Blue Sky Networks, LLC v. Fitbit, Inc.

Filing 49

STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS [*AS MODIFIED BY THE COURT*]. Signed by Judge Yvonne Gonzalez Rogers on 3/13/18. (fs, COURT STAFF) (Filed on 3/13/2018)

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M. ELIZABETH DAY (SBN 177125)
[e-mail]
MARC BELLOLI (SBN 244290)
[e-mail]
FEINBERG DAY ALBERTI & THOMPSON
LLP
1600 El Camino Real, Suite 280
Menlo Park, CA 94025
Telephone: [phone]
Facsimile: 650.618.4368

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CABRACH J. CONNOR
Texas Bar No. 24036390
(admitted pro hac vice)
[e-mail]
JENNIFER TATUM LEE
Texas Bar No. 24046950
(admitted pro hac vice)
[e-mail]
CONNOR KUDLAC LEE PLLC
609 Castle Ridge Road, Suite 450
Austin, TX 78746
Telephone: [phone]
Facsimile: 888.387.1134

IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION
BLUE SKY NETWORKS, LLC,

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Attorneys for Defendant
Fitbit, Inc.

Attorneys for Plaintiff
Blue Sky Networks, LLC

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Plaintiff,
v.
FITBIT, INC.,

Case No. 4:17-cv-06543-YGR
STIPULATED PROTECTIVE ORDER FOR
LITIGATION INVOLVING PATENTS,
HIGHLY SENSITIVE CONFIDENTIAL
INFORMATION AND/OR TRADE SECRETS
*As modified by the Court*

22
Defendant.
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DURIE TANGRI LLP
CLEMENT S. ROBERTS (SBN 209203)
[e-mail]
TIMOTHY C. SAULSBURY (SBN 281434)
[e-mail]
EUGENE NOVIKOV (SBN 257849)
[e-mail]
217 Leidesdorff Street
San Francisco, CA 94111
Telephone: [phone]
Facsimile:
415-236-6300

Ctrm: 1 - 4th Floor
Judge: Honorable Yvonne Gonzalez Rogers

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STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1

1.

2

PURPOSES AND LIMIT
A
TATIONS
Disclosure an discovery activity in this action ar likely to in
D
nd
y
t
re
nvolve prod
duction of co
onfidential,

3

proprieta or privat informatio for which special prot
ary,
te
on
h
tection from public discl
m
losure and fr
rom use for

4

any purpose other tha prosecutin this litiga
an
ng
ation may be warranted. Accordingly the parties hereby
e
y,
s

5

stipulate to and petiti the court to enter the following S
ion
t
e
Stipulated Pr
rotective Ord The par
der.
rties

6

acknowle
edge that thi Order does not confer blanket prot
is
s
tections on a disclosure or respons to
all
es
ses

7

discovery and that th protection it affords fr
y
he
n
rom public d
disclosure an use extend only to th limited
nd
ds
he

8

informati or items that are enti
ion
itled to confi
fidential treat
tment under the applicab legal prin
ble
nciples. The

9

parties fu
urther acknow
wledge, as set forth in Section 14.4, below, that this Stipulat Protectiv Order doe
s
ted
ve
es

10
0

not entitl them to fil confidenti informati under sea Civil Loc Rule 79-5 sets forth t
le
le
ial
ion
al;
cal
5
the

11

procedur that must be followed and the sta
res
t
d
andards that w be appli when a p
will
ied
party seeks p
permission

12
2

from the court to file material un
nder seal.

13
3

2.

14
4
15
5

DEFINITION
D
NS
2.1

Challe
enging Party a Party or Non-Party t
y:
that challeng the desig
ges
gnation of inf
formation or
r

items und this Orde
der
er.

16
6

2.2

“CON
NFIDENTIA Informat
AL”
tion or Items informatio (regardles of how it i generated,
s:
on
ss
is

17
7

stored or maintained) or tangible things that qualify for p
r
)
e
q
protection un
nder Federal Rule of Civ Procedure
l
vil
e

18
8

26(c).

19
9

2.3

Couns (without qualifier): Outside Coun of Reco and Hous Counsel ( well as
sel
O
nsel
ord
se
(as

20
0

their supp staff).
port

21

2.4

Desig
gnating Party a Party or Non-Party th designat informati or items that it
y:
hat
tes
ion

22
2

produces in disclosur or in resp
s
res
ponses to dis
scovery as “C
CONFIDEN
NTIAL” or “HIGHLY

23
3

CONFID
DENTIAL – ATTORNEY EYES ONLY” or “ HIGHLY CONFIDENT
YS’
O
TIAL – SOU
URCE

24
4

CODE”.

25
5

2.5

Disclo
osure or Disc
covery Mate
erial: all item or inform
ms
mation, regard
dless of the m
medium or

26
6

manner in which it is generated, stored, or maintained (in
s
m
ncluding, am
mong other th
hings, testim
mony,

27
7

transcript and tangi things), that are prod
ts,
ible
duced or gen
nerated in disclosures or responses to discovery
o

28
8

in this matter.
2
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

2.6

Exper a person with speciali
rt:
w
ized knowled or exper
dge
rience in a m
matter pertine to the
ent

2

litigation who (1) has been retain by a Part or its coun to serve as an exper witness or as a
n
s
ned
ty
nsel
e
rt

3

consultan in this acti (2) is no a past or current empl
nt
ion,
ot
c
loyee of a Pa or of a P
arty
Party’s comp
petitor, and

4

(3) at the time of rete
e
ention, is not anticipated to become a employee of a Party o of a Party
t
d
an
e
or
y’s

5

competitor.

6

2.7

“HIGH
HLY CONF
FIDENTIAL – ATTORN
NEYS’ EYES ONLY” In
nformation o Items:
or

7

extremely sensitive “Confidentia Informatio or Items,” disclosure o which to another Part or Nony
“
al
on
”
of
ty

8

Party wo
ould create a substantial risk of seriou harm that could not b avoided by less restric
r
us
t
be
y
ctive means.

9

2.8

“HIGH
HLY CONF
FIDENTIAL – SOURCE CODE” Inf
E
formation or Items: extr
r
remely

10
0

sensitive “Confidenti Informati or Items” representin computer code and as
ial
ion
”
ng
r
ssociated com
mments and
d

11

revision histories, for
h
rmulas, engi
ineering spec
cifications, o schematic that define or otherwis describe in
or
cs
e
se
i

12
2

detail the algorithms or structure of software or hardware designs, di
e
e
isclosure of w
which to ano
other Party or
o

13
3

Non-Part would cre a substan
ty
eate
ntial risk of serious harm that could not be avoid by less r
m
ded
restrictive

14
4

means.

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2.9

House Counsel: at
e
ttorneys who are employ
o
yees of a par to this ac
rty
ction. House Counsel

does not include Outside Counse of Record or any other outside cou
el
r
unsel.
2.10

Non-P
Party: any na
atural person partnership corporatio associati
n,
p,
on,
ion, or other legal entity

not name as a Party to this actio
ed
y
on.
2.11

Outsid Counsel of Record: attorneys who are not em
de
o
o
mployees of a party to thi action but
is

20
0

are retain to repres or advise a party to this action a have app
ned
sent
t
and
peared in this action on b
s
behalf of that
t

21

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

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25
5
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6

2.12

Party: any party to this action, including a of its offic
:
o
all
cers, directo employees,
ors,

consultan retained experts, and Outside Co
nts,
d
ounsel of Re
ecord (and th support s
heir
staffs).
2.13

Produ
ucing Party: a Party or Non-Party tha produces D
at
Disclosure o Discovery Material in
or
y

this actio
on.
2.14

Profes
ssional Vend
dors: persons or entities that provide litigation su
s
e
upport servic (e.g.,
ces

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7

photocop
pying, videot
taping, trans
slating, prepa
aring exhibit or demons
ts
strations, and organizing storing, or
g,
r

28
8

retrieving data in any form or me
g
y
edium) and their employ
t
yees and subc
contractors.
3
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

2.15

2.16

Protected Material: an Disclosure or Discove Material that is desig
M
ny
e
ery
gnated as

2

“CONFID
DENTIAL,” “HIGHLY CONFIDEN
”
NTIAL – AT
TTORNEYS EYES ON
S’
NLY.” or as “
“HIGHLY

3

CONFID
DENTIAL – SOURCE CODE.”
C

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2.16

5

Party.

6

3.

Receiv
ving Party: a Party that receives Dis
r
sclosure or D
Discovery M
Material from a Producing
g

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SCOPE
The protectio conferred by this Stip
T
ons
d
pulation and Order cover not only Pr
d
r
rotected Mat
terial (as

8

defined above), but also (1) any information copied or ex
a
a
i
xtracted from Protected M
m
Material; (2) all copies,
)

9

excerpts, summaries, or compilat
,
,
tions of Prot
tected Mater
rial; and (3) a testimon conversa
any
ny,
ations, or

10
0

presentat
tions by Part or their Counsel that might revea Protected Material. However, the protections
ties
C
t
al

11

conferred by this Stip
d
pulation and Order do no cover the following in
d
ot
nformation: ( any infor
(a)
rmation that

12
2

is in the public doma at the tim of disclosu to a Rece
p
ain
me
ure
eiving Party or becomes part of the public
y
s

13
3

domain after its discl
a
losure to a Receiving Pa as a resu of publica
R
arty
ult
ation not inv
volving a violation of this
s

14
4

Order, in
ncluding beco
oming part of the public record throu trial or o
o
c
ugh
otherwise; a (b) any in
and
nformation

15
5

known to the Receivi Party pri to the dis
o
ing
ior
sclosure or o
obtained by t Receivin Party after the
the
ng
r

16
6

disclosur from a sou who obt
re
urce
tained the in
nformation la
awfully and under no ob
bligation of

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7

confident
tiality to the Designating Party. Any use of Prot ected Mater at trial sh be gover
g
y
rial
hall
rned by a

18
8

separate agreement or order.
o

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9

4.

20
0

DURATION
D
Even after fin dispositio of this liti
E
nal
on
igation, the c
confidentiali obligations imposed by this Orde
ity
er

21

shall rem in effect until a Designating Par agrees oth
main
t
rty
herwise in w
writing or a c
court order o
otherwise

22
2

directs. Final disposition shall be deemed to be the later o (1) dismis of all cla
F
e
b
of
ssal
aims and defenses in this

23
3

action, with or without prejudice; and (2) final judgment herein after the complet
w
r
tion and exh
haustion of all
a

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4

appeals, rehearings, remands, tria or review of this ac
r
r
als,
ws
ction, includi the time limits for fil
ing
ling any

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5

motions or applicatio for exten
o
ons
nsion of time pursuant to applicable law.
e
o

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6

5.

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7
28
8

DESIGNATI
D
ING PROTE
ECTED MAT
TERIAL
5.1

Exercise of Restra and Care in Designa
aint
e
ating Materia for Protec
al
ction. Each P
Party or Non-

Party tha designates information or items for protection under this O
at
n
r
Order must ta care to limit any suc
ake
ch
4
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

designati to specif material th qualifies under the a
ion
fic
hat
s
appropriate s
standards. To the extent i is practica
o
it
al

2

to do so, the Designa
ating Party must designat for protec
m
te
ction only those parts of material, do
ocuments,

3

items, or oral or writt commun
ten
nications that qualify – so that other portions of t material, documents,
t
o
the
,
,

4

items, or communica
ations for wh protectio is not wa
hich
on
arranted are n swept un
not
njustifiably w
within the

5

ambit of this Order.

6

Mass, indiscr
M
riminate, or routinized de
r
esignations a prohibite Designat
are
ed.
tions that are shown to be
e

7

clearly un
njustified or that have be made for an imprope purpose (e
r
een
er
e.g., to unne
ecessarily en
ncumber or

8

retard the case develo
e
opment proc or to im
cess
mpose unnece
essary expen and burd
nses
dens on othe parties)
er

9

expose th Designati Party to sanctions.
he
ing
s

10
0

If it comes to a Designating Party’s attention that information or items th it designa for
f
a
t
n
hat
ated

11

protection do not qua
alify for prot
tection at all or do not qu
ualify for the level of pro
e
otection init
tially

12
2

asserted, that Designating Party must prompt notify all other partie that it is w
m
tly
l
es
withdrawing the mistaken
n

13
3

designati
ion.

14
4
15
5
16
6
17
7

5.2

Mann and Timin of Design
ner
ng
nations. Exc ept as otherw provide in this Or
wise
ed
rder (see, e.g
g.,

second paragraph of section 5.2(a below), or as otherwis stipulated or ordered, Disclosure or Discovery
a)
r
se
d
,
Material that qualifies for protection under this O
M
r
u
Order must be clearly so designated b
e
before the
material is disclosed or produced
d.

18
8

Designation in conformity with this Order require
D
i
y
O
es:

19
9

(a for inform
a)
mation in doc
cumentary fo (e.g., pa
orm
aper or electr
ronic docum
ments, but exc
cluding

20
0

transcript of deposit
ts
tions or othe pretrial or trial proceed
er
dings), that t Producin Party affix the legend
the
ng
x

21

“CONFID
DENTIAL,” “HIGHLY CONFIDEN
”
NTIAL – AT
TTORNEYS EYES ON
S’
NLY,” or “HI
IGHLY

22
2

CONFID
DENTIAL – SOURCE CODE” to ea page that contains pr
C
ach
t
rotected mate
erial. If only a portion or
y
r

23
3

portions of the mater on a page qualifies fo protection the Produc
rial
e
or
n,
cing Party al must clea identify
lso
arly
y

24
4

the protected portion (e.g., by making appropriate mar
n(s)
rkings in the margins) an must spec
e
nd
cify, for each
h

25
5

portion, the level of protection be
t
p
eing asserted
d.

26
6

A Party or No
on-Party that makes orig
t
ginal docume or mate
ents
erials availab for inspec
ble
ction need

27
7

not desig
gnate them fo protection until after the inspectin Party has indicated w
or
n
t
ng
which materia it would
al

28
8

like copie and produ
ed
uced. During the inspect
g
tion and befo the desig
ore
gnation, all o the materi made
of
ial
5
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

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

2

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

3

Party must determine which documents, or portions thereof, qualify for protection under this Order.

4

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

5

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

6

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

7

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

8

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

9

for each portion, the level of protection being asserted.

10

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

11

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

12

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

13

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

14

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

15

deposition, hearing, or other proceeding is concluded) a right to have up to 14 days to identify the

16

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

17

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

18

within the 14 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a

19

Designating Party may specify, at the deposition or up to 14 days afterwards if that period is properly

20

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

21

– ATTORNEYS’ EYES ONLY.” Portions of the transcript may be designated “HIGHLY

22

CONFIDENTIAL – SOURCE CODE” if material so designated is discussed in the transcript.

23

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

24

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

25

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

26

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

27

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

28

Transcripts containing Protected Material shall have an obvious legend on the title page that the
6
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1

transcript contains Pr
t
rotected Mat
terial, and th title page shall be foll
he
lowed by a li of all pag (including
ist
ges

2

line numbers as appr
ropriate) that have been designated a Protected M
t
d
as
Material and the level of protection
d

3

being ass
serted by the Designating Party. The Designating Party shall inform the court report of these
e
g
e
g
l
ter

4

requirem
ments. Any tr
ranscript that is prepared before the e
t
d
expiration of a 14-day pe
f
eriod for des
signation

5

shall be treated durin that period as if it had been design
t
ng
d
d
nated “HIGH
HLY CONFI
IDENTIAL –

6

ATTORN
NEYS’ EYE ONLY” in its entirety unless othe
ES
n
y
erwise agreed. After the expiration o that period
of
d,

7

the transc
cript shall be treated only as actually designated
e
y
d.

8

(c for inform
c)
mation produ
uced in some form other t
than docume
entary and f any other tangible
for
r

9

items, tha the Producing Party affix in a prom
at
minent place on the exte
e
erior of the c
container or containers in
n

10
0

which the informatio or item is stored the le
e
on
egend “CON
NFIDENTIA
AL,” “HIGHL CONFID
LY
DENTIAL –

11

ATTORN
NEYS’ EYE ONLY,” or “HIGHLY CONFIDE
ES
o
Y
ENTIAL – S
SOURCE CO
ODE”]. If on a portion
nly

12
2

or portion of the inf
ns
formation or item warran protection the Produc
nt
n,
cing Party, to the extent p
o
practicable,

13
3

shall iden
ntify the protected portio
on(s) and spe
ecify the lev of protect
vel
tion being as
sserted.

14
4

5.3

Inadvertent Failur to Design
res
nate. If timel corrected, an inadvert failure to designate
ly
,
tent

15
5

qualified information or items do not, stand
d
n
oes
ding alone, w
waive the De
esignating P
Party’s right to secure

16
6

protection under this Order for su material Upon time correction of a design
uch
l.
ely
n
nation, the R
Receiving

17
7

Party mu make reas
ust
sonable efforts to assure that the mat
e
terial is treat in accord
ted
dance with t provision
the
ns

18
8

of this Or
rder.

19
9

6.

20
0

CHALLENG
C
GING CONFIDENTIALI
ITY DESIGN
GNATIONS
6.1

Timin of Challen
ng
nges. Any Pa or Nonarty
-Party may c
challenge a d
designation o
of

21

confident
tiality at any time. Unles a prompt challenge to a Designati Party’s c
y
ss
o
ing
confidentiality

22
2

designati is necess
ion
sary to avoid foreseeable substantial unfairness, unnecessary economic burdens, or a
d
e,
l
y

23
3

significan disruption or delay of the litigatio a Party do not waiv its right to challenge a
nt
n
f
on,
oes
ve
o

24
4

confident
tiality design
nation by ele
ecting not to mount a ch
o
hallenge prom
mptly after th original d
he
designation is
i

25
5

disclosed
d.

26
6

6.2

Meet and Confer. The Challen
nging Party shall initiate the dispute resolution p
e
process by

27
7

providing written not of each designation it is challeng
g
tice
ging and des
scribing the basis for eac challenge
ch
e.

28
8

To avoid ambiguity as to whethe a challenge has been m
d
a
er
made, the wr
ritten notice must recite t the
that
7
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

challenge to confiden
e
ntiality is being made in accordance with this sp
pecific paragr
raph of the P
Protective

2

Order. Th parties sh attempt to resolve ea challenge in good faith and must begin the p
he
hall
t
ach
t
process by

3

conferrin directly (i voice to vo dialogu other form of comm
ng
in
oice
ue;
ms
munication ar not suffici
re
ient) within 5

4

days of th date of se
he
ervice of not
tice. In confe
erring, the C
Challenging P
Party must explain the basis for its

5

belief tha the confid
at
dentiality des
signation wa not proper and must gi the Desig
as
r
ive
gnating Part an
ty

6

opportun to review the designa materia to reconsi
nity
w
ated
al,
ider the circu
umstances, a
and, if no cha
ange in

7

designati is offered to explain the basis fo the chosen designation A Challen
ion
d,
n
or
n
n.
nging Party m proceed
may
d

8

to the nex stage of th challenge process onl if it has en
xt
he
e
ly
ngaged in this meet and confer proce first or
ess

9

establishes that the Designating Party is unw
D
P
willing to part
ticipate in th meet and confer proce in a
he
ess

10
0
11

timely manner.
m
6.3

Judici Interventi
ial
ion. If the Parties cann resolve a challenge without cou
P
not
urt

12
2

interven
ntion, the pa
arties shall follow the Court’s Stan
f
C
nding Order in Civil Ca regardi
r
ases
ing

13
3

Discover and Disco
ry
overy Motio
ons. The pa
arties may fi a joint le
file
etter brief r
regarding re
etaining

14
4

confiden
ntiality within 21 days of the initial notice of c hallenge or within 14 d
o
l
days of the p
parties

15
5

agreeing that the meet and con process will not res
g
nfer
solve their d
dispute, whi
ichever is ea
arlier.

16
6

Failure by a Designating Party to file such discovery d
b
y
h
dispute lette within th applicabl 21 or 14
er
he
le

17
7

day period (set forth above) with the Cour shall auto
h
rt
omatically w
waive the co
onfidentialit
ty

18
8

designat
tion for each challenged designatio If, after submitting a joint letter brief, the Court
h
d
on.
g
e

19
9

allows th a motion may be fil any such motion m
hat
n
led,
must be acco
ompanied by a compete
y
ent

20
0

declaration affirmin that the movant has complied w the mee and confe requirem
ng
m
with
et
er
ments

21

d
ceding parag
graph. The Court, in it discretion may elect to transfer the
e
ts
n,
t
r
imposed in the prec

22
2

discover matter to a Magistra Judge.
ry
ate

23
3

In addition, the parties may file a jo letter b
n
t
m
oint
brief regard
ding a challe
enge to a con
nfidentiality
y

24
4

designat
tion at any time if there is good cau for doin so, includ
t
e
use
ng
ding a challe
enge to the d
designation

25
5

of a depo
osition transcript or an portions thereof. If, after subm
ny
t
mitting a join letter brie the Cour
nt
ef,
rt

26
6

allows th a motion may be fil any mot
hat
n
led,
tion brough pursuant to this prov
ht
vision must be

27
7

accompa
anied by a competent declaration affirming th the mov
c
d
a
hat
vant has com
mplied with the meet

28
8

and conf requirem
fer
ments impos by the preceding pa
sed
p
aragraph. T Court, in its discre
The
etion, may
8
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

elect to refer the dis
r
scovery mat to a Ma
tter
agistrate Jud
dge.

2

The burden of persuasio in any su challeng proceedin shall be o the Desig
T
on
uch
ge
ng
on
gnating

3

Party. Frivolous cha
allenges, an those mad for an im
nd
de
mproper pur
rpose (e.g., to harass or impose
r

4

unnecess
sary expens and burd
ses
dens on othe parties) m expose the Challen
er
may
nging Party to
y

5

sanction Unless th Designating Party ha waived th confident
ns.
he
as
he
tiality desig
gnation by fa
ailing to file
e

6

a letter brief to reta confiden
b
ain
ntiality as de
escribed abo all part shall continue to af
ove,
ties
fford the

7

material in question the level of protection to which it is entitled under the P
l
n
n
t
Producing P
Party’s

8

designat
tion until the court rule on the cha
es
allenge.

9

7.

10
0

ACCESS TO AND USE OF PROTECTED MAT
A
O
TERIAL
7.1

Basic Principles. A Receiving Party may u Protecte Material t is disclo
g
use
ed
that
osed or

11

produced by another Party or by a Non-Party in connecti with this case only fo prosecutin
d
y
ion
s
for
ng,

12
2

defending, or attempting to settle this litigation. Such Pro
e
otected Mate
erial may be disclosed only to the
e

13
3

categorie of persons and under the condition described in this Orde When the litigation h been
es
s
t
ns
d
er.
e
has

14
4

terminate a Receivi Party mu comply with the prov
ed,
ing
ust
w
visions of se
ection 15 bel (FINAL
low
L

15
5

DISPOSI
ITION).

16
6
17
7
18
8

Protected Ma
aterial must be stored and maintained by a Recei
b
d
d
iving Party a a location and in a
at
secure manner that en
m
nsures that access is lim
a
mited to the p ersons autho
orized under this Order.
r
7.2

Disclo
osure of “CO
ONFIDENTI
IAL” Inform
mation or Item Unless o
ms.
otherwise or
rdered by the
e

19
9

court or permitted in writing by the Designat
p
t
ting Party, a Receiving P
Party may di
isclose any in
nformation

20
0

or item designated “C
d
CONFIDEN
NTIAL” only to:
y

21

(a the Receiv
a)
ving Party’s Outside Cou
unsel of Rec
cord in this a
action, as we as employ
ell
yees of said

22
2

Outside Counsel of Record to wh
C
R
hom it is reasonably nec essary to dis
sclose the information fo this
or

23
3

litigation and who ha signed th “Acknowledgment an Agreemen to Be Bou
n
ave
he
nd
nt
und” that is a
attached

24
4

hereto as Exhibit A;
s

25
5

(b the officer directors, and employ
b)
rs,
,
yees (includi House C
ing
Counsel) of th Receiving Party to
he
g

26
6

whom disclosure is reasonably necessary for this litigatio and who h
r
r
on
have signed the “Ackno
d
owledgment

27
7

and Agre
eement to Be Bound” (Exhibit A);
e

28
8

(c Experts (a defined in this Order) of the Recei
c)
as
n
iving Party t whom dis
to
sclosure is re
easonably
9
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

necessary for this liti
y
igation and who have sig
w
gned the “Ac
cknowledgm and Agr
ment
reement to B Bound”
Be

2

(Exhibit A) and (3) as to whom the procedures set forth i paragraph 7.4(a)(2), b
a
in
h
below, have b
been

3

followed
d;

4

(d the court and its perso
d)
a
onnel;

5

(e court repo
e)
orters and the staff;
eir

6

(f profession jury or tri consultan mock jur
f)
nal
ial
nts,
rors, and Pro
ofessional V
Vendors to wh
hom

7

disclosur is reasonab necessar for this lit
re
bly
ry
tigation and who have si
igned the “A
Acknowledgm and
ment

8

Agreeme to Be Bou
ent
und” (Exhib A) or are bound by a c
bit
b
confidentiali agreemen with prote
ity
nt
ections at

9

least as stringent as th
hose in this Order;

10
0

(g during the deposition witnesses in the actio to whom disclosure is reasonably necessary
g)
eir
ns,
on
y

11

and who have signed the “Ackno
d
owledgment and Agreem to Be B
ment
Bound” (Exhi A), unle otherwise
ibit
ess
e

12
2

agreed by the Design
y
nating Party or ordered by the court. Witnesses w are curr employe of the
b
who
rent
ees

13
3

producin party need not sign the Acknowled
ng
d
e
dgement and Agreement to be Boun to be show the
d
t
nd
wn

14
4

producin party’s Pro
ng
otected Mate
erial. Pages of transcrib depositio testimony or exhibits to
bed
on
y

15
5

depositio that reveal Protected Material mu be separa
ons
ust
ately bound by the court reporter and may not be
t
d
e

16
6

disclosed to anyone except as per
d
e
rmitted unde this Stipul
er
lated Protect Order
tive

17
7
18
8
19
9

(h the author or recipient of a docum containi the infor
h)
r
t
ment
ing
rmation or a custodian or other
r
person who otherwise possessed or knew the information
w
e
n.
7.3

Disclo
osure of “HI
IGHLY CON
NFIDENTIA – ATTOR
AL
RNEYS’ EY ONLY” and
YES
”

20
0

“HIGHLY CONFIDE
ENTIAL – SOURCE CO
S
ODE” Inform
mation or Ite
ems. Unless otherwise o
ordered by th
he

21

court or permitted in writing by the Designat
p
t
ting Party, a Receiving P
Party may di
isclose any in
nformation

22
2

or item designated “H
d
HIGHLY CO
ONFIDENTIAL – ATTO
ORNEYS’ E
EYES ONLY or “HIGH
Y”
HLY

23
3

CONFID
DENTIAL – SOURCE CODE” (subj to the pr
C
ject
rovisions in Section 9 of this Order) only to:
f

24
4

(a the Receiv
a)
ving Party’s Outside Cou
unsel of Rec
cord in this a
action, as we as employ
ell
yees of said

25
5

Outside Counsel of Record to wh
C
R
hom it is reasonably nec essary to dis
sclose the information fo this
or

26
6

litigation and who ha signed th “Acknowledgment an Agreemen to Be Bou
n
ave
he
nd
nt
und” that is a
attached

27
7

hereto as Exhibit A;
s

28
8

(c Experts of the Receivi Party (1) to whom di
c)
f
ing
)
isclosure is r
reasonably n
necessary for this
10
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

litigation (2) who ha signed th “Acknowl
n,
ave
he
ledgment an Agreemen to Be Bou
nd
nt
und” (Exhibi A), and (3)
it
)

2

as to who the proce
om
edures set fo in paragr
orth
raph 7.4(a)(2 below, ha been fol
2),
ave
llowed;

3

(d the court and its perso
d)
a
onnel;

4

(e court repo
e)
orters and the staff;
eir

5

(f profession jury or tri consultan mock jur
f)
nal
ial
nts,
rors, and Pro
ofessional Ve
endors to wh
hom

6

disclosur is reasonab necessar for this lit
re
bly
ry
tigation and who have si
igned the “A
Acknowledgm and
ment

7

Agreeme to Be Bou
ent
und” (Exhib A) or are bound by a c
bit
b
confidentiali agreemen with prote
ity
nt
ections at

8

least as stringent as th
hose in this Order;

9

(g during the deposition witnesses in the actio to whom disclosure is reasonably necessary
g)
eir
ns,
on
y

10
0

and who have signed the “Ackno
d
owledgment and Agreem to Be B
ment
Bound” (Exhi A), unle otherwise
ibit
ess
e

11

agreed by the Design
y
nating Party or ordered by the court. Witnesses w are curr employe of the
b
who
rent
ees

12
2

producin party need not sign the Acknowled
ng
d
e
dgement and Agreement to be Boun to be show the
d
t
nd
wn

13
3

producin party’s Pro
ng
otected Mate
erial. Pages of transcrib depositio testimony or exhibits to
bed
on
y

14
4

depositio that reveal Protected Material mu be separa
ons
ust
ately bound by the court reporter and may not be
t
d
e

15
5

disclosed to anyone except as per
d
e
rmitted unde this Stipul
er
lated Protect Order; a
tive
and

16
6
17
7
18
8

(g the author or recipient of a docum containi the infor
g)
r
t
ment
ing
rmation or a custodian or other
r
person who otherwise possessed or knew the information
w
e
n.
7.4

Procedures for Ap
pproving or Objecting to Disclosure of “HIGHL CONFIDENTIAL –
O
o
LY

19
9

ATTORN
NEYS’ EYE ONLY” or “HIGHLY CONFIDE
ES
o
Y
ENTIAL – SO
OURCE CO
ODE” Inform
mation or

20
0

Items to or Experts.

21

a) (a)Unless otherwise ordered by the court or agreed to in writing by the Designa
)(1)
e
r
n
ating Party, a

22
2

Party tha seeks to di
at
isclose to an Expert (as defined in th Order) an informatio or item th has been
d
his
ny
on
hat

23
3

designate “HIGHLY CONFIDE
ed
Y
ENTIAL – ATTORNEY EYES O
A
YS’
ONLY” or “H
HIGHLY

24
4

CONFID
DENTIAL – SOURCE CODE” pursu to parag
C
uant
graph 7.3(c) first must m
make a writte request to
en
o

25
5

the Desig
gnating Party that (1) ide
y
entifies the general categ
g
gories of “HI
IGHLY CON
NFIDENTIA –
AL

26
6

ATTORN
NEYS’ EYE ONLY” or “HIGHLY CONFIDE
ES
o
Y
ENTIAL – SO
OURCE CO
ODE” inform
mation that th
he

27
7

Receivin Party seek permission to disclose to the Expe (2) sets f
ng
ks
n
e
ert,
forth the full name of the Expert and
e
d

28
8

the city and state of his or her pri
a
h
imary reside
ence, (3) atta
aches a copy of the Expe
ert’s current resume, (4)
11
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

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

2

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

3

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

4

five years,1 and (6) identifies (by name and number of the case, filing date, and location of court) any

5

litigation in connection with which the Expert has offered expert testimony, including through a

6

declaration, report, or testimony at a deposition or trial, during the preceding five years.

7

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

8

respective paragraphs may disclose the subject Protected Material to the identified Expert unless, within

9

7 days of delivering the request, the Party receives a written objection from the Designating Party. Any

10

such objection must set forth in detail the grounds on which it is based.

11

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

12

Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within five days

13

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

14

Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-

15

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

16

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

17

reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any additional

18

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

19

competent declaration describing the parties’ efforts to resolve the matter by agreement (i.e., the extent

20

and the content of the meet and confer discussions) and setting forth the reasons advanced by the

21

Designating Party for its refusal to approve the disclosure.

22

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

23

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

24

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

25
26
1

27
28

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.
12
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1

8.

2

PROSECUTION BAR
Absent written consent from the Producing Party, any individual who receives access to Fitbit’s

3

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

4

SOURCE CODE” information shall not be involved in the prosecution of patents or patent applications

5

relating to the functionality, operation, and design of software or hardware relating to the technology

6

disclosed in any of the patents-in-suit or relating to devices containing health, activity or fitness tracking

7

including without limitation the patents asserted in this action and any patent or application claiming

8

priority to or otherwise related to the patents asserted in this action, before any foreign or domestic

9

agency, including the United States Patent and Trademark Office (“the Patent Office”).

10

For purposes of this paragraph, “prosecution” includes directly or indirectly advising on,

11

consulting on, preparing, prosecuting, drafting, editing, and/or amending of applications, specifications,

12

claims, and/or responses to office actions, or otherwise affecting the disclosure in patent applications or

13

specifications or the scope or maintenance of patent claims.2 To avoid any doubt, “prosecution” as used

14

in this paragraph does not include representing a party challenging a patent before a domestic or foreign

15

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

16

reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL –

17

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

18

received by the affected individual and shall end two (2) years after final termination of this action.

19

9.

SOURCE CODE
(a)

20

To the extent production of source code becomes necessary in this case, a Producing Party

21

may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” if it comprises or

22

includes confidential, proprietary or trade secret source code.
(b)

23

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

24

be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

25

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

26

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

27
28

2

Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.
13
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1
2

be disclosed, as set forth in Paragraphs 7.3 and 7.4.
(c)

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

3

allowing it to be reasonably reviewed and searched, during normal business hours (9 am to 5:30 pm local

4

time) on weekdays or at other mutually agreeable times, at an office of the Producing Party’s counsel (if

5

Fitbit is the producing party, in the San Francisco Bay Area) or another mutually agreed upon location.

6

The source code shall be made available for inspection on a secured computer in a secured room without

7

Internet access or network access to other computers, and the Receiving Party shall not copy, remove, or

8

otherwise transfer any portion of the source code onto any recordable media or recordable device. The

9

Producing Party may visually monitor (from outside the review room) the activities of the Receiving

10

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

11

recording, copying, or transmission of the source code. No recordable media or recordable devices,

12

including without limitation sound recorders, computers, cellular telephones, peripheral equipment,

13

cameras, CDs, DVDs, USB flashdrives, or drives of any kind, shall be permitted into the Source Code

14

Review Room, except a wireless-disabled, camera-disabled computer provided by the Receiving Party,

15

for notetaking purposes. (d) The Receiving Party shall provide seven days’ notice before any inspection

16

of the persons who will review Source Code on behalf of a Receiving Party and the Source Code to be

17

reviewed, for the first time that such person reviews Source Code. The Producing Party may object in

18

writing within three court days of such notice. The Receiving Party shall provide at least three days’

19

notice for any subsequent inspections. Any expert or consultant proposed to review the Source Code

20

must have been previously qualified pursuant to paragraph 7.4 of this Order.

21

(d)

The Receiving Party may request (by file name and line number) paper copies of limited

22

portions of source code that are reasonably necessary for the preparation of court filings, pleadings,

23

expert reports, or other papers, or for deposition or trial, but shall not request paper copies for the

24

purposes of reviewing the source code other than electronically as set forth in paragraph (c) in the first

25

instance. The Producing Party shall provide all such source code in paper form including bates numbers

26

and the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Receiving Party shall be

27

presumptively limited to 500 printed pages of those portions of Source Code that it, in good faith,

28

considers necessary to the preparation of its case. The Receiving Party may not request any printed copy
14
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1

of more than 35 consecutive pages (8.5” x 11”, 12-point font) of Source Code without the express

2

consent of the Producing Party or an order from the Court. The Producing Party may challenge the

3

amount of source code requested in hard copy form pursuant to the dispute resolution procedure and

4

timeframes set forth in Paragraph 6 whereby the Producing Party is the “Challenging Party” and the

5

Receiving Party is the “Designating Party” for purposes of dispute resolution.

6

(e)

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

7

portion of the source code in electronic or paper form. The Receiving Party shall maintain all paper

8

copies of any printed portions of the source code in a secured, locked area. The Receiving Party shall not

9

create any electronic or other images of the paper copies and shall not convert any of the information

10

contained in the paper copies into any electronic format. The Receiving Party shall only make additional

11

paper copies if such additional copies are (1) necessary to prepare court filings, pleadings, or other papers

12

(including a testifying expert’s expert report), (2) necessary for deposition, or (3) otherwise necessary for

13

the preparation of its case. Any paper copies used during a deposition shall be retrieved by the Producing

14

Party at the end of each day and must not be given to or left with a court reporter or any other

15

unauthorized individual.

16

10.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION

17
If a Party is served with a subpoena or a court order issued in other litigation that compels
18
disclosure of any information or items designated in this action as “CONFIDENTIAL,” “HIGHLY
19
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
20
CODE” that Party must:
21
(a) promptly notify in writing the Designating Party. Such notification shall include a copy of the
22
subpoena or court order;
23
(b) promptly notify in writing the party who caused the subpoena or order to issue in the other
24
litigation that some or all of the material covered by the subpoena or order is subject to this Protective
25
Order. Such notification shall include a copy of this Stipulated Protective Order; and
26
(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating
27
Party whose Protected Material may be affected.
28
15
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1

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

2

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

3

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

4

SOURCE CODE” before a determination by the court from which the subpoena or order issued, unless

5

the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burden

6

and expense of seeking protection in that court of its confidential material – and nothing in these

7

provisions should be construed as authorizing or encouraging a Receiving Party in this action to disobey

8

a lawful directive from another court.

9

11.

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

10
(a)

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

11
action and designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
12
ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such information produced by Non13
Parties in connection with this litigation is protected by the remedies and relief provided by this Order.
14
Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional
15
protections.
16
(b)

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

17
Party’s confidential information in its possession, and the Party is subject to an agreement with the Non18
Party not to produce the Non-Party’s confidential information, then the Party shall:
19
1.

promptly notify in writing the Requesting Party and the Non-Party that some or all of the

20
information requested is subject to a confidentiality agreement with a Non-Party;
21
2.

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

22
litigation, the relevant discovery request(s), and a reasonably specific description of the information
23
requested; and
24
3.

make the information requested available for inspection by the Non-Party.

(c)

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

25
26
receiving the notice and accompanying information, the Receiving Party may produce the Non-Party’s
27
confidential information responsive to the discovery request. If the Non-Party timely seeks a protective
28
16
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1

order, the Receiving Party shall not produce any informa
e
n
ation in its po
ossession or control that is subject to
r
t
o

2

the confidentiality ag
greement wit the Non-P
th
Party before a determina
ation by the c
court. Absen a court
nt

3

order to the contrary, the Non-Pa shall bea the burden and expens of seeking protection in this court
t
,
arty
ar
n
se
g
t

4

of its Pro
otected Mate
erial.

5

12.

6

UNAUTHOR
U
RIZED DISC
CLOSURE OF PROTEC
O
CTED MATERIAL
If a Receiving Party learn that, by in
f
g
ns
nadvertence o otherwise it has discl
or
e,
losed Protec Material
cted
l

7

to any pe
erson or in an circumsta
ny
ance not auth
horized unde this Stipul
er
lated Protect Order, t Receiving
tive
the

8

Party mu immediat (a) notify in writing the Designa
ust
tely
fy
ating Party o the unauth
of
horized disclo
osures, (b)

9

use its be efforts to retrieve all unauthorized copies of t Protected Material, ( inform th person or
est
d
the
d
(c)
he

10
0

persons to whom una
t
authorized disclosures were made of all the term of this Ord and (d) request such
w
f
ms
der,
h

11

person or persons to execute the “Acknowled
r
dgment and Agreement t Be Bound that is atta
to
d”
ached hereto
o

12
2

as Exhibi A.
it

13
3

13.

IN
NADVERTE
ENT PRODU
UCTION OF PRIVILEG
F
GED OR OT
THERWISE PROTECTE
ED
MATERIAL
M

14
4
When a Produ
W
ucing Party gives notice to Receivin Parties tha certain ina
ng
at
advertently p
produced
15
5
material is subject to a claim of privilege or other protect
p
o
tion, the obli
igations of th Receiving Parties are
he
e
16
6
those set forth in Fed
deral Rule of Civil Proce
f
edure 26(b)(5
5)(B). This p
provision is not intended to modify
d
17
7
whatever procedure may be estab
r
m
blished in an e-discovery order that p
n
y
provides for production without prio
r
or
18
8
privilege review. Pur
rsuant to Fed
deral Rule of Evidence 5
f
502(d) and (e insofar as the parties reach an
e),
s
19
9
agreemen on the effe of disclo
nt
fect
osure of a com
mmunication or informa
n
ation covered by the atto
d
orney-client
20
0
privilege or work pro
oduct protect
tion, the part may inc
ties
corporate the agreemen in the stipu
eir
nt
ulated
21
protectiv order subm
ve
mitted to the court.
22
2
14.

MISCELLAN
M
NEOUS

23
3
14
4.1

Right to Further Relief. Nothi in this O rder abridge the right o any person to seek its
R
ing
es
of
n

24
4
modifica
ation by the court in the future.
c
f
25
5
14
4.2

Right to Assert Ot
ther Objectio By stipu
ons.
ulating to th entry of th Protective Order no
he
his
e

26
6
Party waives any righ it otherwise would ha to object to disclosin or produci any infor
ht
ave
ng
ing
rmation or
27
7
item on any ground not addressed in this Stip
a
n
d
pulated Prote
ective Order Similarly, no Party wa
r.
aives any
28
8
17
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

right to object on any ground to use in eviden of any of the materia covered by this Protec
o
y
u
nce
al
ctive Order.

2

14
4.3

Filing Protected Material. Wit
g
M
thout written permission from the D
n
n
Designating P
Party or a

3

court ord secured after appropr
der
a
riate notice to all interest persons, a Party may not file in t public
ted
y
the

4

record in this action any Protecte Material. A Party that seeks to file under seal any Protecte Material
n
a
ed
t
e
ed

5

must com
mply with Ci Local Ru 79-5. Pro
ivil
ule
otected Mate
erial may on be filed u
nly
under seal pu
ursuant to a

6

court ord authorizin the sealin of the spe
der
ng
ng
ecific Protect Material at issue. Pu
ted
l
ursuant to Civ Local
vil

7

Rule 79-5, a sealing order will issue only upo a request establishing that the Pro
o
on
g
otected Mate
erial at issue

8

is privileged, protecta as a trad secret, or otherwise e
able
de
r
entitled to pr
rotection und the law. I a
der
If

9

Receivin Party's req
ng
quest to file Protected Material under seal pursua to Civil L
P
M
r
ant
Local Rule 7
79-5(e) is

10
0

denied by the court, then the Rec
y
t
ceiving Party may file th Protected Material in t public re
y
he
the
ecord

11

pursuant to Civil Loc Rule 79-5
cal
5(e)(2) unles otherwise instructed b the court.
ss
e
by

12
2

15.

13
3

FINAL DISP
POSITION
Within 60 day after the final disposit
W
ys
f
tion of this a
action, as de
efined in para
agraph 4, ea Receiving
ach

14
4

Party mu return all Protected Material to th Producing Party or de
ust
M
he
g
estroy such m
material. De
estruction of

15
5

Protected Materials shall be acco
d
s
omplished by a reasonab means sel
y
ble
lected by the Producing Party. As
e

16
6

used in th subdivisi “all Prot
his
ion,
tected Mater
rial” include all copies, abstracts, co
es
ompilations, summaries,
,

17
7

and any other format reproducing or capturin any of the Protected M
o
t
g
ng
e
Material. Wh
hether the Pr
rotected

18
8

Material is returned or destroyed the Receiving Party mu submit a written cert
o
d,
ust
tification to t
the

19
9

ng
d,
s
o
ating Party) by the 60-da deadline
ay
Producin Party (and if not the same person or entity, to the Designa

20
0

that (1) id
dentifies (by category, where approp
y
w
priate) all the Protected M
e
Material tha was returned or
at

21

destroyed and (2) aff
d
firms that the Receiving Party has no retained an copies, ab
e
ot
ny
bstracts, com
mpilations,

22
2

summaries or any oth format re
her
eproducing or capturing any of the P
o
Protected Ma
aterial. Notw
withstanding

23
3

this provision, Couns are entitle to retain an archival c
sel
ed
a
copy of all p
pleadings, motion papers trial,
s,

24
4

depositio and heari transcrip legal mem
on,
ing
pts,
moranda, co
orrespondenc depositio and trial e
ce,
on
exhibits,

25
5

expert reports, attorn work pro
ney
oduct, and co
onsultant and expert wor product, e
d
rk
even if such materials

26
6

contain Protected Ma
P
aterial. Any such archiva copies tha contain or constitute P
al
at
Protected Ma
aterial remain
n

27
7

subject to this Protec
o
ctive Order as set forth in Section 4 (
a
n
(DURATION
N).

28
8
18
STI
IPULATED PR
ROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, H
O
N
G
HIGHLY SENSITIVE
CONFIDENT
TIAL INFORM
MATION AND
D/OR TRADE SECRETS / C
CASE NO. 4:17
7-CV-06543-Y
YGR

1

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

2
3

DATED:

/s/ Marc Belloli
Attorneys for Plaintiff

DATED:

/s/ Eugene Novikov
Attorneys for Defendant

4
5
6
7

PURSUANT TO STIPULATION, IT IS SO ORDERED.

8
9
10
11

DATED: ________________________
March 13, 2018
____________________________________
The Honorable Yvonne Gonzalez Rogers
United States District Judge

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of _________________ [print or

4

type full address], declare under penalty of perjury that I have read in its entirety and understand the

5

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

6

of California on [date] in the case of ___________ [insert formal name of the case and the number

7

and initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this

8

Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me

9

to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any

10

manner any information or item that is subject to this Stipulated Protective Order to any person or entity

11

except in strict compliance with the provisions of this Order.

12

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

13

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

14

such enforcement proceedings occur after termination of this action.

15

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

16

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

17

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

18

enforcement of this Stipulated Protective Order.

19
20

Date: _________________________________

21

City and State where sworn and signed: _________________________________

22

Printed name: ______________________________
[printed name]

23
24
25

Signature: __________________________________
[signature]

26
27
28
20
STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS / CASE NO. 4:17-CV-06543-YGR