Zomm, LLC v. Apple Inc.

Filing 69

Amended Stipulated Protective Order. 65 Proposed STIPULATED PROTECTIVE ORDER filed by Apple Inc. terminated. Signed by Judge Haywood S. Gilliam, Jr. on 2/21/2019. (ndrS, COURT STAFF) (Filed on 2/21/2019)

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MICHAEL J. ZINNA (pro hac vice)
[e-mail]
LEE BRENNER (State Bar No. 180235)
[e-mail]
DAVID FINK (State Bar No. 169212)
[e-mail]
DAVID G. LINDENBAUM (pro hac vice)
[e-mail]
WHITNEY M. SMITH (pro hac vice)
[e-mail]
KELLEY DRYE & WARREN LLP
101 Park Avenue
New York, New York 10178
Telephone
212-808-7800
Facsimile
973-503-5950
Attorneys for Plaintiff
ZOMM, LLC
DAVID R. EBERHART (S.B. #195474)
[e-mail]
LUANN L. SIMMONS (S.B. #203526)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28ᵗʰ Floor
San Francisco, California 94111-3823
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
APPLE INC.

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION

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ZOMM, LLC,

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Case No. 4:18-cv-04969-HSG
Plaintiff,

v.

STIPULATED PROTECTIVE ORDER
Judge: Haywood S. Gilliam, Jr.

APPLE INC.,
Defendant.

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[PROPOSED] STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

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Plaintiff Zomm, LLC (“Plaintiff”) and Defendant Apple Inc. (“Defendant”) anticipate that

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documents, testimony, or information containing or reflecting confidential, proprietary, trade

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secret, and/or commercially sensitive information are likely to be disclosed or produced during

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the course of discovery, initial disclosures, and supplemental disclosures in this case and request

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that the Court enter this Order setting forth the conditions for treating, obtaining, and using such

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information.

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Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good cause

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for the following Agreed Protective Order Regarding the Disclosure and Use of Discovery

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Materials (“Order” or “Protective Order”).

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1.

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PURPOSES AND LIMITATIONS
(a)

Protected Material designated under the terms of this Protective Order shall be

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used by a Receiving Party solely for this case, and shall not be used directly or indirectly for any

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other purpose whatsoever.

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(b)

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

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disclosures during discovery, or in the course of making initial or supplemental disclosures under

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Rule 26(a). Designations under this Order shall be made with care and shall not be made absent a

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good faith belief that the designated material satisfies the criteria set forth below. If it comes to a

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Producing Party’s attention that designated material does not qualify for protection at all, or does

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not qualify for the level of protection initially asserted, the Producing Party must promptly notify

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all other Parties that it is withdrawing or changing the designation.

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(c)

The Parties further acknowledge that this Order does not entitle them to file

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

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

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file material under seal.

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2.

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DEFINITIONS
(a)

“Discovery Material” means all items or information, including from any non-

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party, regardless of the medium or manner generated, stored, or maintained (including, among

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other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated
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in connection with discovery or Rule 26(a) disclosures in this case.

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(b)

“Outside Counsel” means (i) outside counsel who appear on the pleadings as

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counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is reasonably

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necessary to disclose the information for this litigation.

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(c)

“Patent-in-suit” means U.S. Patent No. 8,351,895, and any other patent asserted in

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this action, as well as any related patents, patent applications, provisional patent applications,

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continuations, and/or divisionals.

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(d)

employees, consultants, retained experts, and outside counsel and their support staffs.

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“Party” means any party to this case, including all of its officers, directors,

(e)

“Producing Party” means any Party or non-party that discloses or produces any

Discovery Material in this case.

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(f)

“Protected Material” means any Discovery Material that is designated as

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“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL

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- OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” as provided for in this Order.

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Protected Material shall not include: (i) advertising materials that have been actually published or

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publicly disseminated; and (ii) materials that show on their face they have been disseminated to

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the public.

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(g)

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Producing Party.

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(h)

“Receiving Party” means any Party who receives Discovery Material from a

“Source Code” means computer code, scripts, assembly, binaries, object code,

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source code listings and descriptions of source code, object code listings and descriptions of

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object code, Hardware Description Language (HDL) or Register Transfer Level (RTL) files that

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describe the hardware design of any ASIC or other chip, and Computer Aided Design (CAD) files

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that describe the hardware design of any component.

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3.

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COMPUTATION OF TIME
The computation of any period of time prescribed or allowed by this Order shall be

governed by the provisions for computing time set forth in Federal Rules of Civil Procedure 6.

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4.

SCOPE
(a)

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The protections conferred by this Order cover not only Discovery Material

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governed by this Order as addressed herein, but also any information copied or extracted

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therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,

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conversations, or presentations by Parties or their counsel in court or in other settings that might

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reveal Protected Material.
(b)

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Nothing in this Protective Order shall prevent or restrict a Producing Party’s own

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disclosure or use of its own Protected Material for any purpose, and nothing in this Order shall

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preclude any Producing Party from showing its Protected Material to an individual who prepared

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the Protected Material.
(c)

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Nothing in this Order shall be construed to prejudice any Party’s right to use any

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Protected Material in court or in any court filing with the consent of the Producing Party or by

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order of the Court.

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(d)

This Order is without prejudice to the right of any Party to seek further or

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additional protection of any Discovery Material, or the right to seek to modify this Order in any

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way, including, without limitation, an order that certain matter not be produced at all.

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5.

DURATION
Even after the termination of this case, the confidentiality obligations imposed by this

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Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order

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otherwise directs.

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6.

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ACCESS TO AND USE OF PROTECTED MATERIAL
(a)

Basic Principles. All Protected Material shall be used solely for this case or any

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related appellate proceeding, and not for any other purpose whatsoever, including without

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limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue

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proceedings, or any business or competitive purpose or function. Protected Material shall not be

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distributed, disclosed or made available to anyone except as expressly provided in this Order.

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(b)

Patent Prosecution Bar. Absent the written consent of the Producing Party, any

person who receives one or more items designated “CONFIDENTIAL – ATTORNEYS’ EYES
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ONLY” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE” shall not be

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involved in and shall be screened from any of the following activities: (i) advising on, consulting

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

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specifications, claims, and/or responses to office actions, or otherwise affecting the scope of

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claims in patents or patent applications relating to the functionality, operation, and design of

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systems and methods for making emergency calls via a mobile phone or wearable electronic

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device, including emergency calls based on location, and sending emergency messages (generally

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or as described in any patent in suit) after an emergency call is placed, before any foreign or

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domestic agency, including the United States Patent and Trademark Office; and (ii) the

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acquisition of patents (including patent applications), or the rights to any such patents or patent

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applications with the right to sublicense, that claim systems or methods for making emergency

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calls via a mobile phone or wearable electronic device, including emergency calls based on

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location, and sending emergency messages (generally or as described in any patent in suit) after

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an emergency call is placed. These prohibitions are not intended to and shall not preclude

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counsel from participating in proceedings on behalf of a Party challenging the validity of any

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patent, including a reexamination, inter partes review, covered business method review, post-

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grant review, or reissue proceeding, but are intended, inter alia, to preclude counsel from

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affecting the scope of claims in reexamination, inter partes review, covered business method

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review, or reissue proceedings on behalf of a patentee. These prohibitions shall begin when

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access to “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY – SOURCE CODE” materials are first received by the affected

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individual, and shall end two (2) years after the final resolution of this action, including all

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appeals.

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(c)

Secure Storage, No Export. Protected Material must be stored and maintained by a

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Receiving Party at a location in the United States and in a secure manner that ensures that access

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is limited to the persons authorized under this Order. To ensure compliance with applicable

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United States Export Administration Regulations, Protected Material may not be exported outside

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the United States or released to any foreign national (even if within the United States).
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(d)

Legal Advice Based on Protected Material. Nothing in this Protective Order shall

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be construed to prevent counsel from advising their clients with respect to this case based in

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whole or in part upon Protected Materials, provided counsel does not disclose the Protected

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Material itself except as provided in this Order.

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(e)

Limitations. Nothing in this Order shall restrict in any way a Producing Party’s

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use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any way the

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use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become publicly

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known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known to the

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Receiving Party independent of the Producing Party; (iii) previously produced, disclosed and/or

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provided by the Producing Party to the Receiving Party or a non-party without an obligation of

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confidentiality and not by inadvertence or mistake; (iv) with the consent of the Producing Party;

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or (v) pursuant to order of the Court.

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7.

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DESIGNATING PROTECTED MATERIAL
(a)

Available Designations. Any Producing Party may designate Discovery Material

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with any of the following designations, provided that it meets the requirements for such

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designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’

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EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE

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CODE.”

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(b)

Each Party or Non-Party that designates information or items for protection under

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this Order must take care to limit any such designation to specific material that qualifies under the

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appropriate standards. To the extent it is practical to do so, the Designating Party must designate

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for protection only those parts of material, documents, items, or oral or written communications

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that qualify – so that other portions of the material, documents, items, or communications for

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

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

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

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

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expenses and burdens on 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

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

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

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withdrawing the mistaken designation.

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(c)

Written Discovery and Documents and Tangible Things. Written discovery,

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documents (which include “electronically stored information,” as that phrase is used in Federal

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Rule of Procedure 34), and tangible things may be designated with one of the designations listed

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in Paragraph 7(a) by placing the appropriate designation on every page of the written material

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prior to production. For digital files being produced, the Producing Party may mark each

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viewable page or image with the appropriate designation, and mark the medium, container, and/or

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communication in which the digital files were contained. In the event that original documents are

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produced for inspection, the original documents shall be presumed “CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” during the inspection and re-designated, as appropriate during the

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copying process.

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(d)

Native Files. Where electronic files and documents are produced in native

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electronic format, such electronic files and documents shall be designated for protection under

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this Order by appending to the file names or designators information indicating whether the file

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contains “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or

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“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” material, or

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shall use any other reasonable method for so designating Protected Materials produced in

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electronic format. When electronic files or documents are printed for use at deposition, in a court

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proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to

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paragraph 12, the party printing the electronic files or documents shall affix a legend to the

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printed document corresponding to the designation of the Designating Party and including the

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production number and designation associated with the native file. No one shall seek to use in

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this litigation a .tiff, .pdf or other image format version of a document produced in native file

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format without first (1) providing a copy of the image format version to the Producing Party so

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that the Producing Party can review the image to ensure that no information has been altered, and
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(2) obtaining the consent of the Producing Party, which consent shall not be unreasonably

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withheld.

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(e)

Depositions and Testimony. Parties or testifying persons or entities may designate

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depositions and other testimony with the appropriate designation by indicating on the record at

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the time the testimony is given or by sending written notice of how portions of the transcript of

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the testimony is designated within thirty (30) days of receipt of the transcript of the testimony. If

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no indication on the record is made, all information disclosed during a deposition shall be deemed

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“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the time within which it may be

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appropriately designated as provided for herein has passed. Any Party that wishes to disclose the

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transcript, or information contained therein before the 30-day period expires, may provide written

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notice of its intent to treat the transcript as non-confidential, after which time, any Party that

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wants to maintain any portion of the transcript as confidential must designate the confidential

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portions within fourteen (14) days, or else the transcript may be treated as non-confidential. Any

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Protected Material that is used in the taking of a deposition shall remain subject to the provisions

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of this Protective Order, along with the transcript pages of the deposition testimony dealing with

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such Protected Material. In such cases the court reporter shall be informed of this Protective

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Order and shall be required to operate in a manner consistent with this Protective Order. In the

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event the deposition is videotaped, the original and all copies of the videotape shall be marked by

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the video technician to indicate that the contents of the videotape are subject to this Protective

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Order, substantially along the lines of “This videotape contains confidential testimony used in this

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case and is not to be viewed or the contents thereof to be displayed or revealed except pursuant to

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the terms of the operative Protective Order in this matter or pursuant to written stipulation of the

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parties.” Counsel for any Producing Party shall have the right to exclude from oral depositions,

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other than the deponent, deponent’s counsel, the reporter and videographer (if any), any person

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who is not authorized by this Protective Order to receive or access Protected Material based on

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the designation of such Protected Material. Such right of exclusion shall be applicable only

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during periods of examination or testimony regarding such Protected Material.

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8.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
(a)

A Producing Party may designate Discovery Material as “CONFIDENTIAL” if it

contains or reflects confidential, proprietary, and/or commercially sensitive information.
(b)

Unless otherwise ordered by the Court, Discovery Material designated as

“CONFIDENTIAL” may be disclosed only to the following:
(i)

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The Receiving Party’s Outside Counsel, such counsel’s immediate

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paralegals and staff, and any copying or clerical litigation support services working at the

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direction of such counsel, paralegals, and staff;
(ii)

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Not more than three (3) representatives of the Receiving Party who are

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officers or employees of the Receiving Party, who may be, but need not be, in-house counsel for

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the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is

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reasonably necessary for this case, provided that: (a) each such person has agreed to be bound by

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the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved

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objections to such disclosure exist after proper notice has been given to all Parties as set forth in

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Paragraph 12 below;
(iii)

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Any outside expert or consultant retained by the Receiving Party to assist

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in this action, provided that disclosure is only to the extent necessary to perform such work; and

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provided that: (a) such expert or consultant has agreed to be bound by the provisions of the

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Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current

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officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time

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of retention to become an officer, director or employee of a Party or of a competitor of a Party;

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(c) such expert or consultant accesses the materials in the United States only, and does not

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transport them to or access them from any foreign jurisdiction; and (d) no unresolved objections

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to such disclosure exist after proper notice has been given to all Parties as set forth in Paragraph

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12 below;

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(iv)

Court reporters, stenographers and videographers retained to record

testimony taken in this action;
(v)

The Court, jury, and court personnel;
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(vi)

Graphics, translation, design, and/or trial consulting personnel, having first

agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A;

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(vii)

Mock jurors who have signed an undertaking or agreement agreeing not to

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publicly disclose Protected Material and to keep any information concerning Protected Material

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confidential;

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(viii) Any mediator or arbitrator who is assigned to hear this matter, and his or

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her staff, subject to their agreement to maintain confidentiality to the same degree as required by

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this Protective Order; and

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(ix)
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Any other person with the prior written consent of the Producing Party.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL – ATTORNEYS’
EYES ONLY”
(a)

A Producing Party may designate Discovery Material as “CONFIDENTIAL –

ATTORNEYS’ EYES ONLY” if it contains or reflects information that is extremely confidential
and/or sensitive in nature and the Producing Party reasonably believes that the disclosure of such
Discovery Material is likely to cause economic harm or significant competitive disadvantage to
the Producing Party. The Parties agree that the following information, if non-public, shall be
presumed to merit the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation: trade
secrets, pricing information, financial data, sales information, sales or marketing forecasts or
plans, business plans, sales or marketing strategy, product development information, engineering
documents, testing documents, employee information, and other non-public information of
similar competitive and business sensitivity.
(b)

Unless otherwise ordered by the Court, Discovery Material designated as

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:
(i)

The Receiving Party’s Outside Counsel, provided that such Outside

Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and
such Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation
support services working at the direction of such counsel, paralegals, and staff;
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(ii)

Any outside expert or consultant retained by the Receiving Party to assist

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in this action, provided that disclosure is only to the extent necessary to perform such work; and

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provided that: (a) such expert or consultant has agreed to be bound by the provisions of the

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Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current

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officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time

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of retention to become an officer, director, or employee of a Party or of a competitor of a Party;

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(c) such expert or consultant is not involved in competitive decision-making, as defined by U.S.

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Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a

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competitor of a Party; (d) such expert or consultant accesses the materials in the United States

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only, and does not transport them to or access them from any foreign jurisdiction; and (e) no

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unresolved objections to such disclosure exist after proper notice has been given to all Parties as

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set forth in Paragraph 12 below;

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(iii)

Court reporters, stenographers and videographers retained to record

testimony taken in this action;

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(iv)

The Court, jury, and court personnel;

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(v)

Graphics, translation, design, and/or trial consulting personnel, having first

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agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit A;

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(vi)

Any mediator or arbitrator who is assigned to hear this matter, and his or

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her staff, subject to their agreement to maintain confidentiality to the same degree as required by

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this Protective Order; and

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(vii)
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Any other person with the prior written consent of the Producing Party.

DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL – OUTSIDE
ATTORNEYS’ EYES ONLY – SOURCE CODE”
(a)

To the extent production of Source Code becomes necessary to the prosecution or

defense of the case, a Producing Party may designate Source Code as “CONFIDENTIAL –
OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” if it comprises or includes
confidential, proprietary, and/or trade secret Source Code.
(b)

Nothing in this Order shall be construed as a representation or admission that
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Source Code is properly discoverable in this action, or to obligate any Party to produce any

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Source Code.

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(c)

Unless otherwise ordered by the Court, Discovery Material designated as

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“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” shall be

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subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to

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Paragraph 11 below, solely to:

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(i)

The Receiving Party’s Outside Counsel, provided that such Outside

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Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,

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730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and

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such Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation

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support services working at the direction of such counsel, paralegals, and staff;

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(ii)

Any outside expert or consultant retained by the Receiving Party to assist

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in this action, provided that disclosure is only to the extent necessary to perform such work; and

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provided that: (a) such expert or consultant has agreed to be bound by the provisions of the

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Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current

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officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time

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of retention to become an officer, director or employee of a Party or of a competitor of a Party;

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(c) such expert or consultant is not involved in competitive decision-making, as defined by U.S.

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Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a

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competitor of a Party; and (d) no unresolved objections to such disclosure exist after proper notice

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has been given to all Parties as set forth in Paragraph 12 below;

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(iii)

Court reporters, stenographers and videographers retained to record

testimony taken in this action;

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(iv)

The Court, jury, and court personnel;

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(v)

Any mediator or arbitrator who is assigned to hear this matter, and his or

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her staff, subject to their agreement to maintain confidentiality to the same degree as required by

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this Protective Order; and

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(vi)

Any other person with the prior written consent of the Producing Party.
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11.

DISCLOSURE AND REVIEW OF SOURCE CODE
(a)

Any Source Code that is produced by Plaintiff shall be made available for

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inspection in electronic format at the New York office of its outside counsel, Kelley Drye and

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Warren LLP, or any other location mutually agreed by the Parties. Any Source Code that is

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produced by Apple Inc. will be made available for inspection at the San Francisco office of its

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outside counsel, O’Melveny & Myers LLP, or any other location mutually agreed by the Parties.

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Source Code will be made available for inspection between the hours of 8 a.m. and 6 p.m. on

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business days (i.e., weekdays that are not Federal holidays), although the Parties will be

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reasonable in accommodating reasonable requests to conduct inspections at other times.

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(b)

Prior to the first inspection of any requested Source Code, the Receiving Party

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shall provide thirty (30) days’ notice of the Source Code that it wishes to inspect. The Receiving

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Party shall provide fourteen (14) days’ notice prior to any additional inspections.

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(c)

Source Code that is designated “CONFIDENTIAL – OUTSIDE ATTORNEYS’

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EYES ONLY – SOURCE CODE” shall be produced for inspection and review subject to the

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following provisions, unless otherwise agreed by the Producing Party:

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(i)

All Source Code shall be made available by the Producing Party to the

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Receiving Party’s outside counsel and/or experts in a secure room on a secured computer without

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Internet access or network access to other computers and on which all access ports have been

19

disabled (except for one printer port), as necessary and appropriate to prevent and protect against

20

any unauthorized copying, transmission, removal or other transfer of any Source Code outside or

21

away from the computer on which the Source Code is provided for inspection (the “Source Code

22

Computer” in the “Source Code Review Room”). The Producing Party shall install tools that are

23

sufficient for viewing and searching the code produced, on the platform produced, if such tools

24

exist and are presently used in the ordinary course of the Producing Party’s business. The

25

Receiving Party’s outside counsel and/or experts may request that commercially available

26

software tools for viewing and searching Source Code be installed on the secured computer,

27

provided, however, that (a) the Receiving Party possesses an appropriate license to such software

28

tools; (b) the Producing Party approves such software tools; and (c) such other software tools are
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PROTECTIVE ORDER
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1

reasonably necessary for the Receiving Party to perform its review of the Source Code consistent

2

with all of the protections herein. The Receiving Party must provide the Producing Party with the

3

CD or DVD containing such licensed software tool(s) at least twenty-one (21) days in advance of

4

the date upon which the Receiving Party wishes to have the additional software tools available for

5

use on the Source Code Computer.

6

(ii)

No recordable media or recordable devices, including without limitation

7

sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs, DVDs, or

8

drives of any kind, shall be permitted into the Source Code Review Room.

9

(iii)

The Receiving Party’s outside counsel and/or experts shall be entitled to

10

take notes relating to the Source Code but may not copy the Source Code into the notes and may

11

not take such notes electronically on the Source Code Computer itself or any other computer.

12

(iv)

The Producing Party may visually monitor the activities of the Receiving

13

Party’s representatives during any Source Code review, but only to ensure that no unauthorized

14

electronic records of the Source Code and no information concerning the Source Code are being

15

created or transmitted in any way.

16

(v)

No copies of all or any portion of the Source Code may leave the room in

17

which the Source Code is inspected except as otherwise provided herein. Further, no other

18

written or electronic record of the Source Code is permitted except as otherwise provided herein.

19

The Producing Party shall make available a laser printer with commercially reasonable printing

20

speeds for on-site printing during inspection of the Source Code. The Receiving Party may print

21

limited portions of the Source Code only when necessary to prepare court filings or pleadings or

22

other papers (including a testifying expert’s expert report). Any printed portion that consists of

23

more than five (5) pages of a continuous block of Source Code shall be presumed to be excessive,

24

and the burden shall be on the Receiving Party to demonstrate the need for such a printed copy.

25

The Receiving Party may print out no more than 20 pages total. The Receiving Party shall not

26

print Source Code in order to review blocks of Source Code elsewhere in the first instance, i.e., as

27

an alternative to reviewing that Source Code electronically on the Source Code Computer, as the

28

Parties acknowledge and agree that the purpose of the protections herein would be frustrated by
- 14 -

STIPULATED
PROTECTIVE ORDER
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1

printing portions of code for review and analysis elsewhere, and that printing is permitted only

2

when necessary to prepare court filings or pleadings or other papers (including a testifying

3

expert’s expert report). Upon printing any such portions of Source Code, the printed pages shall

4

be collected by the Producing Party. The Producing Party shall Bates number, copy, and label

5

“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” any pages

6

printed by the Receiving Party. Within fourteen (14) days, the Producing Party shall either (i)

7

provide one copy set of such pages to the Receiving Party or (ii) inform the Requesting Party that

8

it objects that the printed portions are excessive and/or not done for a permitted purpose. If, after

9

meeting and conferring, the Producing Party and the Receiving Party cannot resolve the

10

objection, the Receiving Party shall be entitled to seek a Court resolution of whether the printed

11

Source Code in question is narrowly tailored and was printed for a permitted purpose. The

12

burden shall be on the Receiving Party to demonstrate that such printed portions are no more than

13

is reasonably necessary for a permitted purpose and not merely printed for the purposes of review

14

and analysis elsewhere. The printed pages shall constitute part of the Source Code produced by

15

the Producing Party in this action.

16

(vi)

All persons who will review a Producing Party’s Source Code on behalf of

17

a Receiving Party, including members of a Receiving Party’s outside law firm, shall be identified

18

in writing to the Producing Party at least five (5) days in advance of the first time that such person

19

reviews such Source Code. Such identification shall be in addition to any other disclosure

20

required under this Order. All persons viewing Source Code shall sign on each day they view

21

Source Code a log that will include the names of persons who enter the locked room to view the

22

Source Code and when they enter and depart. The Producing Party shall be entitled to a copy of

23

the log upon one (1) day’s advance notice to the Receiving Party.

24

(vii)

Unless otherwise agreed in advance by the Parties in writing, following

25

each day on which inspection is done under this Order, the Receiving Party’s outside counsel

26

and/or experts shall remove all notes, documents, and all other materials from the Source Code

27

Review Room. The Producing Party shall not be responsible for any items left in the room

28

following each inspection session, and the Receiving Party shall have no expectation of
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STIPULATED
PROTECTIVE ORDER
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1

confidentiality for any items left in the room following each inspection session without a prior

2

agreement to that effect. Proper identification of all authorized persons shall be provided prior to

3

any access to the secure room or the computer containing Source Code. Proper identification

4

requires showing, at a minimum, a photo identification card sanctioned by the government of any

5

State of the United States, by the government of the United States, or by the nation state of the

6

authorized person’s current citizenship. Access to the secure room or the Source Code Computer

7

may be denied, at the discretion of the supplier, to any individual who fails to provide proper

8

identification.

9

(viii) Other than as provided above, the Receiving Party will not copy, remove,

10

or otherwise transfer any Source Code from the Source Code Computer including, without

11

limitation, copying, removing, or transferring the Source Code onto any recordable media or

12

recordable device. The Receiving Party will not transmit any Source Code in any way from the

13

Producing Party’s facilities or the offices of its outside counsel of record.

14

(ix)

The Receiving Party’s outside counsel of record may make no more than

15

three (3) additional paper copies of any portions of the Source Code received from a Producing

16

Party pursuant to Paragraph 11(c)(v), not including copies attached to court filings or used at

17

depositions, and shall maintain a log of all paper copies of the Source Code. The log shall

18

include the names of the reviewers and/or recipients of paper copies and locations where the

19

paper copies are stored. Upon one (1) day’s advance notice to the Receiving Party by the

20

Producing Party, the Receiving Party shall provide a copy of this log to the Producing Party.

21

(x)

The Receiving Party’s outside counsel of record and any person receiving a

22

copy of any Source Code shall maintain and store any paper copies of the Source Code at their

23

offices in a manner that prevents duplication of or unauthorized access to the Source Code,

24

including, without limitation, storing the Source Code in a locked room or cabinet at all times

25

when it is not in use. No more than a total of ten (10) individuals identified by the Receiving

26

Party shall have access to the printed portions of Source Code (except insofar as such code

27

appears in any court filing or expert report).

28
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STIPULATED
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(xi)

For depositions, the Receiving Party shall not bring copies of any printed

2

Source Code. Rather, at least ten (10) days before the date of the deposition, the Receiving Party

3

shall notify the Producing Party about the specific portions of Source Code it wishes to use at the

4

deposition, and the Producing Party shall bring printed copies of those portions to the deposition

5

for use by the Receiving Party. Copies of Source Code that are marked as deposition exhibits

6

shall not be provided to the Court Reporter or attached to deposition transcripts; rather, the

7

deposition record will identify the exhibit by its production numbers. All paper copies of Source

8

Code brought to the deposition shall remain with the Producing Counsel’s outside counsel for

9

secure destruction in a timely manner following the deposition.

10

(xii)

Except as provided in this sub-paragraph, absent express written

11

permission from the Producing Party, the Receiving Party may not create electronic images, or

12

any other images, or make electronic copies, of the Source Code from any paper copy of Source

13

Code for use in any manner (including by way of example only, the Receiving Party may not scan

14

the Source Code to a PDF or photograph the code). Images or copies of Source Code shall not be

15

included in correspondence between the Parties (references to production numbers shall be used

16

instead), and shall be omitted from pleadings and other papers whenever possible. If a Party

17

reasonably believes that it needs to submit a portion of Source Code as part of a filing with the

18

Court, the Parties shall meet and confer as to how to make such a filing while protecting the

19

confidentiality of the Source Code and such Source Code will not be filed absent agreement from

20

the Producing Party that the confidentiality protections will be adequate. If a Producing Party

21

agrees to produce an electronic copy of all or any portion of its Source Code or provide written

22

permission to the Receiving Party that an electronic or any other copy needs to be made for a

23

Court filing, access to the Receiving Party’s submission, communication, and/or disclosure of

24

electronic files or other materials containing any portion of Source Code (paper or electronic)

25

shall at all times be limited solely to individuals who are expressly authorized to view Source

26

Code under the provisions of this Order. Where the Producing Party has provided the express

27

written permission required under this provision for a Receiving Party to create electronic copies

28

of Source Code, the Receiving Party shall maintain a log of all such electronic copies of any
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STIPULATED
PROTECTIVE ORDER
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1

portion of Source Code in its possession or in the possession of its retained consultants, including

2

the names of the reviewers and/or recipients of any such electronic copies, and the locations and

3

manner in which the electronic copies are stored. Additionally, any such electronic copies must

4

be labeled “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE” as provided

5

for in this Order.

6

12.

7

NOTICE OF DISCLOSURE
(a)

Prior to disclosing any Protected Material to any person described in Paragraph

8

8(b)(ii) (referenced in this section as “Person”), the Party seeking to disclose such information

9

shall provide the Producing Party with written notice that includes:

10

(i)

the name of the Person;

11

(ii)

the present employer and title of the Person;

12

(iii)

an identification of all of the Person’s past and current employment and

13
14

consulting relationships for the past five (5) years.
(b)

Prior to disclosing any Protected Material to any person described in Paragraphs

15

8(b)(iii), 9(b)(iii), or 10(c)(ii) (referenced in this section as “Person”), the Party seeking to

16

disclose such information shall provide the Producing Party with written notice that includes:

17

(i)

the name of the Person;

18

(ii)

an up-to-date curriculum vitae of the Person;

19

(iii)

the present employer and title of the Person;

20

(iv)

an identification of all of the Person’s past and current employment and

21

consulting relationships for the past five (5) years, including direct relationships and relationships

22

through entities owned or controlled by the Person, including but not limited to an identification

23

of any individual or entity with or for whom the person is employed or to whom the person

24

provides consulting services relating to the design, development, operation, or patenting of

25

systems and methods for making emergency calls, including emergency calls based on location,

26

and sending emergency messages, or relating to the acquisition of intellectual property assets

27

relating to systems and methods for making emergency calls, including emergency calls based on

28

location, and sending emergency messages;
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STIPULATED
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(v)

an identification of all pending patent applications on which the Person is

2

named as an inventor, in which the Person has any ownership interest, or as to which the Person

3

has had or anticipates in the future any involvement in advising on, consulting on, preparing,

4

prosecuting, drafting, editing, amending, or otherwise affecting the scope of the claims; and

5

(vi)

a list of the cases in which the Person has testified at deposition or trial

6

within the last five (5) years.

7

Further, the Party seeking to disclose Protected Material shall provide such other information

8

regarding the Person’s professional activities reasonably requested by the Producing Party for it

9

to evaluate whether good cause exists to object to the disclosure of Protected Material to the

10

outside expert or consultant. During the pendency of and for a period of one (1) year after the

11

final resolution of this action, including all appeals, the Party seeking to disclose Protected

12

Material shall immediately provide written notice of any change with respect to the Person’s

13

involvement in the design, development, operation or patenting of systems and methods for

14

making emergency calls, including emergency calls based on location, and sending emergency

15

messages, or the acquisition of intellectual property assets relating to systems and methods for

16

making emergency calls, including emergency calls based on location, and sending emergency

17

messages.

18

(c)

Within fourteen (14) days of receipt of the disclosure of the Person, the Producing

19

Party or Parties may object in writing to the Person for good cause. In the absence of an

20

objection at the end of the fourteen (14) day period, the Person shall be deemed approved under

21

this Protective Order. There shall be no disclosure of Protected Material to the Person prior to

22

expiration of this fourteen (14) day period. If the Producing Party objects to disclosure to the

23

Person within such fourteen (14) day period, the Parties shall meet and confer via telephone or in

24

person within seven (7) days following the objection and attempt in good faith to resolve the

25

dispute on an informal basis. If the dispute is not resolved, the Party objecting to the disclosure

26

will have seven (7) days from the date of the meet and confer to seek relief from the Court. If

27

relief is not sought from the Court within that time, the objection shall be deemed withdrawn. If

28
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STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

relief is sought, designated materials shall not be disclosed to the Person in question until the

2

Court resolves the objection.

3

(d)

For purposes of this section, “good cause” shall include an objectively reasonable

4

concern that the Person will, advertently or inadvertently, use or disclose Discovery Materials in a

5

way or ways that are inconsistent with the provisions contained in this Order.

6

(e)

Prior to receiving any Protected Material under this Order, the Person must

7

execute a copy of the “Agreement to Be Bound by Protective Order” (Exhibit A hereto) and serve

8

it on all Parties.

9

(f)

An initial failure to object to a Person under this Paragraph 12 shall not preclude

10

the nonobjecting Party from later objecting to continued access by that Person for good cause. If

11

an objection is made, the Parties shall meet and confer via telephone or in person within seven (7)

12

days following the objection and attempt in good faith to resolve the dispute informally. If the

13

dispute is not resolved, the Party objecting to the disclosure will have seven (7) days from the

14

date of the meet and confer to seek relief from the Court. The designated Person may continue to

15

have access to information that was provided to such Person prior to the date of the objection. If

16

a later objection is made, no further Protected Material shall be disclosed to the Person until the

17

Court resolves the matter or the Producing Party withdraws its objection. Notwithstanding the

18

foregoing, if the Producing Party fails to move for a protective order within seven (7) business

19

days after the meet and confer, further Protected Material may thereafter be provided to the

20

Person.

21

13.

22

CHALLENGING DESIGNATIONS OF PROTECTED MATERIAL
(a)

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

23

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

24

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

25

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

26

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

27

original designation is disclosed.

28

(b)

Meet and Confer. The Challenging Party shall initiate the dispute resolution
- 20 -

STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

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

2

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

3

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

4

specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in

5

good faith and must begin the process by conferring directly (in voice to voice dialogue; other

6

forms of communication are not sufficient) within 14 days of the date of service of notice. In

7

conferring, the Challenging Party must explain the basis for its belief that the confidentiality

8

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

9

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

10

to explain the basis for the chosen designation. A Challenging Party may proceed to the next

11

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

12

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

13

a timely manner.

14

(c)

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

15

intervention, the Designating Party shall file and serve a motion to retain confidentiality under

16

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

17

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

18

process will not resolve their dispute, whichever is earlier. Each such motion must be

19

accompanied by a competent declaration affirming that the movant has complied with the meet

20

and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to

21

make such a motion including the required declaration within 21 days (or 14 days, if applicable)

22

shall automatically waive the confidentiality designation for each challenged designation. In

23

addition, the Challenging Party may file a motion challenging a confidentiality designation at any

24

time if there is good cause for doing so, including a challenge to the designation of a deposition

25

transcript or any portions thereof. Any motion brought pursuant to this provision must be

26

accompanied by a competent declaration affirming that the movant has complied with the meet

27

and confer requirements imposed by the preceding paragraph.

28

(d)

The burden of persuasion in any such challenge proceeding shall be on the
- 21 -

STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

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

2

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

3

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

4

file a motion to retain confidentiality as described above, all parties shall continue to afford the

5

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

6

designation until the court rules on the challenge

7

14.

8
9

SUBPOENAS OR COURT ORDERS
(a)

If at any time Protected Material is subpoenaed by any court, arbitral,

administrative, or legislative body, the Party to whom the subpoena or other request is directed

10

shall immediately give prompt written notice thereof to every Party who has produced such

11

Discovery Material and to its counsel and shall provide each such Party with an opportunity to

12

move for a protective order regarding the production of Protected Materials implicated by the

13

subpoena.

14

15.

15

FILING PROTECTED MATERIAL
(a)

Absent written permission from the Producing Party or a court Order secured after

16

appropriate notice to all interested persons, a Receiving Party may not file or otherwise disclose

17

in the public record any Protected Material.

18

(b)

A Party that seeks to file under seal any Protected Material must comply with Civil

19

Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court order

20

authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule

21

79-5, a sealing order will issue only upon a request establishing that the Protected Material at

22

issue is privileged, protectable as a trade secret, or otherwise entitled to protection under the law.

23

If a Receiving Party’s request to file Protected Material under seal pursuant to Civil Local Rule

24

79-5(e) is denied by the court, then the Receiving Party may file the Protected Material in the

25

public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise instructed by the court.

26

16.

27
28

INADVERTENT DISCLOSURE OF PRIVILEGED MATERIAL
(a)

The inadvertent production by a Party of Discovery Material subject to the

attorney-client privilege, work-product protection, or any other applicable privilege or protection,
- 22 -

STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

despite the Producing Party’s reasonable efforts to prescreen such Discovery Material prior to

2

production, will not waive the applicable privilege and/or protection if a request for return of such

3

inadvertently produced Discovery Material is made promptly after the Producing Party learns of

4

its inadvertent production.

5

(b)

Upon a request from any Producing Party who has inadvertently produced

6

Discovery Material that it believes is privileged and/or protected, each Receiving Party shall

7

immediately return such Protected Material or Discovery Material and all copies to the Producing

8

Party, except for any pages containing privileged markings by the Receiving Party which shall

9

instead be destroyed and certified as such by the Receiving Party to the Producing Party.

10

(c)

Nothing herein shall prevent the Receiving Party from preparing a record for its

11

own use containing the date, author, addresses, and topic of the inadvertently produced Discovery

12

Material and such other information as is reasonably necessary to identify the Discovery Material

13

and describe its nature to the Court in any motion to compel production of the Discovery

14

Material.

15

17.

16

INADVERTENT FAILURE TO DESIGNATE PROPERLY
(a)

The inadvertent failure by a Producing Party to designate Discovery Material as

17

Protected Material with one of the designations provided for under this Order shall not waive any

18

such designation provided that the Producing Party notifies all Receiving Parties that such

19

Discovery Material is protected under one of the categories of this Order within a reasonable time

20

following the Producing Party learning of the inadvertent failure to designate. The Producing

21

Party shall reproduce the Protected Material with the correct confidentiality designation within

22

seven (7) days upon its notification to the Receiving Parties. Upon receiving the Protected

23

Material with the correct confidentiality designation, the Receiving Parties shall return or securely

24

destroy, at the Producing Party’s option, all Discovery Material that was not designated properly.

25

(b)

A Receiving Party shall not be in breach of this Order for any use of such

26

Discovery Material before the Receiving Party receives such notice that such Discovery Material

27

is protected under one of the categories of this Order, unless an objectively reasonable person

28

would have realized that the Discovery Material should have been appropriately designated with a
- 23 -

STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

confidentiality designation under this Order. Once a Receiving Party has received notification of

2

the correct confidentiality designation for the Protected Material with the correct confidentiality

3

designation, the Receiving Party shall treat such Discovery Material (subject to the exception in

4

Paragraph 17(c) below) at the appropriately designated level pursuant to the terms of this Order.

5

(c)

Notwithstanding the above, a subsequent designation of “CONFIDENTIAL,”

6

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

7

EYES ONLY – SOURCE CODE” shall apply on a going forward basis and shall not disqualify

8

anyone who reviewed “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

9

or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE” materials while the

10

materials were not marked “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

11

“CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE” from engaging in the

12

activities set forth in Paragraph 6(b).

13

18.

14

INADVERTENT DISCLOSURE NOT AUTHORIZED BY ORDER
(a)

In the event of a disclosure of any Discovery Material pursuant to this Order to any

15

person or persons not authorized to receive such disclosure under this Protective Order, the Party

16

responsible for having made such disclosure, and each Party with knowledge thereof, shall

17

immediately notify counsel for the Producing Party whose Discovery Material has been disclosed

18

and provide to such counsel all known relevant information concerning the nature and

19

circumstances of the disclosure. The responsible disclosing Party shall also promptly take all

20

reasonable measures to retrieve the improperly disclosed Discovery Material and to ensure that no

21

further or greater unauthorized disclosure and/or use thereof is made

22

(b)

Unauthorized or inadvertent disclosure does not change the status of Discovery

23

Material or waive the right to hold the disclosed document or information as Protected.

24

19.

25

FINAL DISPOSITION
(a)

Not later than ninety (90) days after the Final Disposition of this case, each Party

26

shall return all Discovery Material of a Producing Party to the respective outside counsel of the

27

Producing Party or destroy such Material, at the option of the Producing Party. For purposes of

28

this Order, “Final Disposition” occurs after an order, mandate, or dismissal finally terminating the
- 24 -

STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

above-captioned action with prejudice, including all appeals.

2

(b)

All Parties that have received any such Discovery Material shall certify in writing

3

that all such materials have been returned to the respective outside counsel of the Producing Party

4

or destroyed. Notwithstanding the provisions for return of Discovery Material, outside counsel

5

may retain one set of pleadings, correspondence and attorney and consultant work product (but

6

not document productions) for archival purposes, but must return or destroy any pleadings,

7

correspondence, and consultant work product that contain Source Code.

8

20.

9

DISCOVERY FROM EXPERTS OR CONSULTANTS
(a)

Absent good cause, drafts of reports of testifying experts, and reports and other

10

written materials, including drafts, of consulting experts, shall not be discoverable. Draft reports,

11

notes, and outlines developed and drafted by testifying and/or consulting experts and/or their staff

12

are also exempt from discovery.

13

(b)

Discovery of materials provided to testifying experts shall be limited to those

14

materials, facts, consulting expert opinions, and other matters actually relied upon by the

15

testifying expert in forming his or her final report, trial, or deposition testimony or any opinion in

16

this case. No discovery can be taken from any non-testifying expert except to the extent that such

17

non-testifying expert has provided information, opinions, or other materials to a testifying expert

18

relied upon by that testifying expert in forming his or her final report(s), trial, and/or deposition

19

testimony or any opinion in this case.

20

(c)

No conversations or communications between counsel and any testifying or

21

consulting expert will be subject to discovery unless the conversations or communications are

22

relied upon by such experts in formulating opinions that are presented in reports or trial or

23

deposition testimony in this case.

24

(d)

Materials, communications, and other information exempt from discovery under

25

the foregoing Paragraphs [[20(a)–(c)]] shall be treated as attorney-work product for the purposes

26

of this litigation and Order.

27
28

(e)

Nothing in in this Protective Order, including Paragraphs [[20(a)–(d)]], shall alter

or change in any way the requirements in Paragraph 11 regarding Source Code, and Paragraph 11
- 25 -

STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

shall control in the event of any conflict.

2

21.

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18

(a)

21
22
23
24
25
26
27
28

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

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

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

Non-Party’s confidential information in its possession, and the Party is subject to an agreement
with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(i)

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 NonParty;
(ii)

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

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

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

(c)

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

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

days of receiving the notice and accompanying information, the Receiving Party may produce the
Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
seeks a protective order, the Receiving Party shall not produce any information in its possession
or control that is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
burden and expense of seeking protection in this court of its Protected Material.
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MISCELLANEOUS
(a)

Right to Further Relief. Nothing in this Order abridges the right of any person to
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STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1

seek its modification by the Court in the future. By stipulating to this Order, the Parties do not

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waive the right to argue that certain material may require additional or different confidentiality

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protections than those set forth herein.

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(b)

Termination of Matter and Retention of Jurisdiction. The Parties agree that the

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terms of this Protective Order shall survive and remain in effect after the Final Determination of

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the above-captioned matter. The Court shall retain jurisdiction after Final Determination of this

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matter to hear and resolve any disputes arising out of this Protective Order.

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(c)

Successors. This Order shall be binding upon the Parties hereto, their attorneys,

and their successors, executors, personal representatives, administrators, heirs, legal

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representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and

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experts, and any persons or organizations over which they have direct control.

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(d)

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

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

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information or item. Similarly, no Party waives any right to object on any ground to use in

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evidence of any of the material covered by this Protective Order. This Order shall not constitute a

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waiver of the right of any Party to claim in this action or otherwise that any Discovery Material,

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or any portion thereof, is privileged or otherwise non-discoverable, or is not admissible in

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evidence in this action or any other proceeding.

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(e)

Burdens of Proof. Notwithstanding anything to the contrary above, nothing in this

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Protective Order shall be construed to change the burdens of proof or legal standards applicable in

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disputes regarding whether particular Discovery Material is confidential, which level of

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confidentiality is appropriate, whether disclosure should be restricted, and if so, what restrictions

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should apply.

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(f)

Modification by Court. This Order is subject to further court order based upon

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public policy or other considerations, and the Court may modify this Order sua sponte in the

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interests of justice. The United States District Court for the Northern District of California is

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responsible for the interpretation and enforcement of this Order. All disputes concerning

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Protected Material, however designated, produced under the protection of this Order shall be
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STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1
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resolved by the United States District Court for the Northern District of California.
(g)

Discovery Rules Remain Unchanged. Nothing herein shall alter or change in any

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way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules for the

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United States District Court for the Northern District of California, or the Court’s own orders.

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Identification of any individual pursuant to this Protective Order does not make that individual

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available for deposition or any other form of discovery outside of the restrictions and procedures

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of the Federal Rules of Civil Procedure, the Local Rules for the United States District Court for

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the Northern District of California, or the Court’s own orders.

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

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Dated: February 19, 2019

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O’MELVENY & MYERS LLP

KELLEY DRYE & WARREN LLP

/s/ Luann L. Simmons
David R. Eberhart (S.B. #195474)
[e-mail]
Luann L. Simmons (S.B. #203526)
[e-mail]
O’MELVENY & MYERS LLP
Two Embarcadero Center, 28th Floor
San Francisco, California 94111-3823
Telephone: [phone]
Facsimile: [phone]

/s/ Michael J. Zinna
Michael J. Zinna (admitted pro hac vice)
[e-mail]
Lee Brenner (State Bar No. 180235)
[e-mail]
David Fink (State Bar No. 169212)
[e-mail]
David G. Lindenbaum (pro hac vice)
[e-mail]
Whitney M. Smith (pro hac vice)
[e-mail]
KELLEY DRYE AND WARREN LLP
101 Park Avenue
New York, New York 10178
Telephone: [phone]

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Attorneys for Defendant
APPLE INC.

Attorneys for Plaintiff
ZOMM, LLC

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STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

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PURSUANT TO STIPULATION, IT IS SO ORDERED.
Dated: February 21, 2019

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Haywood S. Gilliam, Jr.
United States District Court Judge

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- 29 -

STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG

1
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EXHIBIT A
I,

, acknowledge and declare that I have received a

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copy of the Protective Order (“Order”) in Zomm, LLC v. Apple Inc., United States District Court,

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Northern District of California, Civil Action No. 4:18-cv-04969-HSG. Having read and

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understood the terms of the Order, I agree to be bound by the terms of the Order and consent to

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the jurisdiction of said Court for the purpose of any proceeding to enforce the terms of the Order.

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Name of individual:

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Present occupation/job description:

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Name of Company or Firm:

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Address:

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Dated:

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[Signature]

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STIPULATED
PROTECTIVE ORDER
4:18-cv-04969-HSG