcement of this Stipulated Protective Order.

21
22

Date: _________________________________

23

City and State where sworn and signed: _________________________________

24

Printed name: ______________________________

25

[printed name]

26

Signature: __________________________________

27

[signature]

28

71252769V.1

PROTECTIVE ORDER
Case No. 3:18-cv-03115-JST

- 18 -