Synchronoss Technologies, Inc. v. Egnyte, Inc.

Filing 81

ORDER by Judge Kandis A. Westmore granting 76 Stipulated Protective Order. (kawlc1, COURT STAFF) (Filed on 4/28/2017)

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[Counsel listed on signature page] 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 OAKLAND DIVISION 10 11 12 13 SYNCHRONOSS TECHNOLOGIES, INC., 14 Case No. 4:16-cv-00120-HSG Plaintiff, 15 v. 16 STIPULATED PROTECTIVE ORDER EGNYTE, NC. 17 18 Hon. Haywood S. Gilliam, Jr. Defendant. __________________________________________ 19 20 21 22 23 24 25 26 27 1 1 STIPULATED PROTECTIVE ORDER 2 1. PURPOSES AND LIMITATIONS 3 Disclosure and discovery activity in this action (“Action”) are likely to involve 4 production of confidential, proprietary, or private information for which special protection from 5 public disclosure and from use for any purpose other than prosecuting this litigation may be 6 warranted. Accordingly, Plaintiff Synchronoss Technologies, Inc. (“Synchronoss”) and 7 Defendant Egnyte, Inc. (“Egnyte”) (each a “Party,” and collectively, the “Parties”) hereby 8 stipulate to and petition the court to enter the following Stipulated Protective Order (“Protective 9 Order”). This Protective Order shall govern all discovery and information (whether or not 10 embodied in any physical medium) exchanged during the Action, including but not limited to 11 documents produced by the parties or non-parties, testimony taken at a hearing or other 12 proceeding, deposition testimony, interrogatory answers, and responses to requests for 13 admission. 14 The parties acknowledge that this Order does not confer blanket protections on all 15 disclosures or responses to discovery and that the protection it affords from public disclosure 16 and use extends only to the limited information or items that are entitled to confidential 17 treatment under the applicable legal principles. The parties ffirther acknowledge, as set forth in 18 Section 14.4, below, that this Stipulated Protective Order does not entitle them to file 19 confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must 20 be followed and the standards that will be applied when a Party seeks permission from the court 21 to file material under seal. 22 1.1. DISCOVERY RULES REMAIN UNCHANGED 23 Nothing herein shall alter or change in any way the discovery or disclosure provisions 24 of the Federal Rules of Civil Procedure or the Local Rules of this Court. Identification of any 25 individual pursuant to this Protective Order does not make that individual available for 26 deposition or any other form of discovery outside of the restrictions and procedures of the 27 Federal Rules of Civil Procedure and the Court’s deadlines and procedures set out in the 2 I applicable Scheduling Order. Nothing in this Order shall be construed to require a Party to 2 produce or disclose information not otherwise required to be produced under the applicable 3 rules or orders of this Court. 4 2. DEFINITIONS 5 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 6 7 information or items under this Order. 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is 8 generated, stored or maintained) or tangible things that qualify for protection under Federal 9 Rule of Civil Procedure 26(c). 10 11 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 12 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY 13 CONFIDENTIAL 14 2.5 — ATTORNEYS’ EYES ONLY” information in this matter. Designating Party: a Party or Non-Party that designates information or items 15 that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or 16 “HIGHLY 17 CONFIDENTIAL 18 2.6 CONFIDENTIAL - - ATTORNEYS’ EYES ONLY” or “HIGHLY SOURCE CODE”. Disclosure or Discovery Material: all items or information, regardless of the 19 medium or manner in which it is generated, stored, or maintained (including, among other 20 things, testimony, transcripts, and tangible things), that are produced or generated in disclosures 21 or responses to discovery in this matter. 22 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent 23 to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness 24 or as a consultant in this action, (2) is not a past or cu~ent employee of a Party or of a Party’s 25 competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party 26 or of a Party’s competitor. 27 3 1 2.8 “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or 2 Items: extremely sensitive “CONFIDENTIAL Information or Items,” disclosure of which to 3 another Party or Non-Party would create a substantial risk of serious harm that could not be 4 avoided by less restrictive means. 5 2.9 “HIGHLY CONFIDENTIAL — SOURCE CODE” Information or Items: 6 extremely sensitive “CONFIDENTIAL Information or Items” representing human-readable 7 programming 8 functionalities, and any of the associated comments and revision histories, formulas, 9 engineering specifications, or schematics that define or otherwise describe in detail the 10 algorithms or structure of software or hardware designs, disclosure of which to another Party or 11 Non-Party would create a substantial risk of serious harm that could not be avoided by less 12 restrictive means. 13 14 15 16 17 language text or computer code 2.10 defining firmware and/or software 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. 2.12 Outside Counsel of Record: attorneys who are not employees of a Party but are 18 retained to represent or advise a Party to this action and have appeared in this action on behalf 19 of that Party or are affiliated with a law firm which has appeared on behalf of that Party. 20 21 22 23 24 2.13 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action. 2.15 Professional Vendors: persons or entities that provide litigation support services 25 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 26 organizing, storing, or retrieving data in any form or medium) and their employees and 27 subcontractors. 4 1 2.16 Protected Material: any Disclosure or Discovery Material that is designated as 2 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL 3 as “HIGHLY CONFIDENTIAL 4 2.17 - - ATTORNEYS’ EYES ONLY” or SOURCE CODE.” Receiving Party: a Party that receives Disclosure or Discovery Material from a 5 Producing Party. 6 3. 7 The protections conferred by this Stipulation and Order cover not only Protected 8 Material (as defined above), but also (1) any information copied or extracted from Protected 9 Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any 10 testimony, conversations, or presentations by Parties or their Counsel that might reveal 11 Protected Material. However, the protections conferred by this Stipulation and Order do not 12 cover the following information: (a) any information that is in the public domain at the time of 13 disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a 14 Receiving Party as a result of publication not involving a violation of this Order, including 15 becoming part of the public record through trial or otherwise; and (b) any information known to 16 the Receiving Party prior to the disclosure or obtained by the Receiving Party after the 17 disclosure from a source who obtained the information lawfully and under no obligation of 18 confidentiality to the Designating Party. 19 governed by a separate agreement or order. SCOPE Any use of Protected Material at trial shall be 20 4. DURATION 21 Even after final disposition of this litigation, the confidentiality obligations imposed by 22 this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court 23 order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 24 claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 25 the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 26 action, including the time limits for filing any motions or applications for extension of time 27 pursuant to applicable law. 5 1 5. DESIGNATING PROTECTED MATERIAL 2 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each 3 Party or Non-Party that designates information or items for protection under this Order must 4 take care to limit any such designation to specific material that qualifies under the appropriate 5 standards. To the extent it is practical to do so, the Designating Party must designate for 6 protection only those parts of material, documents, items, or oral or written communications 7 that qualify 8 which protection is not warranted are not swept unj ustifiably within the ambit of this Order. — so that other portions of the material, documents, items, or communications for 9 If it comes to a Designating Party’s attention that information or items that it designated 10 for protection do not qualify for protection at all or do not qualify for the level of protection 11 initially asserted, that Designating Party must promptly notify all other parties that it is 12 withdrawing the mistaken designation. 13 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 14 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 15 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly 16 so designated before the material is disclosed or produced. 17 Designation in conformity with this Order requires: 18 (a) for information in documentary form (e.g., paper or electronic documents, but 19 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 20 Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 21 EYES ONLY” or “HIGHLY CONFIDENTIAL 22 protected material. — — ATTORNEYS’ SOURCE CODE” to each page that contains 23 A Party or Non-Party that makes original documents or materials available for 24 inspection need not designate them for protection until after the inspecting Party has indicated 25 which material it would like copied and produced. 26 designation, all of the material made available for inspection shall be deemed “HIGHLY 27 CONFIDENTIAL — During the inspection and before the ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified 6 1 the documents it wants copied and produced, the Producing Party must determine which 2 documents, or portions thereof, qualify for protection under this Order. Then, before producing 3 the 4 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 5 “HIGHLY CONFIDENTIAL 6 Material. specified documents, the Producing — Party must affix the - appropriate legend ATTORNEYS’ EYES ONLY” SOURCE CODE) to each page that contains Protected 7 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 8 Designating Party identif~’ on the record, before the close of the deposition, hearing, or other 9 proceeding, all protected testimony and specify the level of protection being asserted. When it 10 is impractical to identify separately each portion of testimony that is entitled to protection and it 11 appears that substantial portions of the testimony may qualify for protection, the Designating 12 Party may invoke on the record (before the deposition, hearing, or other proceeding is 13 concluded) a right to have up to 21 days to identi& the specific portions of the testimony as to 14 which protection is sought and to speci& the level of protection being asserted. Only those 15 portions of the testimony that are appropriately designated for protection within the 21 days 16 shall be covered by the provisions of this Stipulated Protective Order. 17 Designating Party may specify, at the deposition or up to 21 days afterwards if that period is 18 properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY 19 CONFIDENTIAL - Alternatively, a ATTORNEYS’ EYES ONLY.” 20 Parties shall give the other parties notice if they reasonably expect a deposition, hearing 21 or other proceeding to include Protected Material so that the other parties can ensure that only 22 authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 23 (Exhibit A) are present at those proceedings. 24 deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL - The use of a document as an exhibit at a ATTORNEYS’ EYES ONLY.” 26 Transcripts containing Protected Material shall have an obvious legend on the title page 27 that the transcript contains Protected Material, and the title page shall be followed by a list of 7 I all pages (including line numbers as appropriate) that have been designated as Protected 2 Material and the level of protection being asserted by the Designating Party. The Designating 3 Party shall inform the court reporter of these requirements. Any transcript that is prepared 4 before the expiration of a 21-day period for designation shall be treated during that period as if 5 it had been designated “HIGHLY CONFIDENTIAL 6 entirety unless otherwise agreed. After the expiration of that period, the transcript shall be 7 treated only as actually designated. — ATTORNEYS’ EYES ONLY” in its 8 (c) for information produced in some form other than documentary and for any other 9 tangible items, that the Producing Party affix in a prominent place on the exterior of the 10 container or containers 11 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 12 “HIGHLY CONFIDENTIAL 13 information or item warrant protection, the Producing Party, to the extent practicable, shall 14 identif~’ the protected portion(s) and specify the level of protection being asserted. 15 5.3 in which the information or item is — SOURCE CODE”. - stored the legend ATTORNEYS’ EYES ONLY” or If only a portion or portions of the Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 16 designate qualified information or items does not, standing alone, waive the Designating 17 Party’s right to secure protection under this Order for such material. Upon timely correction of 18 a designation, the Receiving Party must make reasonable efforts to assure that the material is 19 treated in accordance with the provisions of this Order. 20 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 21 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 22 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 23 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 24 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 25 challenge a confidentiality designation by electing not to mount a challenge promptly after the 26 original designation is disclosed. 27 8 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 2 process by providing written notice (“Notice”) of each designation it is challenging and 3 describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been 4 made, the Notice must recite that the challenge to confidentiality is being made in accordance 5 with this specific paragraph of the Protective Order. The parties shall attempt to resolve each 6 challenge in good faith and must begin the process by conferring directly (in voice to voice 7 dialogue; other forms of communication are not sufficient) within 14 days of the date of service 8 of the Notice. In conferring, the Challenging Party must explain the basis for its belief that the 9 confidentiality designation was not proper and must give the Designating Party an opportunity 10 to review the designated material, to reconsider the circumstances, and, if no change in 11 designation is offered, to explain the basis for the chosen designation. A Challenging Party 12 may proceed to the next stage of the challenge process only if it has engaged in this meet and 13 confer process first or establishes that the Designating Party is unwilling to participate in the 14 meet and confer process in a timely manner. 15 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 16 intervention, the Challenging Party shall file and serve a motion to downgrade the 17 confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 18 applicable) within 21 days of the Notice or within 14 days of the parties agreeing that the meet 19 and confer process will not resolve their dispute, whichever is later. Bach such motion must be 20 accompanied by a competent declaration affirming that the movant has complied with the meet 21 and confer requirements imposed in the preceding paragraph. 22 The burden of persuasion in any such challenge proceeding shall be on the Designating 23 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 24 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 25 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 26 respond to a motion to downgrade confidentiality as described above, all parties shall continue 27 9 I to afford the material in question the level of protection to which it is entitled under the 2 Producing Party’s designation until the court rules on the challenge. 3 7, ACCESS TO AND USE OF PROTECTED MATERIAL 4 7.1 Basic Principles. A Receiving Party may use Protected Material that is 5 disclosed or produced by another Party or by a Non-Party in connection with this case only for 6 prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 7 disclosed only to the categories of persons and under the conditions described in this Order. 8 When the litigation has been terminated, a Receiving Party must comply with the provisions of 9 section 15 below (FINAL DISPOSITION). 10 Protected Material must be stored and maintained by a Receiving Party at a location and 11 in a secure manner1 that ensures that access is limited to the persons authorized under this 12 Order. 13 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 14 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 15 disclose any information or item designated “CONFIDENTIAL” only to: 16 (a) The Receiving Party’s Outside Counsel of Record in this action, as well as 17 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose 18 the information for this litigation; 19 (b) Up to two (2) Designated House Counsel of the Receiving Party (1) to whom 20 disclosure is reasonably necessary for this litigation, (2) who has signed the “Acknowledgment 21 and Agreement to Be Bound” (Exhibit A), and (3) who does not, and shall not, engage in 22 23 24 25 26 27 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in password-protected form. 10 1 competitive decision-making2 regarding cloud data synchronization and back-up technology 2 products; 3 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 4 reasonably necessary for this litigation and who have signed the “Acknowledgment and 5 Agreement to Be Bound” (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, and Professional 8 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 10 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 11 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 12 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 14 be separately bound by the court reporter and may not be disclosed to anyone except as 15 permitted under this Stipulated Protective Order. 16 17 (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 18 7.3 Disclosure of “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” 19 and “HIGHLY CONFIDENTIAL 20 ordered by the court or permitted in writing by the Designating Party, a Receiving Party may — SOURCE CODE” Information or Items. Unless otherwise 21 22 ___________________________ 23 2 24 25 26 27 For purposes of this Order, the phrase “competitive business decision-making” does not include purely legal decision-making responsibilities relating to cloud data synchronization and back-up technology products, including, for example, responsibilities for managing, conducting or overseeing due diligence related to mergers and acquisitions, litigations, inter partes or postgrant review proceedings; advising business decision-makers regarding the status of litigations, inter partes or post-grant review proceedings; or negotiating or executing agreements to settle litigations, inter partes or post-grant review proceedings, including responsibilities related to any financial terms of such an agreement. 11 1 disclose any information or item designated “HIGHLY CONFIDENTIAL 2 EYES ONLY” or “HIGHLY CONFIDENTIAL — — ATTORNEYS’ SOURCE CODE” only to: 3 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as 4 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose 5 the information for this litigation; 6 (b) Up to two (2) Designated House Counsel of the Receiving Party (I) to whom 7 disclosure is reasonably necessary for this litigation, (2) who has signed the “Acknowledgment 8 and Agreement to Be Bound” (Exhibit A), (3) who does not, and shall not, engage in 9 competitive decision-making regarding cloud data synchronization and back-up technology 10 products, and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been 11 followed];3 12 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for 13 this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” 14 (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have 15 been followed]; 16 (d) the court and its personnel; 17 (e) court reporters and their staff, professional jury or trial consultants, and Professional 18 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 19 “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 20 21 (f) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 22 23 24 25 ~ Designated House Counsel shall not have access to any information or items designated 26 “HIGHLY CONFIDENTIAL SOURCE CODE,” and shall be limited to viewing “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” information only in the presence of Outside Counsel of Record at their offices. — — 27 12 1 7.4 Procedures 2 CONFIDENTIAL 3 SOURCE CODE” Information or Items to Designated House Counsel or Experts. - for Approving or Objecting to Disclosure of “HIGHLY ATTORNEYS’ EYES ONLY” and “HIGHLY CONFIDENTIAL - 4 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating 5 Party, a Party that seeks to disclose to Designated House Counsel any information or item that 6 has been designated “HIGHLY CONFIDENTIAL 7 paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth 8 the full name of the Designated House Counsel and the city and state of his or her residence, 9 and (2) describes the Designated House Counsel’s current and reasonably foreseeable future 10 — ATTORNEYS’ EYES ONLY” pursuant to primary job duties and responsibilities.4 11 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating 12 Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or 13 item that has been designated “HIGHLY CONFIDENTIAL 14 or “HIGHLY CONFIDENTIAL 15 make a written request to the Designating Party that (1) identifies the general categories of t6 “HIGHLY 17 CONFIDENTIAL 18 to disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his 19 or her primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the 20 Expert’s current employer(s), (5) identifies each person or entity from whom the Expert has 21 received compensation or funding for work in his or her areas of expertise or to whom the 22 expert has provided professional services, including in connection with a litigation, at any time CONFIDENTIAL — — — ATTORNEYS’ EYES ONLY” SOURCE CODE” pursuant to paragraph 7.3(c) first must - ATTORNEYS’ EYES ONLY” or “HIGHLY SOURCE CODE” information that the Receiving Party seeks permission 23 24 25 26 27 Any Designated House Counsel who receives “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” information pursuant to this Order shall disclose any relevant changes in job duties or responsibilities within 15 business days of any such changes. ‘~ — 13 1 during the preceding five years,5 and (6) identifies (by name and number of the case, filing 2 date, and location of court) any litigation in connection with which the Expert has offered 3 expert testimony, including through a declaration, report, or testimony at a deposition or trial, 4 during the preceding five years.6 5 (b) A Party that makes a request and provides the information specified in the preceding 6 respective paragraphs may disclose the subject Protected Material to the identified Designated 7 House Counsel or Expert unless, within 14 days of delivering the request, the Party receives a 8 written objection from the Designating Party. Any such objection must set forth in detail the 9 grounds on which it is based. 10 (c) A Party that receives a timely written objection must meet and confer with the 11 Designating Party (through direct voice-to-voice dialogue) to try to resolve the matter by 12 agreement within seven days of the written objection. If no agreement is reached, the Party 13 seeking to make the disclosure to Designated House Counsel or the Expert may file a motion as 14 provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) 15 seeking permission from the court to do so. Any such motion must describe the circumstances 16 with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel 17 or the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, 18 and suggest any additional means that could be used to reduce that risk. In addition, any such 19 motion must be accompanied by a competent declaration describing the parties’ efforts to 20 resolve the matter by agreement (i.e., the extent and the content of the meet and confer 21 22 23 24 26 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 6 It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to the termination of the litigation that could foreseeably result in an improper use of the Designating Party’s “HIGHLY CONFIDENTIAL ATTORNEYS’ EYES ONLY” information. — 27 14 1 discussions) and setting forth the reasons advanced by the Designating Party for its refusal to 2 approve the disclosure. 3 In any such proceeding, the Party opposing disclosure to Designated House Counsel or 4 the Expert shall bear the burden of proving that the risk of hann that the disclosure would entail 5 (under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected 6 Material to its Designated House Counsel or Expert. 7 8. SOURCE CODE 8 (a) To the extent production of source code becomes necessary in this case, a 9 Producing Party may designate source code as “HIGHLY CONFIDENTIAL — SOURCE 10 CODE” if it comprises or includes confidential, proprietary or trade secret source code as 11 defined in Section 2.9 above. 12 (b) Protected Material designated as “HIGHLY CONFIDENTIAL — SOURCE 13 CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL 14 ATTORNEYS’ EYES ONLY” information and may be disclosed only to the individuals to 15 whom “HIGHLY CONFIDENTIAL 16 disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House 17 Counsel, who shall not have access to Protected Material designated as “HIGHLY 18 CONFIDENTIAL 19 (c) — - — ATTORNEYS’ EYES ONLY” information may be SOURCE CODE.” Unless otherwise agreed to in writing between the Designating Party and the 20 Receiving Party, a Receiving Party may only review Source Code on “stand alone” computers 21 (i.e., password-protected computers that are not networked together by a wired or wireless 22 network and are not connected to any network, internet or peripheral device except that the 23 stand-alone computers may be connected to printer or printers), maintained in a secure, locked 24 area at (i) for Egnyte at 1350 W. Middlefield Road, Mountain View, CA 94043, and (ii) for 25 Synchronoss at the offices of Dentons US LLP in San Francisco, California, or at other 26 locations if mutually agreed to by the parties. Access is to be made available during regular 27 business hours (9:00 a.m. to 6:00 p.m. local time), on non-holiday weekdays upon reasonable 15 1 notice to the Producing Party, which shall not be less than five (5) business days in advance of 2 the requested inspection. 3 4 5 (d) The electronic source code shall be made available for inspection in an uncompressed and unobfuscated human-readable form. (e) In advance of a Source Code inspection, the parties shall meet and confer 6 about the tools that will be installed on the secured computer for viewing and searching the 7 Source Code produced. The Receiving Party’s Outside Counsel and/or Experts may request 8 that commercially available licensed software tools for viewing and searching Source Code be 9 installed on the secured computer at the Receiving Party’s expense if there is a fee associated 10 with obtaining the software tools. The Receiving Party must provide the Producing Party with Ii the CD or DVD containing or an Internet URL link to access such software tool(s) at least ten 12 (10) business days in advance of the inspection. The Producing Party may decline to install 13 any requested inspection software if the software represents any unreasonable risk of 14 compromising security of the Source Code or the Source Code computer, or the software could 15 be used for any other illegitimate purpose in contravention of the Protective Order, however if 16 such denial occurs, it may not be unreasonable and the Producing Party shall inform the 17 Receiving Party in writing of the reason for the denial. For emphasis, it should be noted that 18 the tools for reviewing source code may not be used to circumvent the protections of this 19 Protective Order in any way. 20 (f) The Producing Party may not configure its source code or the stand-alone 21 computer in a manner that allows the Producing Party to monitor the Receiving Party’s 22 inspection (e.g., key logging, video capture, etc.) of the code. 23 (g) The parties will produce Source Code in computer searchable format. No copies 24 of all or any portion of the Source Code may leave the room in which the Source Code is 25 inspected except as otherwise provided herein. Further, no other written or electronic record of 26 the Source Code is permitted except as otherwise provided herein. The Designating Party may 27 visually monitor the activities of the Receiving Party’s representative(s) during any Source 16 1 Code review, but only to ensure that there is no unauthorized recording, copying, or 2 transmission of the Source Code. No person shall copy, e-mail, transmit, upload, download, 3 print, photograph or otherwise duplicate any portion of the designated Source Code, except that 4 the Receiving Party may request paper copies of limited portions of the Source Code as 5 reasonably necessary to prepare court filings and expert reports. The Designating Party shall 6 provide such paper copies of the Source Code within five (5) business days so long as the 7 Receiving Party’s request is reasonable. 8 (h) If the Designating Party objects that the printed portions are not reasonably 9 necessary to any case preparation activity, the Designating Party shall make such objection 10 known to the Receiving Party within five (5) business days. If after meeting and conferring the 11 Designating Party and the Receiving Party cannot resolve the objection (where such meet-and- 12 confer need not take place in person), the Receiving Party may seek a Court resolution of 13 whether the printed Source Code in question is reasonably necessary to any case preparation 14 activity. Contested Source Code print outs need not be produced to the Receiving Party until 15 the matter is resolved by the Court. 16 (i) The Designating Party will provide the paper copies to the Receiving Party with 17 affixed Bates number labels and confidentiality labels stating “HIGHLY CONFIDENTIAL 18 SOURCE CODE.” The Producing Party may produce the printed pages on watermarked or 19 colored paper. The Receiving Party may request up to three additional sets (or subsets) of 20 printed Source Code, to be provided by the Producing Party in a timely fashion. The Receiving 21 Party shall not print Source Code to review blocks of Source Code elsewhere in the first 22 instance, i.e., as an alternative to reviewing the Source Code electronically on the stand-alone 23 computer supplied by the Producing Party. The paper copies must be kept in a secured location 24 at the offices of the Receiving Party’s Outside Counsel at all times. No additional copies of 25 such code may be made except as provided herein. 26 27 ~) — The Receiving Party of printed copies of Source Code must keep such printed copies in a secured container or location at all times. Paper copies of Source Code may not be 17 1 copied and may not be removed from a secured container or location unless in a secured, 2 private area. Notwithstanding the foregoing sentence, Outside Counsel may make copies of the 3 paper copies of Source Code for use as exhibits in court proceedings and at depositions. 4 Images or copies of Source Code shall not be included in correspondence between the Parties 5 (references to production numbers shall be used instead), and shall be omitted from pleadings 6 and other filings without prior permission for filing such Source Code under seal by either the 7 Designating Party or the Court. For clarity and the avoidance of doubt, to the extent that a 8 Receiving Party believes that it is necessary to file under seal certain excerpts of “HIGHLY 9 CONFIDENTIAL — SOURCE CODE,” the Receiving Party may request permission from the 10 Designating Party to file such excerpts under seal. To the extent that the Parties are unable to 11 resolve any such dispute, the Receiving Party may seek relief from the Court. 12 (k) In the event the Source Code provided by a Party does not contain search tools 13 satisfactory to a Receiving Party, the Receiving Party may use diagnostic software to perform 14 searches of the Source Code with the approval of the Designating Party; however, no portions 15 of the Source Code may be downloaded. 16 (1) The Outside Counsel or Experts of a Receiving Party may take notes during any 17 Source Code inspection but may not copy portions of the Source Code into such notes. Any 18 such notes must be marked on each page with “HIGHLY CONFIDENTIAL 19 CODE.” The Outside Counsel or Experts of a Receiving Party inspecting Source Code may 20 use a non-networked laptop to take notes so long as the laptop does not contain a camera. All 21 I/O ports on the laptop must be disabled. Laptops that enter the Source Code inspection room 22 are subject to physical inspection. Furthermore, a laptop that enters the Source Code inspection 23 room shall be placed in a secure location away from the source code computer in an area 24 designated by the Producing Party, and not moved from the designated area during the 25 inspection. 26 (m) 27 — SOURCE To the extent necessary, the Receiving Party may leave work product or other materials to which it claims privilege stored on the computer(s) on which the Source Code has 18 1 been provided for a period not to exceed seven (7) calendar days. After notification by the 2 Receiving Party that such work product or other materials to which it claims privilege are 3 stored on the computer(s), personnel of the Designating Party may not examine the contents of 4 the machine on which the Source Code has been provided, except for administrative reasons 5 upon 48 hours’ notice explaining the reason for the necessity to examine the machine. At the 6 expiration of this seven (7) calendar day period, the Receiving Party will remove any such 7 work product or other materials to which it claims privilege and the Designating Party will no 8 longer be restricted in its access to the machine. Nothing in this clause restricts a Party’s ability 9 to continue its review of the Source Code for longer than seven (7) days, or entitles a Party to 10 11 an inspection period of at least seven (7) days. (n) Any paper copies designated “HIGHLY CONFIDENTIAL — SOURCE CODE” 12 shall be stored or viewed only at (i) the offices of Outside Counsel for the Receiving Party, (ii) 13 the offices of Experts who have been approved to access Source Code; (iii) the site where any 14 deposition is taken; (iv) the Court; or (v) any intermediate location necessary to transport the 15 information to a hearing, trial or deposition. Any such paper copies shall be maintained at all 16 times in a secure location under the direct control of counsel responsible for maintaining the 17 security and confidentiality of the designated materials. 18 (o) A list of names of persons who will view the Source Code will be provided to 19 the Designating Party in conjunction with any written (including email) notice requesting 20 inspection. The Receiving Party shall maintain a daily log of the names of persons who enter 21 the locked room to view the Source Code and when they enter and depart. The Designating 22 Party shall be entitled to have a person observe all entrances and exits from the Source Code 23 viewing room, and to a copy of the log upon request. No input/output device and recordable 24 media or recordable devices, including without limitation sound recorders, computers, cellular 25 telephones, peripheral equipment, cameras, USB memory sticks, CDs, DVDs, or drives of any 26 kind, shall be permitted into the Source Code reviewing room. All persons entering the locked 27 room containing the Source Code must agree to submit to reasonable security measures to 19 1 insure they are not carrying any prohibited items before they will be given access to the “stand- 2 alone computer” containing the Source Code. 3 (p) Any printed pages of Source Code, and any other documents or things reflecting 4 Souite Code that have been designated by the Producing Party as “HIGHLY CONFIDENTIAL 5 — 6 limited excerpts (including transient electronic copies) as necessary to use as exhibits to 7 deposition, or to file, draft, and serve expert reports or court filings. The Receiving Party may 8 create an electronic image of a limited excerpt of the “HIGHLY CONFIDENTIAL —SOURCE 9 CODE” only when the electronic files containing such an image has been encrypted using 10 commercially reasonable encryption software including password protection and the password 11 sent under separate cover. 12 SOURCE CODE” may not be copied, digitally imaged or otherwise duplicated, except in (q) The Receiving Party’s Outside Counsel shall maintain a log of all copies of the 13 Source Code (received from a Producing Party) that are delivered by the Receiving Party to any 14 qualified person under paragraph 7.3 above. The log shall include the names of the recipients 15 and reviewers of copies and locations where the copies are stored. 16 Producing Party, the Receiving Party shall provide reasonable assurances and/or descriptions of 17 the security measures employed by the Receiving Party and/or qualified person that receives a 18 copy of any portion of the Source Code. 19 (r) Upon request by the Except as otherwise provided herein, the Receiving Party may not create 20 electronic images, or any other images, of the Source Code from the paper copy for use on a 21 computer (e.g., may not scan the source code to a PDF, or photograph the code). 22 Receiving Party may create an electronic copy or image of limited excerpts of Source Code 23 only to the extent necessary in a pleading, exhibit, expert report, discovery document, 24 deposition transcript, other Court document, or any drafts of these documents (“SOURCE 25 CODE DOCUMENTS”). 26 reasonably necessary for the purposes for which such part of the Source Code is used. Images 27 or copies of Source Code shall not be included in correspondence between the parties The The Receiving Party shall only include such excerpts as are 20 1 (references to production numbers shall be used instead) and shall be omitted from pleadings 2 and other papers except to the extent permitted herein. The Receiving Party may create an 3 electronic image of a selected portion of the Source Code only when the electronic file 4 containing such image has been encrypted using commercially reasonable encryption software 5 including password protection. 6 containing any portion of Source Code shall at all times be limited to individuals who are 7 authorized to see Source Code under the provisions of this Protective Order. The Receiving 8 Party shall maintain a log of all electronic images and paper copies of Source Code in its 9 possession or in the possession of its retained consultants, including the names of the recipients 10 and reviewers of any electronic or paper copies and the locations where the copies are stored. 11 Additionally, all electronic copies must be labeled “HIGHLY CONFIDENTIAL 12 CODE.” 13 (s) The communication and/or disclosure of electronic files — SOURCE To the extent portions of Source Code are quoted in a SOURCE CODE 14 DOCUMENT, either (I) the entire document will be stamped and treated as HIGHLY 15 CONFIDENTIAL 16 be separately bound, and stamped and treated as HIGHLY CONFIDENTIAL 17 CODE. 18 (t) — SOURCE CODE or (2) those pages containing quoted Source Code will — SOURCE All copies of any portion of the Source Code in whatever form shall be securely 19 destroyed if they are no longer in use. Copies of Source Code that are marked as deposition 20 exhibits shall not be provided to the Court Reporter or attached to deposition transcripts; rather, 21 the deposition record will identify the exhibit by its production numbers. 22 (u) The Receiving Party’s Outside Counsel may only disclose a copy of the Source 23 Code to individuals specified in paragraph 7.3 above (e.g., Source Code may not be disclosed 24 to Designated House Counsel). 25 26 9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 27 21 1 If a Party is sewed with a subpoena or a court order issued in other litigation that 2 compels disclosure of any information or items designated in this action as “CONFIDENTIAL” 3 or 4 CONFIDENTIAL “HIGHLY 5 6 CONFIDENTIAL — - ATTORNEYS’ EYES ONLY” or “HIGHLY SOURCE CODE” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; 7 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 8 other litigation that some or all of the material covered by the subpoena or order is subject to 9 this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; 10 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 If the Designating Party timely seeks a protective order, the Party sewed with the 14 subpoena or court order shall not produce any information designated in this action as 15 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 16 “HIGHLY CONFIDENTIAL 17 which the subpoena or order issued, unless the Party has obtained the Designating Party’s 18 express permission in writing. Nothing in these provisions should be construed as authorizing 19 or encouraging a Receiving Party in this action to disobey a lawfiil directive fitm another 20 court. 21 22 23 10. — - ATTORNEYS’ EYES ONLY” SOURCE CODE” before a determination by the court from A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED TN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party 24 in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 25 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL 26 information produced by Non-Parties in connection with this litigation is protected by the 27 22 - — SOURCE CODE”. Such I remedies and relief provided by this Order. Nothing in these provisions should be construed as 2 prohibiting a Non-Party from seeking additional protections. 3 (b) In the event that a Patty is required, by a valid discovery request, to produce a 4 Non-Party’s confidential information in its possession, and the Party is subject to an agreement 5 with the Non-Party not to produce the Non-Party’s confidential information, then the Party 6 shall: 7 8 9 1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party; 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order 10 in this litigation, the relevant discovery request(s), and a reasonably specific description of the 11 information requested; and 12 3. malce the information requested available for inspection by the Non-Party. 13 (c) If the Non-Patty fails to object or seek a protective order from this court within 14 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 17 information in its possession or control that is subject to the confidentiality agreement with the 18 Non-Party before a determination by the court. Absent a court order to the contrary, the Non- 19 Party shall bear the burden and expense of seeking protection in this court of its Protected 20 Material. 21 22 11. INADVERTENT DISCLOSURE OF PRIVILEGED OR PROTECTED MATERIAL 23 There is no waiver of, or impairment to, any claim of the attorney-client privilege, work 24 product immunity, or any other applicable protection from disclosure should material(s) be 25 produced, which the Designating Party believes are protected from disclosure by such privilege 26 or immunity and which were inadvertently produced. In the event that Outside Counsel for a 27 Designating Party in this Action or the responsible attorney for a Non-Party learns that a 23 I document or other item subject to immunity from discovery on the basis of attorney-client 2 privilege, work product or other valid basis has been produced inadvertently, such Outside 3 Counsel or the responsible attorney for a Non-Party shall notify the Receiving Party or Parties 4 promptly after so learning that such inadvertent production has been made. Within five (5) 5 days of receiving written notice from the Designating Party, the Receiving Party shall take all 6 reasonable measures to return or destroy the originals and all copies of the privileged or 7 immune material(s) and the shall notify the Designating Party that it has complied with this 8 provision. Any analysis, memoranda, or notes that were internally generated based upon such 9 inadvertently-produced material shall immediately be destroyed or revised to omit such 10 information. If additional copies of inadvertently produced material or any analysis, 11 memoranda, or notes that were internally generated is subsequently discovered by the 12 Receiving Party to be within the said Receiving Party’s control, all reasonable efforts should be 13 made to comply with the provisions. The Designating Party shall promptly provide an 14 appropriate privilege log for the inadvertently produced documents, including the date, author, 15 addressee(s), and topic of the document and such other information as is reasonably necessary 16 to identify the document and describe its nature. The Receiving Party shall not seek an order 17 compelling production of the inadvertently disclosed documents on the ground that the 18 Designating Party has waived or is estopped from asserting the applicable privilege or 19 immunity on the basis that the document has been voluntarily produced. No use shall be made 20 of such documents or information during deposition or at trial, nor shall such documents or 21 information be shown to anyone who has not already been given access to them subsequent to 22 the request that they be returned. Such inadvertent disclosure shall not result in the waiver of 23 any associated privilege or immunity. 24 confidentiality of any such inadvertently produced information. Outside Counsel shall cooperate to restore the 25 The return of documents or materials by the Receiving Party shall not constitute an 26 admission or concession, or permit any inference, that the returned document is, in fact, 27 properly subject to a claim of attorney-client privilege, work product immunity, or any other 24 I applicable privilege, nor shall it foreclose the Receiving Party from moving for an order that 2 such document has been improperly designated as subject to a claim of attorney-client 3 privilege, work-product immunity or any other applicable privilege. Any motion to the Court 4 challenging the Designating Party’s claim(s) of privilege or immunity shall not assert as a 5 ground for production, however, the fact of the inadvertent production, nor shall the motion 6 disclose or otherwise use the content of the inadvertently produced document or information 7 (beyond any information appearing on the privilege log) in any way in connection with any 8 such motion. 9 produced cannot be sequestered by a Receiving Party for submission to the Court. 10 The parties expressly acknowledge that documents that are inadvertently Should any information designed “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL 11 — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL 12 disclosed by the Receiving Party, through inadvertence or otherwise, to any person or party not 13 authorized under this Order, then the Receiving Party shall use its best efforts to bind such 14 person to the terms of this Order; and the Receiving Party shall (a) promptly inform such 15 person of all the provisions of this Order; (b) identify such person immediately to the 16 Designating Party; and (c) request such person to sign the Protective Order in the form attached 17 as Exhibit A. The executed agreement shall promptly be served upon the Designating Party. 18 The Court may, upon noticed motion, order such further and additional relief as it deems 19 necessary and just. 20 12. PROSECUTION BAR 21 12.1 Absent written consent from the Producing Party, any individual who receives - SOURCE CODE” be 22 access to technical product information designated “HIGHLY 23 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL 24 information shall not be involved in the prosecution of patents or patent applications relating to 25 cloud data synchronization and back-up technology, including without limitation the patents 26 asserted in this action and any patent or application claiming priority to or otherwise related to 27 the patents asserted in this action, before any foreign or domestic agency, including the United 25 CONFIDENTIAL - — SOURCE CODE” 1 States Patent and Trademark Office (“the Patent Office”) on behalf of a Party to this Action. 2 For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, 3 amending, advising, or otherwise affecting the scope or maintenance of patent claims. 4 avoid any doubt, “prosecution” as used in this paragraph does not include representing a party 5 challenging a patent before a domestic or foreign agency (including, but not limited to, a 6 reissue protest, ex pane reexamination or inter partes reexamination). 7 anything in this paragraph, persons receiving “HIGHLY CONFIDENTIAL 8 EYES ONLY” or “HIGHLY CONFIDENTIAL 9 participate in, or be involved with, drafting new claims or claim amendments in connection 10 - To Notwithstanding — ATTORNEYS’ SOURCE CODE” may not, however, with such a challenge. 11 12,2 This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL — 12 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL 13 information is first received by the affected individual and shall end two (2) years after final 14 termination of this action. 15 12.3 - SOURCE CODE” The Parties expressly agree that the Prosecution Bar set forth herein shall be 16 personal to any attorney who reviewed the “HIGHLY CONFIDENTIAL 17 EYES ONLY” or “HIGHLY CONFIDENTIAL 18 be imputed to any other persons or attorneys at the attorneys’ law firm. — — ATTORNEYS’ SOURCE CODE” information and shall not 19 13. ACQUISITION BAR 20 13.1 Any person reviewing any of an opposing party’s “HIGHLY CONFIDENTIAL 21 — SOURCE CODE” materials shall not, for a period commencing upon receipt of such 22 information and ending two years following the conclusion of this case (including any appeals), 23 give advice as to which patents to acquire on behalf of a Party 24 synchronization or back-up technology. This Acquisition Bar does not prevent counsel from 25 otherwise engaging in the acquisition process by providing legal advice, such as offering 26 opinions as to patent validity or standing. Nothing in this Acquisition Bar precludes counsel in 27 26 relating to cloud data 1 this Action from advising as to proposed settlements to this Action or other litigations 2 including, for example, by licensing or assigning patents or patent applications. 3 14. MISCELLANEOUS 4 14.1 Right to Further Relief Nothing in this Order abridges the right of any person 5 to seek its modification by the court in the fUture. This Order may be modified by this Court 6 for good cause shown or by mutual written agreement between the parties and this Court’s 7 approval of such agreement. The Court may enter a subsequent order addressing the use of 8 Protected Information at trial or at the conclusion of this Action. 9 14.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 10 Order, no Party waives any right it otherwise would have to object to disclosing or producing 11 any information or item on any ground not addressed in this Stipulated Protective Order. 12 Similarly, no Party waives any right to object on any ground to use in evidence of any of the 13 material covered by this Protective Order. 14 14.3 Export Control. Disclosure of Protected Material shall be subject to all 15 applicable laws and regulations relating to the export of technical data contained in such 16 Protected Material, including the release of such technical data to foreign persons or nationals 17 in the United States or elsewhere. The Producing Party shall be responsible for identifying any 18 such controlled technical data, and the Receiving Party shall take measures necessary to ensure 19 compliance. 20 14.4 Filing Protected Material. Without written permission from the Designating 21 Party or a court order secured after appropriate notice to all interested persons, a Party may not 22 file in the public record in this action any Protected Material. A Party that seeks to file under 23 seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may 24 only be filed under seal pursuant to a court order authorizing the sealing of the specific 25 Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only 26 upon a request establishing that the Protected Material at issue is privileged, protectable as a 27 trade secret, or otherwise entitled to protection under the law. If a Receiving Partys request to 27 1 file Protected Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, 2 then the Receiving Party may file the Protected Material in the public record pursuant to Civil 3 Local Rule 79-5(e)(2) unless otherwise instructed by the court. 4 14.5 Continuing Jurisdiction. After the conclusion of this Action, the provisions of 5 this Protective Order shall continue to be binding until further order of this Court, and this 6 Court shall retain jurisdiction over the parties and any other person who has had access to 7 Protected Material pursuant to this Protective Order, in order to enforce the provisions of this 8 Protective Order. 9 14.6 Interiretation. Should the Parties have any issues concerning the interpretation 10 of this Protective Order, before any Party moves for this Court’s assistance, they shall first 11 endeavor to promptly meet and confer to resolve the dispute. The headings used in this 12 Protective Order are supplied for convenience only and shall not be taken into account in the 13 interpretation of this Protective Order. 14 14.7 Outside Counsel’s Communication with Client. Nothing in this Protective Order 15 shall preclude or impede Outside Counsel’s ability to communicate with or advise their client 16 based on their review and evaluation of Protected Materials produced by the opposing Party, 17 provided that such communications or advice shall not disclose or reveal Protected Information 18 in violation of this Protective Order. 19 14.8 No Probative Value. This Protective Order shall not aggregate or diminish any 20 contractual, statutory or other legal obligation or right of any party or person with respect to 21 any Protected Material. 22 “HIGHLY • 23 The fact that information is designated “CONFIDENTIAL” or CONFIDENTIAL CONFIDENTIAL — - ATTORNEYS’ EYES ONLY” or “HIGHLY SOURCE CODE” under this Order shall not be deemed to be 24 determinative of what a trier of fact may determine to actually be “CONFIDENTIAL” or 25 “HIGHLY 26 CONFIDENTIAL 27 right of any party to bring before the Court questions regarding (a) whether any particular CONFIDENTIAL — - ATTORNEYS’ EYES ONLY” or “HIGHLY SOURCE CODE.” This Protective Order shall be without prejudice to the 28 I material is or is not properly designated or (b) whether any particular information or material is 2 or is not entitled to a greater or lesser degree of protection under the terms of this Order, 3 provided that in doing so, the party complies with the procedures set forth herein. The fact that 4 any information is disclosed, used or produced in any court proceeding in this Action shall not 5 be offered in any action proceeding before any court, agency or tribunal as evidence of or 6 concerning whether or not such information is admissible, confidential or proprietary. 7 14.9 Logging of Privileged Materials. The Parties agree that their privilege logs need 8 not identi& attorney-client privileged or work-product protected documents or communications 9 created subsequent to March 27, 2015. In addition, Privileged Materials created by or on 10 behalf of litigation counsel or exchanged with litigation counsel, regardless of their date, do not 11 need to be included on any privilege log. This exception applies to litigation counsel for any 12 litigation involving any of the patents-in-suit. 13 14.10 Back-Up Materials. Materials retained primarily for back-up or disaster 14 recovery purposes, whether in tape, floppy disk, optical disk, or similar formats, are considered 15 not reasonably accessible under Federal Rule of Civil Procedure 26(b)(2)(B) and, accordingly, 16 are not subject to production unless specific facts demonstrate a particular need for such 17 evidence that justifies the burden of retrieval. 18 servers, external hard drives, notebooks, or personal computer hard drives that are created for 19 disaster recovery purposes and not used as reference materials in the ordinary course of the 20 Designating Party’s business operations need not be searched or produced absent good cause, 21 but also subject to the Designating Party’s claim of undue burden or cost. The Parties will meet 22 and confer as to good cause on this issue. 23 Receiving Party may raise this issue with the Court; however, production of such documents 24 shall not be required absent a Court Order obtained for good cause shown. The Receiving 25 Party shall bear the burden of establishing that good cause exists for search or production of the 26 Protected Information sought. Furthermore, archives stored on computer If the parties cannot reach an agreement, the 27 29 1 14.11 Changing the Designation of Discovery Material. In the event any party desires 2 to change the designation of Discovery Material that is produced from no designation to 3 “CONFIDENTIAL,” “CONFIDENTIAL 4 “CONFIDENTIAL 5 CODE,” or from one such designation to another, such party may do so by notice in writing 6 specifically identifying the Discovery Material and frirnishing a copy of such Discovery 7 Material with the new designation. In such event, the Receiving Party shall thereafter treat 8 such information with the new designation pursuant to this Order, as well as undertake a good 9 faith effort to correct any treatment of the information inconsistent with the new designation. - — OUTSIDE COUNSEL’S EYES ONLY,” or OUTSIDE COUNSEL’S EYES ONLY— COMPUTER SOURCE 10 15. FINAL DISPOSITION 11 Within 60 days after the final disposition of this action, as defined in paragraph 4, each 12 Receiving Party must return all Protected Material to the Producing Party or destroy such 13 material and certify to the Producing Party as to the destruction. As used in this subdivision, 14 “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other 15 format reproducing or capturing any of the Protected Material. Whether the Protected Material 16 is returned or destroyed, the Receiving Party must submit a written certification to the 17 Producing Party (and, if not the same person or entity, to the Designating Party) by the 60-day 18 deadline that (1) identifies (by category, where appropriate) all the Protected Material that was 19 returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 20 abstracts, compilations, summaries or any other format reproducing or capturing any of the 21 Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 22 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal 23 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 24 product, and consultant and expert work product, even if such materials contain Protected 25 Material. Any such archival copies that contain or constitute Protected Material remain subject 26 to this Protective Order as set forth in Section 4 (DURATION). Any destruction obligations 27 under this Order shall not apply to electronically-stored information in archival form stored on 30 1 back-up tapes or other media including, without limitation, computer servers, external hard 2 drives, notebooks, and personal computer hard drives, provided that such electronic archives 3 are not used as reference materials by counsel for the Receiving Party or for a Receiving 4 Party’s business operations. 5 6 SIGNED this 28 _____________ day of April , 2017. 7 8 9 HONORABLE HAYWOOD S. GILLIAM JR. HON. KANDIS A. WESTMORE UNITED STATES DISTRICT JUDGE United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 31 1 IT IS SO STIPULATED. 2 Dated this 31 day of March, 2017. Dated this 31 day of March, 2017. 3 /s/ Sarah S. Esicandari SARAH S. ESKANDAPJ (SEN 271541) DENTONS US LLP One Market Plaza, Spear Tower, 24th Floor San Francisco, CA 94105 Telephone: (415) 267-4000 Facsimile: (415) 267-4198 Email: /s/Ryan T. Beard Ryan T. Beard (Pro Hac Vice) Dwayne K. Goetzel (Pro Hac Vice) Meyertons, Hood, Kivlin, Kowert & Goetzel, P.C. 1120 S. Capital of Texas Hwy., Building 2, Suite 300, Austin, Texas 78746 Direct Dial: (512) 853-8833 Facsimile: (512) 853-8801 Email: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 MARK L. HOGGE (pro hac vice) SHAILENDRA K. MAHESHWARI (pro hac vice) NICHOLAS H. JACKSON (SBN 269976) DENTONS US LLP 1900 K Street, N.W. Washington, DC 20006 Telephone: (202) 408-6400 Facsimile: (202) 408-6399 Email: Email: Email: Neil A. Smith (SEN 63777) RIMON P.C. One Embarcadero Center, Suite 400 San Francisco, CA 94111 Phone: (415) 377-9280 Facsimile: (800) 930-7271 Email: Attorneys for Defendant Egnyte, Inc. JOEL N. BOCK (pro hac vice) DENTONS US LLP 101 JFK Parkway Short Hills, New Jersey 07078-2708 Telephone: (973) 912-7100 Facsimile: (973) 912-7199 Email: Attorneys for Plaintjff Synchronoss Technologies, Inc. 22 23 24 25 26 27 32 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION SYNCHRONOSS TECHNOLOGIES, INC., Plaintiff, Case No. 4:16-cv-00120-HSG STIPULATED PROTECTIVE ORDER v. Hon. Haywood S. Gilliam, Jr. EGNYTE, INC. Defendant. EXHIBIT A WRITTEN ACKNOWLEDGEMENT TO ABIDE BY THE TERMS OF THE PROTECTIVE ORDER I, the undersigned, hereby certify that I have read the Protective Order dated, ___________________ 2017, entered in the Northern District of California in the case entitled Synchronoss Technologies, Inc. v. Egnyte, Inc., Civil Action No. 4:16-cv-00120-HSG. I understand the terms of the Protective Order. I agree to be bound by such terms and to submit to the personal jurisdiction of the Northern District of California with respect to any proceeding related to the enforcement of this Protective Order, including any proceedings related to contempt of Court. I will not disclose Discovery Materials marked “CONFIDENTIAL,” “CONFIDENTIAL — OUTSIDE COUNSEL’S EYES ONLY,” or “CONFIDENTIAL OUTSIDE COUNSEL’S EYES ONLY - - COMPUTER SOURCE CODE” to anyone other than persons specifically authorized by the Protective Order, and I agree to return all such materials which come into my possession to counsel from whom I received such materials. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and COlT ect. Name of Individual: Company or Firm: Address: Telephone No. Relationship to this action and its parties: Dated: ___________________ ____________________________________________________ Signature

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