Gearsource Holdings, LLC v. Google LLC

Filing 43

ORDER by Judge Haywood S. Gilliam, Jr. Granting 42 STIPULATED PROTECTIVE ORDER. (ndrS, COURT STAFF) (Filed on 4/17/2019)

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CHRISTENSON LAW FIRM, LLP
VONN R. CHRISTENSON (CA Bar
No. 244873)
([e-mail])
472 West Putnam Ave.
Porterville, CA 93257
Telephone: [phone]
Facsimile: [phone]

COOLEY LLP
BRENDAN J. HUGHES (Admitted Pro Hac
Vice)
([e-mail])
1299 Pennsylvania Avenue, NW, Ste 700
Washington, DC 20004-2400
Telephone: [phone]
Facsimile: [phone]

Counsel for Plaintiff and Counter-Defendant
GearSource Holdings, LLC

BRIAN J. FOCARINO (CA Bar No. 305382)
([e-mail])
500 Boylston Street, 14th Floor
Boston, MA 02116-3736
Telephone: [phone]
Facsimile: [phone]

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Counsel for Defendant and Counter-Plaintiff
Google LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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GearSource Holdings, LLC, a Florida
company,

v.

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Google LLC, a Delaware company, and Does 1
- 20,

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Defendants.
1.

PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of confidential,

proprietary, or private information for which special protection from public disclosure and from use
for any purpose other than prosecuting this litigation may be warranted. Accordingly, the Parties
hereby stipulate to and petition the Court to enter the following Stipulated Protective Order. The
Parties acknowledge that this Order does not confer blanket protections on all disclosures or responses
to discovery and that the protection it affords from public disclosure and use extends only to the limited
information or items that are entitled to confidential treatment under the applicable legal principles.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED PROTECTIVE ORDER

Plaintiff,

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Case No. 4:18-cv-03812-HSG

[PROPOSED] STIPULATED
PROTECTIVE ORDER

1.
4:18-CV-03812-HSG

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The Parties further acknowledge, as set forth in Section 13.5, below, that this Stipulated Protective

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Order does not entitle them to file confidential information under seal; Civil Local Rule 79-5 sets forth

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the procedures that must be followed and the standards that will be applied when a Party seeks

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permission from the Court to file material under seal.

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2.

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DEFINITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
Civil Procedure 26(c)).
2.3

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

as their support staff).
2.4

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

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

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

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produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY

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

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COUNSEL ONLY”.

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2.6

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

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

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

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discovery in this matter.

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2.7

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

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litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a

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consultant in this action, (2) is not a past or current employee of a Party or of a Party’s competitor,

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and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s

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competitor.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

2.
4:18-CV-03812-HSG

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2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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

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

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restrictive means.

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2.9

“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” Information or

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Items: extremely sensitive “Highly Confidential Information or Items” whose disclosure, even to

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Designated House Counsel, may create a substantial risk of serious harm that could not be avoided by

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less restrictive means.

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2.10

House Counsel: attorneys who are members in good standing of at least one state bar,

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who are employees of a Party, and who have responsibility for managing this action. House Counsel

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

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2.11

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

entity not named as a Party to this action.
2.12

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

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but are retained to represent or advise a Party and have appeared in this action on behalf of that Party

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or are affiliated with a law firm which has appeared on behalf of that Party. The current Outside

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Counsel of Record are Christenson Law Firm, LLP on behalf of Plaintiff and Counter-Defendant

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GearSource Holdings, LLC (“GearSource”) and Cooley LLP on behalf of Defendant and Counter-

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Plaintiff Google LLC (“Google”).

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2.13

Party: any party to this action.

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2.14

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

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in this action.
2.15

Professional Vendors: persons or entities that provide litigation support services (e.g.,

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photocopying, videotaping, translating, transcribing, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium, and professional jury or trial consultants)

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and their employees and subcontractors, who (1) have been retained by a Party or its counsel to provide

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litigation support services with respect to this action, (2) are (including any employees and

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

3.
4:18-CV-03812-HSG

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subcontractors) not a past or current employee of a Party or of a Party’s competitor, and (3) at the time

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of retention, are not anticipated to become an employee of a Party or of a Party’s competitor.
2.16

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

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

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“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY.”
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Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE

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The protections conferred by this Stipulated Protective Order cover not only Protected Material

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(as defined above), but also (1) any information copied or extracted from Protected Material; (2) all

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copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,

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conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

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However, the protections conferred by this Stipulated Protective Order do not cover the following

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information: (a) any information that is in the public domain at the time of disclosure to a Receiving

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Party or that becomes part of the public domain after its disclosure to a Receiving Party as a result of

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publication not involving a violation of this Order, including becoming part of the public record

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through trial or otherwise; and (b) any information known to the Receiving Party prior to the disclosure

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or obtained by the Receiving Party after the disclosure from a source who obtained the information

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lawfully and under no obligation of confidentiality to the Designating Party. Any use of Protected

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Material at trial shall be governed by a separate agreement or order.

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4.

DURATION

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

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Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order

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

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defenses in this action, with or without prejudice; or (2) entry of a final judgment herein after the

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

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including the time limits for filing any motions or applications for extension of time pursuant to

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applicable law.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

4.
4:18-CV-03812-HSG

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5.

DESIGNATING PROTECTED MATERIAL
5.1

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

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

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

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

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material, documents, items, or oral or written communications that qualify – so that other portions of

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the material, documents, items, or communications for which protection is not warranted are not swept

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unjustifiably within the ambit of the designation.

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

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

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encumber or retard the case development process or to impose unnecessary expenses and burdens on

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other Parties) expose the Designating Party to sanctions.

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

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

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asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the

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mistaken designation.

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5.2

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

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

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

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before the material is disclosed or produced.

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Designation in conformity with this Order requires:
(a)

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

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

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

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ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” to each page that contains

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

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if practicable to do so, the Producing Party also must clearly identify the protected portion(s) (e.g., by

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

5.
4:18-CV-03812-HSG

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

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being asserted.

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

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not designate them for protection until after the inspecting Party has indicated which material it would

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like copied and produced. During the inspection and before the designation, all of the material made

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available for inspection shall be deemed “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL

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

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

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

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

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ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY”) to each page that contains

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

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

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markings in the margins) and must specify, for each portion, the level of protection being asserted.
(b)

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

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the Designating Party when practical identify on the record, before the close of the deposition, hearing,

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or other proceeding, all protected testimony and specify the level of protection being asserted. When

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

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

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may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to

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have up to 21 days to identify the specific portions of the testimony as to which protection is sought

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and to specify the level of protection being asserted. Only those portions of the testimony that are

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appropriately designated for protection within the 21 days shall be covered by the provisions of this

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

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to 21 days afterwards if that period is properly invoked, that the entire transcript shall be treated as

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

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CONFIDENTIAL – OUTSIDE COUNSEL ONLY.”

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

6.
4:18-CV-03812-HSG

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Parties shall give the other Parties reasonable notice (a minimum of two business days) if they

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reasonably expect a deposition, hearing, or other proceeding to include Protected Material so that the

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other Parties can ensure that only authorized individuals who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A) are present at the deposition, hearing, or proceeding. The use of

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a document as an exhibit at a deposition shall not in any way affect its designation as

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

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CONFIDENTIAL – OUTSIDE COUNSEL ONLY.”

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

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

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(including line numbers as appropriate) that have been designated as Protected Material and the level

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of protection being asserted by the Designating Party. The Designating Party shall inform the court

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reporter of these requirements. Any transcript that is prepared before the expiration of a 21-day period

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for designation shall be treated during that period as if it had been designated “HIGHLY

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CONFIDENTIAL – OUTSIDE COUNSEL ONLY” in its entirety unless otherwise agreed. After the

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expiration of that period, the transcript shall be treated only as actually designated.
(c)

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for information produced in some form other than documents and for any other

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

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

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

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COUNSEL ONLY.” If only a portion or portions of the information or item warrant protection, the

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Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level

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of protection being asserted.

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5.3

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

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

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to secure protection under this Order for such material. Upon timely correction of a designation, the

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Receiving Party must make reasonable efforts to assure that the material is treated in accordance with

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the provisions of this Order.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

7.
4:18-CV-03812-HSG

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6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party may challenge a designation of confidentiality at

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any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary

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to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption

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or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by

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electing not to mount a challenge promptly after the original designation is disclosed.

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6.2

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

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

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challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite

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that the challenge to confidentiality is being made in accordance with this specific paragraph of the

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Protective Order. The Parties shall attempt to resolve each challenge in good faith and must begin the

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process by conferring directly (in voice to voice dialogue; other forms of communication are not

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sufficient) within five business days of the date of service of notice. In conferring, the Challenging

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Party must explain the basis for its belief that the confidentiality designation was not proper and must

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give the Designating Party an opportunity to review the designated material, to reconsider the

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circumstances, and, if no change in designation is offered, to explain the basis for the chosen

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designation. A Challenging Party may proceed to the next stage of the challenge process only if it has

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engaged in this meet and confer process first or establishes that the Designating Party is unwilling to

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participate in the meet and confer process in a timely manner.

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6.3

Judicial Intervention.

If the Parties cannot resolve a challenge without Court

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intervention, the Challenging Party shall file and serve a motion to re-designate or de-designate under

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the

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initial notice of challenge or within 14 days of the Parties agreeing that the meet and confer process

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will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a

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

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imposed in the preceding paragraph.

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

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

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

8.
4:18-CV-03812-HSG

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expenses and burdens on other Parties) may expose the Challenging Party to sanctions. All Parties
shall continue to afford the material in question the level of protection to which it is entitled under the
Designating Party’s designation until the Court rules on the challenge.
7.

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7.1

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defending, or attempting to settle this litigation, and not for any business purpose, in connection with
any other legal proceeding, or directly or indirectly for any other purpose whatsoever. Such Protected
Material may be disclosed only to the categories of persons and under the conditions described in this
Order. When the litigation has been terminated, a Receiving Party must comply with the provisions
of section 15 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in a
secure manner that ensures that access is limited to the persons authorized under this Order. Protected
Material shall not be copied or otherwise reproduced by a Receiving Party, except for transmission to
qualified recipients, without the written permission of the Producing Party or by further order of the
Court.
7.2

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information or item designated “CONFIDENTIAL” only to:
(a)

information for this litigation;
(b)

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House Counsel of the Receiving Party to whom disclosure is reasonably

necessary for this litigation;

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

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

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Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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

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

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ACCESS TO AND USE OF PROTECTED MATERIAL

(c)

the officers, directors, and employees of the Receiving Party to whom disclosure is

reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A);

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

9.
4:18-CV-03812-HSG

(d)

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Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to

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Be Bound” (Exhibit A);

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(e)

the Court and its personnel;

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(f)

stenographic reporters, videographers and/or their staff, and Professional

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Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(g)

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during their depositions, witnesses in the action to whom disclosure is

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reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A), unless the Designating Party objects to such disclosure or except as otherwise ordered by

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the Court. Before making such a disclosure, Receiving Party must provide notice sufficient to allow

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the Designating Party to object. Pages of transcribed deposition testimony or exhibits to depositions

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that reveal Protected Material may not be disclosed to anyone except as permitted under this Stipulated

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Protective Order.
(h)

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or other person who otherwise possessed or personally knows the information.
(i)

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the author or recipient of a document containing the information or a custodian

jury consulting personnel, including but not limited to mock jurors, who have

signed the “Acknowledgement and Agreement to Be Bound” (Exhibit A).
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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Information or Items. Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a)

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

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

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information for this litigation;
(b)

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House Counsel of the Receiving Party to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A);

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

10.
4:18-CV-03812-HSG

(c)

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Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

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

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A), and (3) as to whom the procedures set forth in paragraph 7.5(a), below, have been followed;

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(d)

the Court and its personnel;

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(e)

stenographic reporters, videographers and their respective staff, professional

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jury or trial consultants including but not limited to mock jurors, and Professional Vendors to whom

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disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and

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Agreement to Be Bound” (Exhibit A); and
(f)

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the author or recipient of a document containing the information or a custodian

or other person who otherwise possessed or personally knows the information.
7.4

Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY”

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Information or Items. Unless otherwise ordered by the Court or permitted in writing by the

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Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY

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CONFIDENTIAL – OUTSIDE COUNSEL ONLY” only to:
(a)

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

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

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

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Bound” that is attached hereto as Exhibit A;
(b)

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Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

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

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A), and (3) as to whom the procedures set forth in paragraph 7.5(a), below and specifically identified

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as eligible to access “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” Information or

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Items, have been followed;

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(c)

the Court and its personnel;

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(d)

stenographic reporters, videographers and their respective staff who have

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signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) and are transcribing or

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videotaping a deposition wherein “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY”

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Information or Items are being discussed.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

11.
4:18-CV-03812-HSG

(e)

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while testifying at deposition or trial in this action only: (i) any current or former

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officer, director or employee of the Producing Party or original source of the information; (ii) any

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person designated by the Producing Party to provide testimony pursuant to Rule 30(b)(6) of the Federal

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Rules of Civil Procedure; and/or (iii) any person who authored or previously received (other than

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through a violation of this Order) the “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY”

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Information or Items, as evident from its face or reasonably certain in view of other testimony or

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evidence. Persons authorized to view “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY”

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Information or Items pursuant to this sub-paragraph shall not retain or be given copies of the

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“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” Information or Items except while so

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testifying.

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7.5

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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

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OUTSIDE COUNSEL ONLY” Information or Items to Experts.
(a)

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Unless otherwise ordered by the court or agreed to in writing by the Designating

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

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

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CONFIDENTIAL – OUTSIDE COUNSEL ONLY” pursuant to paragraphs 7.3(c) or 7.4(b) first must

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make a written request to the Designating Party that (1) identifies the general categories of “HIGHLY

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

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

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(2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3)

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attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)

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identifies each person or entity from whom the Expert has received compensation or funding for work

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in his or her areas of expertise or to whom the expert has provided professional services, including in

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connection with a litigation, at any time during the preceding five years, and (6) identifies (by name

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and number of the case, filing date, and location of court) any litigation in connection with which the

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Expert has offered expert testimony, including through a declaration, report, or testimony at a

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deposition or trial, during the preceding five years. The requirements set forth in this Paragraph 7.5(a)

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

12.
4:18-CV-03812-HSG

1

do not apply if the identified Expert is retained solely for purposes of opining on a Party’s or the

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Parties’ respective potential for economic injury, harm, or gain in connection with the instant

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allegations and claims. For the avoidance of doubt, if a Party objects to the disclosure of “HIGHLY

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

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COUNSEL ONLY” information to an expert retained to opine about the potential for economic injury,

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harm, or gain in connection with the instant allegations and claims, the Parties shall abide by the meet

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& confer and motion procedures set forth in 7.5(c) & (d).
(b)

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

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

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unless, within three business days of delivering the request, the Party receives a written objection from

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the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
(c)

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

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

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

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make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in

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compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any

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such motion must describe the circumstances with specificity, set forth in detail the reasons why the

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

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

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

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

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forth the reasons advanced by the Designating Party for its refusal to approve the disclosure.
(d)

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

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the burden of proving that the risk of harm that the disclosure would entail (under the safeguards

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proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
(e)

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A party who has not previously objected to disclosure of Protected Material to

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an Expert or whose objection has been resolved with respect to previously produced Protected Material

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shall not be precluded from raising an objection to an Expert at a later time with respect to Protected

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

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4:18-CV-03812-HSG

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Material that is produced after the time for objecting to such Expert has expired or if new information

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about that Expert is disclosed or discovered. Any such objection shall be handled in accordance with

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the provisions set forth above.

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8.

SOURCE CODE
To the extent production of source code becomes necessary in this case, the Parties will

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negotiate a separate Protective Order applicable to Source Code.

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9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER

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LITIGATION

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If a Party is served with a subpoena issued by a court, arbitral, administrative, or legislative

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body, or with a court order issued in other litigation that compels disclosure of any information or

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items designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY,”

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that Party must:
(a)

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promptly notify in writing the Designating Party. Such notification shall

include a copy of the subpoena or court order;
(b)

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promptly notify in writing the person who caused the subpoena or order to issue

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in the other litigation that some or all of the material covered by the subpoena or order is subject to

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this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c)

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cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.

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

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

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

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OUTSIDE COUNSEL ONLY” before a determination by the court from which the subpoena or order

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issued, unless the Party has obtained the Designating Party’s permission. The Designating Party shall

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bear the burden and expense of seeking protection in that court of its confidential material – and

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nothing in these provisions should be construed as authorizing or encouraging a Receiving Party in

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this action to disobey a lawful directive from another court.

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

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4:18-CV-03812-HSG

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10.

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

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(a)

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

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in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY.”

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

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

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

9

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

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

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the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(i)

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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;
(ii)

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

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

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information requested; and

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(iii)

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make the information requested available for inspection by the Non-

Party.
(c)

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If the Non-Party fails to object or seek a protective order from this Court within

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

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

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objects or seeks a protective order, the Receiving Party shall not produce any information in its

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possession or control that is subject to the confidentiality agreement with the Non-Party before a

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determination by the Court. Absent a Court order to the contrary, the Non-Party shall bear the burden

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

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11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

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If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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Material to any person or in any circumstance not authorized under this Stipulated Protective Order,

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

15.
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the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
inform the person or persons to whom unauthorized disclosures were made of all the terms of this
Order, and (d) request such person or persons execute the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A.
12.

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PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain produced material is

subject to a claim of privilege or other protection, the obligations of the Receiving Parties are those
set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to modify
whatever procedure may be established in an e-discovery order that provides for production without
prior privilege review. If information is produced in discovery that is subject to a claim of privilege
or of protection as trial-preparation material, the party making the claim may notify any party that
received the information of the claim and the basis for it. After being notified, a party must promptly
return or destroy the specified information and any copies it has and may not sequester, use or disclose
the information until the claim is resolved.

This includes a restriction against presenting the

information to the court for a determination of the claim. Pursuant to Federal Rule of Evidence 502(d)
and (e), the production of a privileged or work-product-protected document is not a waiver of privilege
or protection from discovery in this case or in any other federal or state proceeding. For example, the
mere production of privileged or work-product-protected documents in this case as part of a mass
production is not itself a waiver in this case or any other federal or state proceeding.
13.

MISCELLANEOUS
13.1

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

its modification by agreement with other Parties or by applying to the Court if such agreement cannot
be reached. Furthermore, without application to the Court, any party that is a beneficiary of the
protections of this Order may enter a written agreement releasing any other party hereto from one or
more requirements of this Order even if the conduct subject to the release would otherwise violate the
terms herein.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

16.
4:18-CV-03812-HSG

13.2

1

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

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no Party waives any right it otherwise would have to object to disclosing or producing any information

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or item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives

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any right to object on any ground to use in evidence of any of the material covered by this Protective

5

Order.

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13.3

No Agreement Concerning Discoverability. The identification or agreed upon

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treatment of certain types of Disclosure and Discovery Material does not reflect agreement by the

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Parties that the disclosure of such categories of Disclosure and Discovery Material is required or

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appropriate in this action. The Parties reserve the right to argue that any particular category of

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Disclosure and Discovery Material should not be produced.
13.4

Export Control. Disclosure of Protected Material shall be subject to all applicable

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laws and regulations relating to the export of technical data contained in such Protected Material,

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including the release of such technical data to foreign persons or nationals in the United States or

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elsewhere. Each party receiving Protected Material shall comply with all applicable export control

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statutes and regulations. See, e.g., 15 CFR 734.2(b).

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13.5

Filing Protected Material. Without written permission from the Designating Party or

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a Court order, a Party may not file in the public record in this action any Protected Material. A Party

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that seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected

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Material may only be filed under seal pursuant to a Court order authorizing the sealing of the specific

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

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

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otherwise entitled to protection under the law. If a Receiving Party's request to file Protected Material

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under seal pursuant to Civil Local Rule 79-5 is denied by the Court, then the Receiving Party may file

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the Protected Material in the public record pursuant to Civil Local Rule 79-5(f)(2) unless otherwise

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instructed by the Court. If a Designating Party fails to file the required declaration described in Local

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Rule 79-5, then the Receiving Party may file the Protected Material in the Public Record pursuant to

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Civil Local Rule 79-5(e)(2).

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

17.
4:18-CV-03812-HSG

13.6

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Use of Protected Material at Hearing or Trial. A Party shall provide a minimum of

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two business days’ notice to the Producing Party in the event that a Party intends to use any Protected

3

Information during trial. Subject to any challenges under Section 6, the Parties will not oppose any

4

reasonable request by the Producing Party that the courtroom be sealed, if allowed by the Court, during

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the presentation of any testimony, evidence, or argument relating to or involving the use of any

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Protected Material.

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13.7

No Limitation on Legal Representation. Nothing in this Order shall preclude or

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impede Outside Counsel of Record’s ability to communicate with or advise their client in connection

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with this litigation based on such counsel’s review and evaluation of Protected Material, provided

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however that such communications or advice shall not disclose or reveal the substance or content of

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any Protected Material other than as permitted under this Order.
13.8

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Violations. If any Party violates the limitations on the use of Protected Material as

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described above, the Party violating this Order shall be subject to sanctions, or any other remedies as

14

appropriate, as ordered by the Court. In the event motion practice is required to enforce the terms of

15

this Order, the prevailing party on such a motion shall be awarded costs, expenses, and fees, including

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attorney or other professional fees, incurred in connection with the discovery of the violation and the

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preparation, filing, and arguing of the motion or any other proceedings resulting from the violation.
13.9

18

Agreement Upon Execution. Each of the Parties agrees to be bound by the terms of

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this Stipulated Protective Order as of the date counsel for such party executes this Stipulated Protective

20

Order, even if prior to entry of this Order by the Court.

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14.

FINAL DISPOSITION

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

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

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used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,

25

summaries, and any other format reproducing or capturing any of the Protected Material. Whether the

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Protected Material is returned or destroyed, the Receiving Party must submit a written certification to

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the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60-day

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deadline that (1) identifies (by category, where appropriate) all the Protected Material that was

COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

18.
4:18-CV-03812-HSG

1

returned or destroyed, and (2) affirms that the Receiving Party has not retained any copies, abstracts,

2

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

3

Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings,

4

motions and trial briefs (including all supporting and opposing papers and exhibits thereto), written

5

discovery requests and responses (and exhibits thereto), deposition transcripts (and exhibits thereto),

6

trial transcripts, and exhibits offered or introduced into evidence at any hearing or trial, and their

7

attorney work product, which refers or is related to any Protected Material for archival purposes only,

8

except to the extent such materials contain “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL

9

ONLY” information or items, which may not be disclosed or retained for archival purposes except by

10

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

11

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

12

15.

INTERPRETATION, ENFORCEMENT, AND CONTINUING JURISDICTION

13

The United States District Court for the Northern District of California is responsible for the

14

interpretation and enforcement of this Order. After final disposition of this litigation, the provisions

15

of this Order shall continue to be binding except with respect to that Disclosure or Discovery Material

16

that become a matter of public record. This Court retains and shall have continuing jurisdiction over

17

the Parties and recipients of the Protected Material for enforcement of the provision of this Order

18

following final disposition of this litigation. All disputes concerning Protected Material produced

19

under the protection of this Order shall be resolved by the United States District Court for the Northern

20

District of California.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

19.
4:18-CV-03812-HSG

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Dated: April 10, 2019

2

COOLEY LLP
BRENDAN J. HUGHES (Admitted Pro Hac Vice)
BRIAN J. FOCARINO (CA Bar No. 305382)

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4

/s/ Brendan J. Hughes
Brendan J. Hughes (497332)
Attorney for Defendant and Counter-Plaintiff
Google LLC

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Dated: April 10, 2019

CHRISTENSON LAW FIRM, LLP
VONN R. CHRISTENSON (CA Bar No. 244873)

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/s/ Vonn R. Christenson
Vonn R. Christenson (244873)
Attorney for Plaintiff and Counter-Defendant
GearSource Holdings, LLC

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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3

DATED: April 17, 2019

4

_____________________________________
The Hon. Haywood S. Gilliam Jr.
United States District Judge

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

21.
4:18-CV-03812-HSG

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3
4

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

5

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

6

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

7

District of California on ____________________________[insert date] in the case of GearSource

8

Holdings, LLC v. Google LLC and Does 1-20, Case No. 4:18-cv-03812-HSG [insert, if applicable,

9

“as modified on [date] by [insert any amended or modified order]”. I agree to comply with and to

10

be bound by all the terms of this Stipulated Protective Order, and I understand and acknowledge that

11

failure to so comply could expose me to sanctions and punishment in the nature of contempt. I

12

solemnly promise that I will not disclose in any manner any information or item that is subject to this

13

Stipulated Protective Order to any person or entity except in strict compliance with the provisions of

14

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

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District of California for the purpose of enforcing the terms of this Stipulated Protective Order, even
if such enforcement proceedings occur after termination of this action.

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Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: __________________________
[printed name]

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Signature:

_
[signature]

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COOLEY LLP
ATTORNEYS AT LAW
SAN FRANCISCO

STIPULATED
PROTECTIVE ORDER

22.
4:18-CV-03812-HSG