Hatamian et al v. Advanced Micro Devices, Inc. et al

Filing 154

STIPULATION AND PROTECTIVE ORDER REGARDING ATTORNEYS' EYES ONLY MATERIALS [MODIFED BY THE COURT AT 6.3]. Signed by Judge Yvonne Gonzalez Rogers on 10/8/15. (fs, COURT STAFF) (Filed on 10/8/2015)

1
2
3
4
5
6
7
8
9
10
11

LATHAM & WATKINS LLP
Patrick E. Gibbs (Bar No. 183174)
Matthew Rawlinson (Bar No. 231890)
140 Scott Drive
Menlo Park, California 94025
Telephone: [phone]
Facsimile: +1.650.463.2600
[e-mail]
[e-mail]
LATHAM & WATKINS LLP
Melanie Blunschi (Bar No. 234264)
505 Montgomery Street, Suite 2000
San Francisco, California, 94111
Telephone: [phone]
Facsimile: +1.415.395.8095
[e-mail]
Attorneys for Defendants
Advanced Micro Devices, Inc.,
Rory P. Read, Thomas J. Seifert,
Richard A. Bergman, and Lisa T. Su

12
13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16
17

BABAK HATAMIAN and LUSSA DENNJ
SALVATORE, individually and on behalf of
all others similarly situated,
Plaintiffs,

18
19
20
21
22

v.
ADVANCED MICRO DEVICES, INC.,
RORY P. READ, THOMAS J. SEIFERT,
RICHARD A. BERGMAN AND LISA T.
SU,

CASE NO. 4:14-cv-00226-YGR
STIPULATION AND [PROPOSED]
PROTECTIVE ORDER REGARDING
ATTORNEYS’ EYES ONLY
MATERIALS
*MODIFIED BY THE COURT AT ¶ 6.3*

Defendants.

23
24
25
26
27
28
ATTORNEYS AT LAW
SILICON VALLEY

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

1.

2

PURPOSES AND LIMITATIONS
This Stipulation and [Proposed] Protective Order Regarding Attorneys’ Eyes Only

3

Materials (“AEO Order”) supplements the Stipulation Regarding Confidentiality and Protective

4

Order (“Protective Order”) dated August 10, 2015 [Dkt. 136]. The AEO Order shall supersede

5

the Protective Order only with respect to materials designated either “HIGHLY

6

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

7

ATTORNEYS’ EYES ONLY.” The Protective Order remains applicable to all other types of

8

confidential materials.

9

Disclosure and discovery activity in this action will involve production of confidential,

10

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

11

use for any purpose other than prosecuting this litigation may be warranted. Accordingly, the

12

parties hereby stipulate to and petition the court to enter the following Stipulated AEO Protective

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

material under seal.

21

2.

22
23
24

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

25

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

26

of Civil Procedure 26(c).

27
28
ATTORNEYS AT LAW
SILICON VALLEY

2.3

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

well as their support staff).
1

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1
2
3

2.4

Designated House Counsel: House Counsel who seek access to “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
2.5

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

4

it produces in disclosures or in responses to discovery as “HIGHLY CONFIDENTIAL –

5

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

6

ONLY.”

7

2.6

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

8

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

9

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

10
11

responses to discovery in this matter.
2.7

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

12

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

13

consultant in this action..

14

2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

15

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

16

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

17

less restrictive means.

18

2.9

“HIGHLY CONFIDENTIAL – CW – ATTORNEYS’ EYES ONLY” Information

19

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

20

anyone other than Outside Counsel of Record in this Action, would create a substantial risk of

21

serious harm that could not be avoided by less restrictive means.

22
23
24
25
26
27

2.10

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

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.11

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

entity not named as a Party to this action.
2.12

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

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

28
ATTORNEYS AT LAW
SILICON VALLEY

2

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

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

2

that party.

3
4

2.13

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

5
6

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

2.14

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

Material in this action.

7

2.15

Professional Vendors: persons or entities that provide litigation support services

8

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

9

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

10

subcontractors.

11

2.16

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

12

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

13

“HIGHLY CONFIDENTIAL – CW – ATTORNEYS’ EYES ONLY.”

14

2.17

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

15

Producing Party.

16

3.

17

SCOPE
The protections conferred by this Stipulated AEO Protective Order cover not only

18

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

19

Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material;

20

and (3) any testimony, conversations, or presentations by Parties or their Counsel that might

21

reveal Protected Material. However, the protections conferred by this Stipulated AEO Protective

22

Order do not cover the following information: (a) any information that is in the public domain at

23

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

24

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

25

including becoming part of the public record through trial or otherwise; and (b) any information

26

known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the

27

disclosure from a source who obtained the information lawfully and under no obligation of

28
ATTORNEYS AT LAW
SILICON VALLEY

3

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed

2

by a separate agreement or order.

3

4.

DURATION

4

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

5

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

6

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

7

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

8

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

9

action, including the time limits for filing any motions or applications for extension of time

10

pursuant to applicable law.

11

5.

12

DESIGNATING PROTECTED MATERIAL
5.1

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

13

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

14

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

15

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

16

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

17

that other portions of the material, documents, items, or communications for which protection is

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

withdrawing the mistaken designation. In addition, the parties shall meet and confer in advance

27

of any request to file documents under seal with the Court.

28
ATTORNEYS AT LAW
SILICON VALLEY

4

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

5.2

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

2

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

3

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

4

designated before the material is disclosed or produced.

5

Designation in conformity with this Order requires:

6

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

7

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

8

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

9

“HIGHLY CONFIDENTIAL – CW – ATTORNEYS’ EYES ONLY” to each page that contains

10

protected material. If only a portion or portions of the material on a page qualifies for protection,

11

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

12

appropriate markings in the margins) and must specify, for each portion, the level of protection

13

being asserted.

14

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

15

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

16

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

17

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

18

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

19

ONLY”). After the inspecting Party has identified the documents it wants copied and produced,

20

the Producing Party must determine which documents, or portions thereof, qualify for protection

21

under this Order. Then, before producing the specified documents, the Producing Party must

22

affix the appropriate legend (“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

23

“HIGHLY CONFIDENTIAL – CW – ATTORNEYS’ EYES ONLY”) to each page that contains

24

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

25

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

26

appropriate markings in the margins) and must specify, for each portion, the level of protection

27

being asserted.

28
ATTORNEYS AT LAW
SILICON VALLEY

5

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

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

2

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

3

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

4

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

5

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

6

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

7

concluded) a right to have up to 30 days from receipt of the final transcript to identify the

8

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

9

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

10

for protection within the 30 days shall be covered by the provisions of this Stipulated AEO

11

Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 30

12

days afterwards if that period is properly invoked, that the entire transcript shall be treated as

13

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

14

– CW – ATTORNEYS’ EYES ONLY.”

15

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

16

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

17

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

18

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

19

shall not in any way affect its designation as “HIGHLY CONFIDENTIAL – ATTORNEYS’

20

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

21

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

22

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

23

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

24

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

25

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

26

expiration of a 30-day period for designation shall be treated during that period as if it had been

27

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

28
ATTORNEYS AT LAW
SILICON VALLEY

6

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

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

2

actually designated.

3

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

4

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

5

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

6

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

7

ATTORNEYS’ EYES ONLY”. If only a portion or portions of the information or item warrant

8

protection, the Producing Party, to the extent practicable, shall identify the protected portion(s)

9

and specify the level of protection being asserted.

10

5.3

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

11

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

12

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

13

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

14

treated in accordance with the provisions of this Order.

15

6.

16

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

17

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

18

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

19

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

20

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

21

original designation is disclosed.

22

6.2

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

23

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

24

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

25

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

26

specific paragraph of the Stipulated AEO Protective Order. The parties shall attempt to resolve

27

each challenge in good faith and must begin the process by conferring directly (in voice to voice

28

dialogue; other forms of communication are not sufficient) within 14 days of the date of service

ATTORNEYS AT LAW
SILICON VALLEY

7

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

of notice. In conferring, the Challenging Party must explain the basis for its belief that the

2

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

3

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

4

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

5

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

6

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

7

process in a timely manner.

8
9

6.3

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

intervention, the parties shall follow the Court’s Standing Order in Civil Cases regarding

10

Discovery and Discovery Motions. The parties may file a joint letter brief regarding retaining

11

confidentiality within 21 days of the initial notice of challenge or within 14 days of the parties

12

agreeing that the meet and confer process will not resolve their dispute, whichever is earlier.

13

Failure by a Designating Party to file such discovery dispute letter within the applicable 21 or 14

14

day period (set forth above) with the Court shall automatically waive the confidentiality

15

designation for each challenged designation. If, after submitting a joint letter brief, the Court

16

allows that a motion may be filed, any such motion must be accompanied by a competent

17

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

18

imposed in the preceding paragraph. The Court, in its discretion, may elect to transfer the

19

discovery matter to a Magistrate Judge.

20

In addition, the parties may file a joint letter brief regarding a challenge to a

21

confidentiality designation at any time if there is good cause for doing so, including a challenge

22

to the designation of a deposition transcript or any portions thereof. If, after submitting a joint

23

letter brief, the Court allows that a motion may be filed, any motion brought pursuant to this

24

provision must be accompanied by a competent declaration affirming that the movant has

25

complied with the meet and confer requirements imposed by the preceding paragraph. The

26

Court, in its discretion, may elect to refer the discovery matter to a Magistrate Judge.

27

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

28

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

ATTORNEYS AT LAW
SILICON VALLEY

8

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

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

2

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

3

file a letter brief to retain confidentiality as described above, all parties shall continue to afford

4

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

5

designation until the court rules on the challenge.

6

7.

7

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

8

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

9

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

10

disclosed only to the categories of persons and under the conditions described in this Order.

11

When the litigation has been terminated, a Receiving Party must comply with the provisions of

12

section 13 below (FINAL DISPOSITION).

13

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

14

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

15

7.2

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

16

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

17

Unless otherwise ordered by the court or permitted in writing by the Designating Party, a

18

Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL

19

– ATTORNEYS’ EYES ONLY” only to:

20

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

21

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

22

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

23

Bound” that is attached hereto as Exhibit A;

24

(b) Designated House Counsel of the Receiving Party (1) to whom disclosure is

25

reasonably necessary for this litigation, (2) who has signed the “Acknowledgment and

26

Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph

27

7.4(a)(1), below, have been followed;

28
ATTORNEYS AT LAW
SILICON VALLEY

9

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

(c) Experts of the Parties (1) to whom disclosure is reasonably necessary for this

2

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

3

and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed;

4

(d) a mediator engaged by Counsel of Record and any staff;

5

(e) the court and its personnel;

6

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

7

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

8

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

9
10

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

11

“HIGHLY CONFIDENTIAL – CW – ATTORNEYS’ EYES ONLY” Information

12

or Items may only be disclosed to the parties identified in sections 7.2(a) and (e) of this

13

Stipulated AOE Protective Order.

14

7.3

Procedures for Approving or Objecting to Disclosure of “HIGHLY

15

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items to Designated House

16

Counsel or Experts.

17

(a)(1) Unless otherwise ordered by the court or agreed to in writing by the

18

Designating Party, a Party that seeks to disclose to Designated House Counsel any information

19

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

20

pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that sets

21

forth the full name of the Designated House Counsel and the city and state of his or her

22

residence.

23

(a)(2) Unless otherwise ordered by the court or agreed to in writing by the

24

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

25

information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’

26

EYES ONLY” pursuant to paragraph 7.3(c) first must make a written request to the Designating

27

Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’

28

EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert,

ATTORNEYS AT LAW
SILICON VALLEY

10

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

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

2

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

3

employer(s), (5) identifies each person or entity from whom the Expert has received

4

compensation or funding for work in his or her areas of expertise or to whom the expert has

5

provided professional services, including in connection with a litigation, at any time during the

6

preceding five years, and (6) identifies (by name and number of the case, filing date, and location

7

of court) any litigation in connection with which the Expert has offered expert testimony,

8

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

9

five years.

10

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

11

preceding respective paragraphs may disclose the subject Protected Material to the identified

12

Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party

13

receives a written objection from the Designating Party. Any such objection must set forth in

14

detail the grounds on which it is based.

15

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

16

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

17

agreement within 7 days of the written objection. If no agreement is reached, the Party seeking to

18

make the disclosure to Designated House Counsel or the Expert may file a motion as provided in

19

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking

20

permission from the court to do so. Any such motion must describe the circumstances with

21

specificity, set forth in detail the reasons why the disclosure to Designated House Counsel or the

22

Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and

23

suggest any additional means that could be used to reduce that risk. In addition, any such motion

24

must be accompanied by a competent declaration describing the parties’ efforts to resolve the

25

matter by agreement (i.e., the extent and the content of the meet and confer discussions) and

26

setting forth the reasons advanced by the Designating Party for its refusal to approve the

27

disclosure.

28
ATTORNEYS AT LAW
SILICON VALLEY

11

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

In any such proceeding, the Party opposing disclosure to Designated House Counsel or

2

the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail

3

(under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

4

Material to its Designated House Counsel or Expert.

5

8.

6

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

7
disclosure of any information or items designated in this action as “HIGHLY CONFIDENTIAL
8
– ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – CW – ATTORNEYS’
9
EYES ONLY” that Party must:
10
(a) promptly notify in writing the Designating Party. Such notification shall
11
include a copy of the subpoena or court order;
12
(b) promptly notify in writing the party who caused the subpoena or order to issue
13
in the other litigation that some or all of the material covered by the subpoena or order is subject
14
to this Stipulated AEO Protective Order. Such notification shall include a copy of this Stipulated
15
AEO Protective Order; and
16
(c) cooperate with respect to all reasonable procedures sought to be pursued by
17
the Designating Party whose Protected Material may be affected.
18
If the Designating Party timely seeks a protective order, the Party served with the
19
subpoena or court order shall not produce any information designated in this action as “HIGHLY
20
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – CW –
21
ATTORNEYS’ EYES ONLY” before a determination by the court from which the subpoena or
22
order issued, unless the Party has obtained the Designating Party’s permission. The Designating
23
Party shall bear the burden and expense of seeking protection in that court of its confidential
24
material – and nothing in these provisions should be construed as authorizing or encouraging a
25
Receiving Party in this action to disobey a lawful directive from another court.
26
27
28
ATTORNEYS AT LAW
SILICON VALLEY

12

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

9.

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

2
(a)

3

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

4

Party in this action and designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

5

ONLY” or “HIGHLY CONFIDENTIAL – CW – ATTORNEYS’ EYES ONLY.” Such

6

information produced by Non-Parties in connection with this litigation is protected by the

7

remedies and relief provided by this Order. Nothing in these provisions should be construed as

8

prohibiting a Non-Party from seeking additional protections.
(b)

9

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

10

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

11

agreement with the Non-Party not to produce the Non-Party’s confidential information, then the

12

Party shall:
1.

13

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

14

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

15

Non-Party;
2.

16

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

17

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

18

description of the information requested; and
3.

19
20
21

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

22

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

23

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

24

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

25

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

26

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

27

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

28
ATTORNEYS AT LAW
SILICON VALLEY

13

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

10.

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

11.

10
11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

submitted to the court.

20
21
22
23

12.

MISCELLANEOUS
12.1

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

seek its modification by the court in the future.
12.2

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

24

AEO Protective Order, no Party waives any right it otherwise would have to object to disclosing

25

or producing any information or item on any ground not addressed in this Stipulated AEO

26

Protective Order. Similarly, no Party waives any right to object on any ground to use in

27

evidence of any of the material covered by this Stipulated AEO Protective Order.

28
ATTORNEYS AT LAW
SILICON VALLEY

14

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

12.3

Filing Protected Material. Without written permission from the Designating Party

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

13.

13

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

14

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

15

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

16

compilations, summaries, and any other format reproducing or capturing any of the Protected

17

Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

18

submit a written certification to the Producing Party (and, if not the same person or entity, to the

19

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

20

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has

21

not retained any copies, abstracts, compilations, summaries or any other format reproducing or

22

capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

23

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

24

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

25

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

26

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

27

this Stipulated AEO Protective Order as set forth in Section 4 (DURATION).

28
ATTORNEYS AT LAW
SILICON VALLEY

15

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1
2

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: October 6, 2015

Respectfully submitted,

3

LATHAM & WATKINS LLP

4

By:

/s/ Patrick E. Gibbs
Patrick E. Gibbs

5

Attorney for Defendants ADVANCED MICRO
DEVICES, INC., RORY P. READ, THOMAS J.
SEIFERT, RICHARD A. BERGMAN, AND LISA T. SU

6
7
8

///

9
Dated: October 6, 2015
10
11

Respectfully submitted,
LABATON SUCHAROW LLP
By:

/s/ Jonathan Gardner
Jonathan Gardner

12

Attorney for Lead Plaintiffs KBC ASSET
MANAGEMENT NV and ARKANSAS TEACHER
RETIREMENT SYSTEM

13
14
15

Dated: October 6, 2015

16

Respectfully submitted,
MOTLEY RICE LLC

17

By:

/s/ James Hughes
James Hughes

18

Attorney for Lead Plaintiffs KBC ASSET
MANAGEMENT NV and ARKANSAS TEACHER
RETIREMENT SYSTEM

19
20
21
22
23
24

PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: _____________ 2015
October 8,

_____________________________________________
THE HON. YVONNE GONZALEZ ROGERS
United States District Judge

25
26
27
28
ATTORNEYS AT LAW
SILICON VALLEY

16

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1
2
3
4
5
6
7
8
9

LATHAM & WATKINS LLP
Patrick E. Gibbs (Bar No. 183174)
Matthew Rawlinson (Bar No. 231890)
140 Scott Drive
Menlo Park, California 94025
Telephone: [phone]
Facsimile: +1.650.463.2600
[e-mail]
[e-mail]
LATHAM & WATKINS LLP
Melanie Blunschi (Bar No. 234264)
505 Montgomery Street, Suite 2000
San Francisco, California, 94111
Telephone: [phone]
Facsimile: +1.415395.8095
[e-mail]

10
11
12

Attorneys for Defendants
Advanced Micro Devices, Inc.,
Rory P. Read, Thomas J. Seifert,
Richard A. Bergman, and Lisa T. Su

13
UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15
16
17

BABAK HATAMIAN and LUSSA DENNJ
SALVATORE, individually and on behalf of
all others similarly situated,
Plaintiffs,

18
19

CASE NO. 14-cv-00226-YGR

NON-DISCLOSURE CERTIFICATE

v.

21

ADVANCED MICRO DEVICES, INC.,
RORY P. READ, THOMAS J. SEIFERT,
RICHARD A. BERGMAN, AND LISA
T. SU,

22

Defendants.

20

23
24

I certify my understanding that access to materials designated as “HIGHLY

25

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

26

ATTORNEYS’ EYES ONLY” is provided to me pursuant to the terms and restriction of a

27

Stipulation Protective Order Regarding Attorneys’ Eyes Only Materials entered in the above-

28

captioned litigation on ________________________ (the “AEO Protective Order”). I certify

ATTORNEYS AT LAW
SILICON VALLEY

17

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR

1

that I have been given a copy of, and have read, the Order and agree to comply with its terms. I

2

understand that the contents of any material designated “HIGHLY CONFIDENTIAL –

3

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

4

ONLY,” and any notes or other memoranda or any other forms of information which copy or

5

disclose material designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

6

“HIGHLY CONFIDENTIAL – CW – ATTORNEYS’ EYES ONLY,” shall not be disclosed to

7

anyone other than in accordance with the Order and shall be used only for the purposes set forth

8

therein.

9
10

I agree to be subject to the jurisdiction of this Court for purposes of enforcement of this
Non-Disclosure Certificate and the Order.

11
12

By: ____________________________________

13
14

Title: __________________________________

15
16

Representing: ___________________________

17
18

Date: __________________________________

19
20
21
22
23
24
25
26
27
28
ATTORNEYS AT LAW
SILICON VALLEY

18

STIPULATION AND [PROPOSED] PROTECTIVE
ORDER REGARDING AEO MATERIALS
CASE NO. 4:14-CV-00226-YGR