Monolithic Power Systems, Inc. v. O2Micro International Limited

Filing 82

ORDER re 81 granting Stipulated Protective Order. Signed by Judge Claudia Wilken on 4/27/09. (scc, COURT STAFF) (Filed on 4/27/2009)

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Scott R. Mosko (State Bar No. 106070) [e-mail] FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. Stanford Research Park 3300 Hillview Avenue Palo Alto, California 94304-1203 Telephone: [phone] Facsimile: [phone] Smith R. Brittingham, IV (admitted pro hac vice) [e-mail] FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. 901 New York Avenue, N.W. Washington, D.C. 20001-4413 Telephone: [phone] Facsimile: [phone] Lionel M. Lavenue (admitted pro hac vice) [e-mail] FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. Two Freedom Square 11955 Freedom Drive Reston, Virginia 20190-5675 Telephone: [phone] Facsimile: [phone] Attorneys for Counterclaim-Defendants ASUSTEK COMPUTER INC. and ASUSTEK COMPUTER INTERNATIONAL AMERICA UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION

MONOLITHIC POWER SYSTEMS, INC., Plaintiff, v. O2 MICRO INTERNATIONAL LIMITED, Defendant.

Case No. 4:08-cv-04567-CW STIPULATED PROTECTIVE ORDER

Judge: Honorable Claudia Wilken

STIPULATED PROTECTIVE ORDER Case No. 4:08-cv-04567-CW

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O2 MICRO INTERNATIONAL LIMITED, Counterclaimant, v. MONOLITHIC POWER SYSTEMS, INC., ASUSTEK COMPUTER INC., ASUSTEK COMPUTER INTERNATIONAL AMERICA, BENQ CORPORATION, and BENQ AMERICA CORP., Counterclaim-Defendants.

I.

INTRODUCTION Each party to this action is also a party to a companion proceeding in the International Trade

Commission, more specifically called: Certain Cold Cathode Fluorescent Lamp ("CCFL") Inverter Circuits and Products Containing the Same, Investigation No. 337-TA-66 ("the ITC Proceeding"). This Court has already ordered that the discovery produced and exchanged in the ITC action shall be deemed produced and exchanged in this action. Further to that Order, the parties to this action stipulate and agree that any evidence the parties produce in the ITC Proceeding will be deemed produced in this action, and may be used in this action. On January 14, 2009, a Protective Order was entered in the ITC Proceeding. Attached to this Stipulated Protective Order as Exhibit 1 is a true and correct copy of the operative Protective Order issued in the ITC Proceeding. The parties seek to adopt the same or similar provisions of Exhibit 1 in this action. II. PURPOSES WHEREAS, documents and information may be sought, produced or exhibited by and among the parties to the above captioned proceeding, which materials relate to trade secrets or other confidential research, development or commercial information. III. PROTECTIVE ORDER PROVISIONS IT IS HEREBY ORDERED THAT: ///
STIPULATED PROTECTIVE ORDER Case No. 4:08-cv-04567-CW

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1.

Confidential business information is information which concerns or relates to

the trade secrets, processes, operations, style of work, or apparatus, or to the production, sales, shipments, purchases, transfers, identification of customers, inventories, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or other organization, or other information of commercial value, the disclosure of which is likely to cause substantial harm to the competitive position of the person, firm, partnership, corporation, or other organization from which the information was obtained. 2(a). Any information submitted, in discovery or in a pleading, motion, or response to a

motion either voluntarily or pursuant to order, in this action, which is asserted by a supplier to contain or constitute confidential business information shall be so designated by such supplier in writing, or orally at a deposition, or hearing, and shall be segregated from other information being submitted. Documents shall be clearly and prominently marked on their face with the legend: "[supplier's name] CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER," or a comparable notice. Such information, whether submitted in writing or in oral testimony, shall be treated in accordance with the terms of this protective order. (b). The Court may determine that information alleged to be confidential is not

confidential, or that its disclosure is necessary for the proper disposition of the proceeding, before, during or after the completion of the trial herein. If such a determination is made by the Court, opportunity shall be provided to the supplier of such information to argue its confidentiality prior to the time of such ruling. 3. In the absence of written permission from the supplier or an order by the Court,

any confidential documents or business information submitted in accordance with the provisions of paragraph 2 above shall not be disclosed to any person other than: (i) outside counsel for parties to this investigation, including necessary secretarial and support personnel assisting such counsel; (ii) qualified persons taking testimony involving such documents or information and necessary stenographic and clerical personnel thereof; (iii) technical experts and their staff who are employed for the purposes of this litigation (unless they are otherwise employed by, consultants to, or otherwise affiliated with a non-governmental party, or are employees of any domestic or foreign -2STIPULATED PROTECTIVE ORDER Case No. 4:08-cv-04567-CW

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manufacturer, wholesaler, retailer, or distributor of the products, devices or component parts which are the subject of this investigation); and (iv) the Court and its staff. 4. Confidential business information submitted in accordance with the provisions of

paragraph 2 above shall not be made available to any person designated in paragraph 3(iii) unless he or she shall have first read this order and shall have agreed, by signing the attachment to this Protective Order: (i) to be bound by the terms thereof; (ii) not to reveal such confidential business information to anyone other than another person designated in paragraph 3; and (iii) to utilize such confidential business information solely for purposes of this action. 5. If the Court orders, or if the supplier and all parties to this action agree, that access

to, or dissemination of information submitted as confidential business information shall be made to persons not included in paragraph 3 above, such matter shall only be accessible to, or disseminated to, such persons based upon the conditions pertaining to, and obligations arising from this order, and such persons shall be considered subject to it, unless the Court finds that the information is not confidential business information as defined in paragraph 1 hereof. 6. Without written permission from the supplying party or entity, or a court order

secured after appropriate notice to all interested parties, a Party may not file in the public record in this action any confidential business information. A Party that seeks to file under seal any confidential business information must comply with Civil L.R. 79-5. When any confidential business information submitted in accordance with paragraph 2 above is included in an authorized transcript of a deposition or exhibits thereto, arrangements shall be made with the court reporter taking the deposition to bind such confidential portions and separately label them "[supplier's name] CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER." Before a court reporter or translator receives any such information, he or she shall have first read this order and shall have agreed in writing to be bound by the terms thereof. Alternatively, he or she shall sign the agreement included as Attachment A hereto. Copies of each such signed agreement shall be provided to the supplier of such confidential business information. 7. The restrictions upon, and obligations accruing to, persons who become subject

to this order shall not apply to any information submitted in accordance with paragraph 2 above to -3STIPULATED PROTECTIVE ORDER Case No. 4:08-cv-04567-CW

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which the person asserting the confidential status thereof agrees in writing, or the Court rules, after an opportunity for hearing, was publicly known at the time it was supplied to the receiving party or has since become publicly known through no fault of the receiving party. 8. If a party to this order who is to be a recipient of any business information designated

as confidential and submitted in accordance with paragraph 2 disagrees with respect to such a designation, in full or in part, it shall notify the supplier in writing, and they will thereupon confer as to the status of the subject information proffered within the context of this order. If prior to, or at the time of such a conference, the supplier withdraws its designation of such information as being subject to this order, such supplier shall express the withdrawal, in writing, and serve such withdrawal upon all parties to this Action. If the recipient and supplier are unable to concur upon the status of the subject information submitted as confidential business information within ten days from the date of notification of such disagreement, any party to this order may raise the issue of the designation of such a status to the Court who will rule upon the matter. The Court may sua sponte question the designation of the confidential status of any information and, after opportunity for hearing, may remove the confidentiality designation. 9. No less than ten (10) days prior to the initial disclosure to a proposed expert of

any confidential information submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in writing the name of such proposed expert and his or her educational and detailed employment history to the supplier. If the supplier objects to the disclosure of such confidential business information to such proposed expert as inconsistent with the language or intent of this order or on other grounds, it shall notify the recipient in writing of its objection and the grounds therefor prior to the initial disclosure. If the dispute is not resolved on an informal basis within ten (10) days of receipt of such notice of objections, the supplier shall notice a motion before the Court to resolve the dispute. The submission of such confidential business information to such proposed expert shall be withheld pending the ruling of the Court. 10. If confidential business information submitted in accordance with paragraph 2 is

disclosed to any person other than in the manner authorized by this protective order, the party responsible for the disclosure must immediately bring all pertinent facts relating to such disclosure -4STIPULATED PROTECTIVE ORDER Case No. 4:08-cv-04567-CW

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to the attention of the supplier, and, without prejudice to other rights and remedies of the supplier, make every effort to prevent further disclosure by it or by the person who was the recipient of such information. 11. Upon final termination of this action, each recipient of confidential business

information that is subject to this order shall assemble and return to the supplier all items containing such information submitted in accordance with paragraph 2 above, including all copies of such matter which may have been made. Alternatively, the parties subject to this order may, with the written consent of the supplier, destroy all items containing confidential business information and certify to the supplier (or his counsel) that such destruction has taken place. 12. If any confidential business information which is supplied in accordance with

paragraph 2 above is supplied by a nonparty to this investigation, such a nonparty shall be considered a "supplier" as that term is used in the context of this order. 13. Each nonparty supplier shall be provided a copy of this order by the party seeking

information from said supplier. 14. If a Producing Party realizes it has inadvertently produced a document it considers to

be privileged, it may contact the Receiving Party and notify it of the inadvertent production, and the production of the document shall not constitute a waiver or impairment of any claim of privilege relating to the document; 15. To notify the Receiving Party, the Producing Party must: a. notify the Receiving Party in writing of the delivery of inadvertently produced documents; b. identify the produced documents: i. ii. by Bates stamp number designations; or by the date(s) of the document(s), the name(s) of its author(s) and the name(s) of each person to whom the document(s) were addressed; and c. 16. identify the complete basis on which the claim of privilege is asserted;

Upon receipt of the written notice pursuant to the above provision, the Receiving

Party will have five (5) business days within which it shall return or destroy the specified materials -5STIPULATED PROTECTIVE ORDER Case No. 4:08-cv-04567-CW

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and any copies thereof and may not further use or disclose the specified materials or information contained therein. If the Receiving Party disclosed the specified materials before being notified, it must take reasonable steps to retrieve it. The Receiving Party is free to challenge the assertions of a Producing Party in accordance with this paragraph, but such a challenge shall not modify or suspend its obligations under this paragraph. The Producing Party must preserve copies of the specified materials until any claim challenging the privileged nature of such materials is resolved. IT IS SO STIPULATED:

FINNEGAN, HENDERSON, FARABOW, GARRETT & DUNNER, L.L.P. /s/ Scott R. Mosko By: ____________________________________ Scott R. Mosko Attorneys for Plaintiff and CounterclaimDefendant MONOLITHIC POWER SYSTEMS, INC. and for CounterclaimDefendants ASUSTEK COMPUTER INC. and ASUSTEK COMPUTER INTERNATIONAL AMERICA Dated: March 23, 2009

COOLEY GODWARD KRONISH LLP

/s/ Chad T. Nitta By: __________________________________ Chad T. Nitta (admitted pro hac vice) Attorneys for Counterclaim-Defendants BENQ CORPORATION and BENQ AMERICA CORP.

Dated: March 23, 2009

LATHAM & WATKINS LLP

HOWREY LLP

/s/ Mark A. Flagel By: ____________________________________ Mark A. Flagel Attorneys for Plaintiff and CounterclaimDefendant MONOLITHIC POWER SYSTEMS, INC. Dated: March 23, 2009 /// /// /// /// -6-

/s/ Robert Harkins By: __________________________________ Robert Harkins Attorneys for Defendant and Counterclaimant O2 MICRO INTERNATIONAL LIMITED Dated: March 23, 2009

STIPULATED PROTECTIVE ORDER Case No. 4:08-cv-04567-CW

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I, Scott R. Mosko, declare under penalty of perjury that I received permission from Robert Harkins, Mark A. Flagel, and Chad T. Nitta to affix their electronic signatures to this document and file it with the Court.

/s/ Scott R. Mosko ______________________________________ Scott R. Mosko

ORDER IT IS SO ORDERED. 4/27/09 Dated: _________________________

_________________________________________ The Honorable Claudia Wilken United States District Judge

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505774_1.DOC

ATTACHMENT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, ________________________ [print or type full name], of _________________________ _____________________________________ [print or type full address], declare under penalty of perjury that I have read in its entirety and understand the Stipulated Protective Order that was issued by the United States District Court for the Northern District of California on ___________________ [date] in the case of Monolithic Power Systems, Inc. v. O2 Micro International Limited, Case No. 4:08-cv-04567-CW. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that failure to do so comply could expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the provisions of this Order. I further agree to submit to the jurisdiction of the United States District Court for the Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even if such enforcement proceedings occur after termination of this action. I hereby appoint _______________________ [print or type full name] of ________________ ________________________________________ [print or type full address and telephone number] as my California agent for service of process in connection with this action or any proceedings related to enforcement of this Stipulated Protective order.

Date: _____________________________________ City and State where sworn and signed: _________________________________ Printed name: ______________________________ Signature: _________________________________

STIPULATED PROTECTIVE ORDER - ATTACHMENT A Case No. 4:08-cv-04567-CW