PNY Technologies, Inc. v. Sandisk Corporation

Filing 88

STIPULATED PROTECTIVE ORDER (AS MODIFIED IN PARAGRAPHS 6.3 AND 7.4). Signed by Judge Yvonne Gonzalez Rogers on 3/13/13. (fs, COURT STAFF) (Filed on 3/13/2013)

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1 2 3 4 5 6 7 8 9 10 11 12 DANIEL B. ASIMOW (No. 165661) daniel.asimow@aporter.com AMY L. BOMSE (No. 218669) amy.bomse@aporter.com ROBERT D. HALLMAN (No. 239949) robert.hallman@aporter.com ARNOLD & PORTER LLP Three Embarcadero Center, 10th Floor San Francisco, CA 94111-4024 Telephone: 415.471.3100 Facsimile: 415.471.3400 IRA GOTTLIEB (pro hac vice) igottlieb@mccarter.com RICHARD HERNANDEZ (pro hac vice) rhernandez@mccarter.com JONATHAN SHORT (pro hac vice) jshort@mccarter.com McCARTER & ENGLISH, LLP Four Gateway Center 100 Mulberry Street Newark, New Jersey 07102 Telephone: 973.622.4444 Facsimile: 973.624.7070 13 14 Attorneys for Plaintiff PNY TECHNOLOGIES, INC. 15 16 ALLEN J. RUBY (SBN 47109) Allen.Ruby@skadden.com DAVID W. HANSEN (SBN 196958) David.Hansen@skadden.com JAMES P. SCHAEFER (SBN 250417) James.Shaefer@skadden.com SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP 525 University Avenue, Suite 1100 Palo Alto, California 94301 Telephone: 650.470.4500 Facsimile: 650.470.4570 JAMES A. KEYTE (pro hac vice) James.Keyte@skadden.com SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP Four Times Square New York, NY 10036 Telephone: 212.735.3000 Facsimile: 917.777.3000 RICHARD S. TAFFET (pro hac vice) Richard.Taffet@bingham.com BINGHAM McCUTCHEN LLP 399 Park Avenue New York, NY 10022 Telephone: 212.705.7000 Facsimile: 212.752.5378 Attorneys for Defendant SANDISK CORPORATION 17 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 OAKLAND DIVISION 21 22 PNY TECHNOLOGIES, INC. 23 24 Plaintiff, v. 25 SANDISK CORPORATION 26 Case No. 4:11-cv-04689 YGR [PROPOSED] STIPULATED PROTECTIVE ORDER INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS AS MODIFIED IN PARAGRAPHS 6.3 & 7.4 Defendant. 27 28 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 2 3 WHEREAS, Plaintiff PNY Technologies, Inc. Corporation (“SanDisk”), by and through their respective counsel of record, hereby STIPULATE AND AGREE to, and ask that the Court enter the following order: 4 5 STIPULATED PROTECTIVE ORDER 1. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 (“PNY”) and Defendant SanDisk PURPOSES AND LIMITATIONS Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in Section 14.4, below, that this Stipulated Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the standards that will be applied when a party seeks permission from the court to file material under seal. 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c). 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter. Presently limited 28 ‐1‐ [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 to Bernard Shek, Esq., of SanDisk. 2 2.5 Designating Party: a Party or Non-Party that designates information or items that it 3 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “ATTORNEYS’ 4 EYES ONLY”. 5 2.6 Disclosure or Discovery Material: all items or information, regardless of the 6 medium or manner in which it is generated, stored, or maintained (including, among other things, 7 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 8 responses to discovery in this matter. 9 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to 10 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 11 as a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s 12 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party 13 or of a Party’s competitor. 14 2.8 “ATTORNEYS’ EYES ONLY” Information or Items: extremely sensitive 15 “Confidential Information or Items,” disclosure of which to another Party or Non-Party would 16 create a substantial risk of serious harm that could not be avoided by less restrictive means. PNY 17 has requested, or may request, in this case production of documents produced or received by 18 SanDisk in other cases that were not marked "Attorneys' Eye Only Information" because the 19 operative protective orders in those cases required the use of different language, e.g., 20 "Confidential Business Information," "Outside Counsel Only," or "Highly Confidential." To 21 avoid unnecessary expense and delay, documents produced or received by SanDisk in prior 22 litigation that are stamped, marked or otherwise identified as "Confidential Business 23 Information," "Outside Counsel Only," or "Highly Confidential," or with other language 24 indicating that they should be treated as "Attorneys' Eyes Only Information" under this Order, 25 shall be treated as "Attorneys' Eyes Only Information" under this Order. In connection with the 26 production of such documents, SanDisk will inform PNY of the bates ranges containing such 27 documents and that such documents shall be treated as "Attorneys' Eyes Only Information" in this 28 -2[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR case. 1 2 2.9 House Counsel: attorneys who are employees of a party in this action. House 3 Counsel does not include Outside Counsel of Record or any other outside counsel. 4 Counsel does not include Outside Counsel of Record or any other outside counsel. 5 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 6 entity not named as a Party to this action. 7 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 8 action but are retained to represent or advise a party to this action and have appeared in this action 9 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 10 2.12 Party: any party to this action, including all of its officers, directors, employees, 11 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 12 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 13 Material in this action. 14 2.14 Professional Vendors: persons or entities that provide litigation support services 15 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 16 organizing, storing, or retrieving data in any form or medium) and their employees and 17 subcontractors. 18 2.15 Protected Material: any Disclosure or Discovery Material that is designated as 19 “CONFIDENTIAL,” or as “ATTORNEYS’ EYES ONLY.” 20 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a 21 Producing Party. 22 3. SCOPE 23 The protections conferred by this Stipulation and Order cover not only Protected Material 24 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 25 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 26 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 27 However, the protections conferred by this Stipulation and Order do not cover the following 28 -3[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 information: (a) any information that is in the public domain at the time of disclosure to a 2 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as 3 a result of publication not involving a violation of this Order, including becoming part of the 4 public record through trial or otherwise; and (b) any information known to the Receiving Party 5 prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 6 obtained the information lawfully and under no obligation of confidentiality to the Designating 7 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 8 All CONFIDENTIAL information and ATTORNEYS’ EYES ONLY information 9 produced or exchanged in the course of this case shall be used by the party or parties to whom the 10 information is produced solely for the purpose of this case. 11 4. DURATION 12 Even after final disposition of this litigation, the confidentiality obligations imposed by 13 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 14 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 15 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 16 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 17 including the time limits for filing any motions or applications for extension of time pursuant to 18 applicable law. 19 5. DESIGNATING PROTECTED MATERIAL 20 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 21 or Non-Party that designates information or items for protection under this Order must take care 22 to limit any such designation to specific material that qualifies under the appropriate standards. 23 To the extent it is practical to do so, the Designating Party must designate for protection only 24 those parts of material, documents, items, or oral or written communications that qualify – so that 25 other portions of the material, documents, items, or communications for which protection is not 26 warranted are not swept unjustifiably within the ambit of this Order. 27 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 28 -4[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 2 unnecessarily encumber or retard the case development process or to impose unnecessary 3 expenses and burdens on other parties) expose the Designating Party to sanctions. 4 If it comes to a Designating Party’s attention that information or items that it designated 5 for protection do not qualify for protection at all or do not qualify for the level of protection 6 initially asserted, that Designating Party must promptly notify all other parties that it is 7 withdrawing the mistaken designation. 8 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 9 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 10 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 11 designated before the material is disclosed or produced. 12 Designation in conformity with this Order requires: 13 (a) for information in documentary form (e.g., paper or electronic documents, 14 but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 15 Party affix the legend “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” to each page that 16 contains protected material. If only a portion or portions of the material on a page qualifies for 17 protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making 18 appropriate markings in the margins) and must specify, for each portion, the level of protection 19 being asserted. 20 A Party or Non-Party that makes original documents or materials available for inspection 21 need not designate them for protection until after the inspecting Party has indicated which 22 material it would like copied and produced. During the inspection and before the designation, all 23 of the material made available for inspection shall be deemed “ATTORNEYS’ EYES ONLY.” 24 After the inspecting Party has identified the documents it wants copied and produced, the 25 Producing Party must determine which documents, or portions thereof, qualify for protection 26 under this Order. Then, before producing the specified documents, the Producing Party must 27 affix the appropriate legend (“CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”) to each 28 -5[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 page that contains Protected Material. If only a portion or portions of the material on a page 2 qualifies for protection, the Producing Party also must clearly identify the protected portion(s) 3 (e.g., by making appropriate markings in the margins) and must specify, for each portion, the 4 level of protection being asserted. 5 (b) for testimony given in deposition or in other pretrial or trial proceedings, 6 that the Designating Party identify on the record, before the close of the deposition, hearing, or 7 other proceeding, all protected testimony and specify the level of protection being asserted. 8 When it is impractical to identify separately each portion of testimony that is entitled to protection 9 and it appears that substantial portions of the testimony may qualify for protection, the 10 Designating Party may invoke on the record (before the deposition, hearing, or other proceeding 11 is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to 12 which protection is sought and to specify the level of protection being asserted. Only those 13 portions of the testimony that are appropriately designated for protection within the 21 days shall 14 be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 15 Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, 16 that the entire transcript shall be treated as “CONFIDENTIAL” or “ATTORNEYS’ EYES 17 ONLY.” 18 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 19 other proceeding to include Protected Material so that the other parties can ensure that only 20 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 21 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 22 shall not in any way affect its designation as “CONFIDENTIAL” or “ATTORNEYS’ EYES 23 ONLY.” 24 Transcripts containing Protected Material shall have an obvious legend on the title page 25 that the transcript contains Protected Material, and the title page shall be followed by a list of all 26 pages (including line numbers as appropriate) that have been designated as Protected Material and 27 the level of protection being asserted by the Designating Party. The Designating Party shall 28 -6[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 inform the court reporter of these requirements. Any transcript that is prepared before the 2 expiration of a 21-day period for designation shall be treated during that period as if it had been 3 designated “ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the 4 expiration of that period, the transcript shall be treated only as actually designated. 5 (c) for information produced in some form other than documentary and for any 6 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 7 container or containers in which the information or item is stored the legend “CONFIDENTIAL” 8 or “ATTORNEYS’ EYES ONLY”. If only a portion or portions of the information or item 9 warrant protection, the Producing Party, to the extent practicable, shall identify the protected 10 portion(s) and specify the level of protection being asserted. 11 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 12 designate qualified information or items does not, standing alone, waive the Designating Party’s 13 right to secure protection under this Order for such material. Upon timely correction of a 14 designation, the Receiving Party must make reasonable efforts to assure that the material is 15 treated in accordance with the provisions of this Order. 16 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 18 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 19 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 20 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 21 challenge a confidentiality designation by electing not to mount a challenge promptly after the 22 original designation is disclosed. 23 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 24 process by providing written notice of each designation it is challenging and describing the basis 25 for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 26 notice must recite that the challenge to confidentiality is being made in accordance with this 27 specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 28 -7[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 good faith and must begin the process by conferring directly (in voice to voice dialogue; other 2 forms of communication are not sufficient) within 14 days of the date of service of notice. In 3 conferring, the Challenging Party must explain the basis for its belief that the confidentiality 4 designation was not proper and must give the Designating Party an opportunity to review the 5 designated material, to reconsider the circumstances, and, if no change in designation is offered, 6 to explain the basis for the chosen designation. A Challenging Party may proceed to the next 7 stage of the challenge process only if it has engaged in this meet and confer process first or 8 establishes that the Designating Party is unwilling to participate in the meet and confer process in 9 a timely manner. 10 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 11 intervention, the parties shall follow the Court’s Standing Order in Civil Cases regarding 12 Discovery and Discovery Motions. The parties may file a joint letter brief regarding retaining 13 confidentiality within 21 days of the initial notice of challenge or within 14 days of the parties 14 agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. 15 Failure by a Designating Party to file such discovery dispute letter within the applicable 21 or 14 16 day period (set forth above) with the Court shall automatically waive the confidentiality 17 designation for each challenged designation. If, after submitting a joint letter brief, the Court 18 allows that a motion may be filed, any such motion must be accompanied by a competent 19 declaration affirming that the movant has complied with the meet and confer requirements 20 imposed in the preceding paragraph. The Court, in its discretion, may elect to transfer the 21 discovery matter to a Magistrate Judge. 22 In addition, the parties may file a joint letter brief regarding a challenge to a 23 confidentiality designation at any time if there is good cause for doing so, including a challenge to 24 the designation of a deposition transcript or any portions thereof. If, after submitting a joint letter 25 brief, the Court allows that a motion may be filed, any motion brought pursuant to this provision 26 must be accompanied by a competent declaration affirming that the movant has complied with the 27 meet and confer requirements imposed by the preceding paragraph. The Court, in its discretion, 28 -8[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 may elect to transfer the discovery matter to a Magistrate Judge. 2 The burden of persuasion in any such challenge proceeding shall be on the Designating 3 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 4 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 5 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 6 file letter brief to retain confidentiality as described above, all parties shall continue to afford the 7 material in question the level of protection to which it is entitled under the Producing Party’s 8 designation until the court rules on the challenge. 9 7. ACCESS TO AND USE OF PROTECTED MATERIAL 10 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 11 or produced by another Party or by a Non-Party in connection with this case only for prosecuting, 12 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only 13 to the categories of persons and under the conditions described in this Order. When the litigation 14 has been terminated, a Receiving Party must comply with the provisions of section 15 below 15 (FINAL DISPOSITION). 16 Protected Material must be stored and maintained by a Receiving Party at a location and 17 in a secure manner that ensures that access is limited to the persons authorized under this Order. 18 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 19 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 20 disclose any information or item designated “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 22 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 23 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 24 Bound” that is attached hereto as Exhibit A; 25 (b) the officers, directors, and employees (including House Counsel) of the 26 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 27 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 28 -9[PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 (c) Experts (as defined in this Order) of the Receiving Party to whom 2 disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment 3 and Agreement to Be Bound” (Exhibit A); 4 (d) the court and its personnel; 5 (e) court reporters and their staff, professional jury or trial consultants, mock 6 jurors participating in trial preparation proceedings and who have signed an Undertaking 7 approved in form by the Designating Party, and Professional Vendors to whom disclosure is 8 reasonably necessary for this litigation and who have signed the “Acknowledgment and 9 Agreement to Be Bound” (Exhibit A); 10 (f) during their depositions, witnesses in the action to whom disclosure is 11 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 12 (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 13 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 14 separately bound by the court reporter and may not be disclosed to anyone except as permitted 15 under this Stipulated Protective Order. 16 (g) the author or recipient of a document containing the information or a 17 custodian or other person who otherwise possessed or knew the information. 18 7.3 Disclosure of “ATTORNEYS’ EYES ONLY” Information or Items. Unless 19 otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving 20 Party may disclose any information or item designated “ATTORNEYS’ EYES ONLY” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 22 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 23 information for this litigation and who have signed the “Acknowledgment and Agreement to Be 24 Bound” that is attached hereto as Exhibit A; 25 (b) Designated House Counsel (1) who has no involvement in competitive 26 decision-making, (2) to whom disclosure is reasonably necessary for this litigation, and (3) who 27 has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A). Presently, only 28 - 10 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 Bernard Shek, House Counsel at SanDisk is Designated House Counsel. The parties agree to 2 meet and confer should either party wish to designate another person. 3 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably 4 necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be 5 Bound” (Exhibit A), and (3) who are not a current officer, director, or employee of a competitor 6 of a Party or anticipated to become one; 7 (d) the court and its personnel; 8 (e) court reporters and their staff, professional jury or trial consultants, mock 9 jurors participating in trial preparation proceedings and who have signed an Undertaking 10 approved in form by the Designating Party, and Professional Vendors to whom disclosure is 11 reasonably necessary for this litigation and who have signed the “Acknowledgment and 12 Agreement to Be Bound” (Exhibit A); and 13 (f) the author or recipient of a document containing the information or a 14 custodian or other person who otherwise possessed or knew the information. 15 7.4 PROCEDURES FOR APPROVING OR OBJECTING TO DISCLOSURE OF 16 “ATTORNEYS’ EYES ONLY” INFORMATION OR ITEMS TO EXPERTS 17 (a) Unless otherwise ordered by the court or agreed to in writing by the 18 Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any 19 information or item that has been designated “ATTORNEYS’ EYES ONLY” pursuant to 20 paragraph 7.3(c) first must make a written request to the Designating Party that (1) sets forth the 21 full name of the Expert and the city and state of his or her primary residence, (2) attaches a copy 22 of the Expert’s current resume, (3) identifies the Expert’s current employer(s), (4) identifies each 23 person or entity from whom the Expert has received compensation or funding for work in his or 24 her areas of expertise or to whom the expert has provided professional services, including in 25 connection with a litigation, at any time during the preceding five years (if the Expert believes 26 any of this information is subject to a confidentiality obligation to a third-party, the Expert shall 27 provide whatever information the Expert believes can be disclosed without violating any 28 - 11 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 confidentiality agreements, and shall make an affirmative representation that such services have 2 or have not involved participants in the flash memory industry), and (5) identifies (by name and 3 number of the case, filing date, and location of court) any litigation in connection with which the 4 Expert has offered expert testimony, including through a declaration, report, or testimony at a 5 deposition or trial, during the preceding five years. 6 (b) A Party that makes a request and provides the information specified in the 7 preceding respective paragraphs may disclose the subject Protected Material to the identified 8 Expert unless, within 14 days of delivering the request, the Party receives a written objection 9 from the Designating Party. Any such objection must set forth in detail the grounds on which it is 10 based. 11 (c) A Party that receives a timely written objection must meet and confer with 12 the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 13 agreement within seven days of the written objection. If no agreement is reached, the parties 14 shall follow the Court’s Standing Order in Civil Cases regarding Discovery and Discovery 15 Motions. The parties shall follow the Court’s Standing Order in Civil Cases regarding Discovery 16 and Discovery Motions. Any such joint letter brief must describe the circumstances with 17 specificity, set forth in detail the reasons why the disclosure to the Expert is reasonably necessary, 18 assess the risk of harm that the disclosure would entail, and suggest any additional means that 19 could be used to reduce that risk. In addition, any such joint letter brief must be accompanied by 20 a competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e., the 21 extent and the content of the meet and confer discussions) and setting forth the reasons advanced 22 by the Designating Party for its refusal to approve the disclosure. 23 In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden 24 of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) 25 outweighs the Receiving Party’s need to disclose the Protected Material to its Expert. 26 27 28 - 12 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 8. 1 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 2 3 If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as “CONFIDENTIAL” or 4 “ATTORNEYS’ EYES ONLY” that Party must: 5 6 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 7 8 (b) promptly notify in writing the party who caused the subpoena or order to issue 9 the other litigation that some or all of the material covered by the subpoena or order is in subject to this Protective Order. 10 Such notification shall include a copy of this Stipulated Protective Order; and 11 12 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected. 13 14 If the Designating Party timely seeks a protective order, the Party served with the subpoena or court order shall not produce any information designated in this action as 15 “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY” before a determination by the court from 16 which the subpoena or order issued, unless the Party has obtained the Designating Party’s 17 permission. The Designating Party shall bear the burden and expense of seeking protection in 18 that 19 court of its confidential material – and nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 20 another court. 21 9. 22 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION 23 24 (a) The terms of this Order are applicable to information produced by a Non- Party in this action and designated as “CONFIDENTIAL” or “ATTORNEYS’ EYES ONLY”. 25 Such information produced by Non-Parties in connection with this litigation is protected by the 26 remedies and relief provided by this Order. Nothing in these provisions should be construed as 27 prohibiting a Non-Party from seeking additional protections. 28 - 13 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 (b) In the event that a Party is required, by a valid discovery request, to 2 produce a Non-Party’s confidential information in its possession, and the Party is subject to an 3 agreement with the Non-Party not to produce the Non-Party’s confidential information, then the 4 Party shall: 5 1. promptly notify in writing the Requesting Party and the Non-Party 6 that some or all of the information requested is subject to a confidentiality agreement with a Non7 Party; 8 2. promptly provide the Non-Party with a copy of the Stipulated 9 Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific 10 description of the information requested; and 11 3. make the information requested available for inspection by the 12 Non-Party. 13 (c) If the Non-Party fails to object or seek a protective order from this court 14 within 14 days of receiving the notice and accompanying information, the Receiving Party may 15 produce the Non-Party’s confidential information responsive to the discovery request. If the 16 Non-Party timely seeks a protective order, the Receiving Party shall not produce any information 17 in its possession or control that is subject to the confidentiality agreement with the Non-Party 18 before a determination by the court. Absent a court order to the contrary, the Non-Party shall 19 bear the burden and expense of seeking protection in this court of its Protected Material. 20 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 21 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 22 Material to any person or in any circumstance not authorized under this Stipulated Protective 23 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 24 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 25 Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 26 made of all the terms of this Order, and (d) request such person or persons to execute the 27 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 28 - 14 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 11. 1 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL. 2 3 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 4 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 5 provision is not intended to modify whatever procedures may be established in an e-discovery 6 order 7 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 8 communication or information covered by the attorney- client privilege or work product 9 protection, the parties may incorporate their agreement in the stipulated protective order 10 submitted to the court. 11 12. 12 MISCELLANEOUS 13 12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek14 modification by the court in the future. its 15 12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no Party waives any right it otherwise would have to object to disclosing or producing any 16 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 17 no Party waives any right to object on any ground to use in evidence of any of the material 18 covered by this Protective Order. 19 20 12.3 Export Control. Disclosure of Protected Material shall be subject to all applicable laws21 regulations relating to the export of technical data contained in such Protected Material, and including the release of such technical data to foreign persons or nationals in the United States or 22 elsewhere. The Producing Party shall be responsible for identifying any such controlled technical 23 data, and the Receiving Party shall take measures to ensure compliance. 24 25 12.4 Filing Protected Material. Without written permission from the Designating Party or a 26 court order secured after appropriate notice to all interested persons, a Party may not file in the public record in this action any Protected Material. A Party that seeks to file under seal any 27 Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected 28 - 15 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 Material may only be filed under seal pursuant to a court order authorizing the sealing of the 2 specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a 3 sealing order will issue only upon a request establishing that the Protected Material at issue is 4 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a 5 Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 796 5(d) and General Order 62 is denied by the court, then the Receiving Party may file the Protected 7 Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by 8 the court. 9 13. FINAL DISPOSITION 10 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 11 Receiving Party must return all Protected Material to the Producing Party or destroy such 12 material. As used in this subdivision, “all Protected Material” includes all copies, abstracts, 13 compilations, summaries, and any other format reproducing or capturing any of the Protected 14 Material. Whether the Protected Material is returned or destroyed, the Receiving Party must 15 submit a written certification to the Producing Party (and, if not the same person or entity, to the 16 Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all 17 the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 18 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 19 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 20 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 21 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 22 product, and consultant and expert work product, even if such materials contain Protected 23 Material. Any such archival copies that contain or constitute Protected Material remain subject to 24 this Protective Order as set forth in Section 4. 25 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 26 27 28 - 16 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 DATED: March 5, 2013. 2 ARNOLD & PORTER LLP By: /s/ Daniel B. Asimow DANIEL B. ASIMOW 3 Attorneys for Plaintiff PNY TECHNOLOGIES, INC. 4 5 DATED: March 5, 2013. 6 SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP By: /s/ David W. Hansen DAVID W. HANSEN 7 8 Attorneys for Defendant SANDISK CORPORATION 9 PURSUANT TO STIPULATION, IT IS SO ORDERED. 10 DATED: March 13 , 2013. 11 12 YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 17 - [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 FILER’S ATTESTATION 2 I, Daniel B. Asimow, am the ECF user whose identification and password are being used 3 to file this [PROPOSED] STIPULATED PROTECTIVE ORDER INVOLVING PATENTS, 4 HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS. 5 In compliance with General Order 45.X.B, I hereby attest that David W. Hansen concurs in this 6 filing. 7 /s/ Daniel B. Asimow 8 DANIEL B. ASIMOW 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 [PROPOSED] STIPULATED PROTECTIVE ORDER No. 4-11-cv-04689 YGR 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 4 5 6 7 8 9 10 11 12 I, 15 18 19 or type full name], 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 [___________________] in the case of PNY Technologies, Inc. v. SanDisk Corporation, Case No. 4:11-cv-04689 YGR. 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 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. 16 17 [print _________________________________ [print or type full address], declare under penalty of 13 14 _____________________________ 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. 20 21 Date: 22 City and State where sworn and signed: 23 Printed name: 24 25 [printed name] Signature: [signature] 26 27 28 EXHIBIT A TO PROTECTIVE ORDER No. 4-11-cv-04689 YGR

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