CelLink Corp. v. Manaflex LLC

Filing 57

ORDER (as modified) by Judge Haywood S. Gilliam, Jr. Granting 55 Proposed Stipulated Protective Order. (ndr, COURT STAFF) (Filed on 2/7/2024)

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1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 CLEMENT S. ROBERTS (SBN 209203) croberts@orrick.com RAGHAV KRISHNAPRIYAN (SBN 273411) rkrishnapriyan@orrick.com LAUREN M. KESSLER (SBN 317834) lkessler@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP The Orrick Building 405 Howard Street San Francisco, CA 94105-2669 Telephone: +1 415 773 5700 Facsimile: +1 415 773 5759 PARTH SAGDEO (SBN 325269) psagdeo@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 1000 Marsh Road Menlo Park, CA 94025-1015 Telephone: +1 650 614 7400 Facsimile: +1 650 614 7401 15 BEN AU (SBN 237854) ben.au@orrick.com ALYSSA M. CARIDIS (SBN 260103) acaridis@orrick.com ORRICK, HERRINGTON & SUTCLIFFE LLP 355 S. Grand Avenue, Suite 2700 Los Angeles, CA 90071-1560 Telephone: +1 213 629 2020 Facsimile: +1 213 612 2499 16 Attorneys for Plaintiff CelLink Corp. 12 13 14 17 18 UNITED STATES DISTRICT COURT 19 NORTHERN DISTRICT OF CALIFORNIA 20 CELLINK CORP., 21 22 23 24 25 26 27 28 Plaintiff, v. MANAFLEX LLC, Case No. 4:23-cv-04231-HSG STIPULATED PROTECTIVE ORDER (AS MODIFIED) Demand For Jury Trial Defendant. Complaint Filed: August 18, 2023 United States District Court Northern District of California 1 1. PURPOSES AND LIMITATIONS 2 Disclosure and discovery activity in this action are likely to involve production of 3 confidential, proprietary, or private information for which special protection from public 4 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 5 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 6 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 7 all disclosures or responses to discovery and that the protection it affords from public disclosure 8 and use extends only to the limited information or items that are entitled to confidential treatment 9 under the applicable legal principles. The parties further acknowledge, as set forth in Section 13.3, 10 below, that this Stipulated Protective Order does not entitle them to file confidential information 11 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards 12 that will be applied when a party seeks permission from the court to file material under seal. 13 2. 14 15 16 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 17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule 18 of Civil Procedure 26(c). 19 20 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff). 21 2.4 22 2.5 Designating Party: a Party or Non-Party that designates information or items that it 23 produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY 24 CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE 25 CODE”. 26 27 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, 28 2 1 testimony, transcripts, and tangible things), that are produced or generated in disclosures or 2 responses to discovery in this matter. 3 Expert: a person with specialized knowledge or experience in a matter pertinent to 4 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as 5 a consultant in this action, (2) is not a past or current employee of a Party, or a current employee 6 of a Party’s competitor, and (3) at the time of retention, is not anticipated to become an employee 7 of a Party or of a Party’s competitor. 8 United States District Court Northern District of California 2.7 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 9 Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another 10 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 11 less restrictive means. 12 2.9 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely 13 sensitive “Confidential Information or Items” representing computer code and associated 14 comments and revision histories, formulas, engineering specifications, or schematics that define or 15 otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure 16 of which to another Party or Non-Party would create a substantial risk of serious harm that could 17 not be avoided by less restrictive means. 18 2.10 House Counsel: attorneys who are employees of a party to this action, or are 19 outside counsel who provide advice to the party. House Counsel does not include Outside Counsel 20 of Record or any other outside counsel. 21 22 23 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 24 action but are retained to represent or advise a party to this action and have appeared in this action 25 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 26 27 2.13 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 28 3 2.14 1 2 Material in this action. 2.15 3 Professional Vendors: persons or entities that provide litigation support services 4 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 5 organizing, storing, or retrieving data in any form or medium) and their employees and 6 subcontractors. 2.16 7 8 Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 2.17 9 United States District Court Northern District of California Producing Party: a Party or Non-Party that produces Disclosure or Discovery Receiving Party: a Party that receives Disclosure or Discovery Material from a 10 Producing Party. 11 3. SCOPE The protections conferred by this Stipulation and Order cover not only Protected Material 12 13 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) 14 all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 15 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 16 However, the protections conferred by this Stipulation and Order do not cover the following 17 information: (a) any information that is in the public domain at the time of disclosure to a 18 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 19 result of publication not involving a violation of this Order, including becoming part of the public 20 record through trial or otherwise; and (b) any information known to the Receiving Party prior to 21 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained 22 the information lawfully and under no obligation of confidentiality to the Designating Party. Any 23 use of Protected Material at trial shall be governed by a separate agreement or order. 24 4. 25 DURATION Even after final disposition of this litigation, the confidentiality obligations imposed by this 26 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 27 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims 28 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 4 1 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 2 including the time limits for filing any motions or applications for extension of time pursuant to 3 applicable law. 4 5. United States District Court Northern District of California 5 DESIGNATING PROTECTED MATERIAL 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 6 or Non-Party that designates information or items for protection under this Order must take care to 7 limit any such designation to specific material that qualifies under the appropriate standards. To 8 the extent it is practical to do so, the Designating Party must designate for protection only those 9 parts of material, documents, items, or oral or written communications that qualify – so that other 10 portions of the material, documents, items, or communications for which protection is not 11 warranted are not swept unjustifiably within the ambit of this Order. 12 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 13 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 14 unnecessarily encumber or retard the case development process or to impose unnecessary 15 expenses and burdens on other parties) expose the Designating Party to sanctions. 16 If it comes to a Designating Party’s attention that information or items that it designated 17 for protection do not qualify for protection at all or do not qualify for the level of protection 18 initially asserted, that Designating Party must promptly notify all other parties that it is 19 withdrawing the mistaken designation. 20 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 21 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 22 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 23 designated before the material is disclosed or produced. 24 Designation in conformity with this Order requires: 25 (a) for information in documentary form (e.g., paper or electronic documents, but 26 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 27 affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 28 ONLY” to each page that contains protected material. If only a portion or portions of the material 5 1 on a page qualifies for protection, the Producing Party also must clearly identify the protected 2 portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each 3 portion, the level of protection being asserted. United States District Court Northern District of California 4 A Party or Non-Party that makes original documents or materials available for inspection 5 need not designate them for protection until after the inspecting Party has indicated which material 6 it would like copied and produced. During the inspection and before the designation, all of the 7 material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL – 8 ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants 9 copied and produced, the Producing Party must determine which documents, or portions thereof, 10 qualify for protection under this Order. Then, before producing the specified documents, the 11 Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY 12 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected 13 Material. If only a portion or portions of the material on a page qualifies for protection, the 14 Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 15 markings in the margins) and must specify, for each portion, the level of protection being asserted. 16 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 17 Designating Party identify on the record, before the close of the deposition, hearing, or other 18 proceeding, all protected testimony and specify the level of protection being asserted. When it is 19 impractical to identify separately each portion of testimony that is entitled to protection and it 20 appears that substantial portions of the testimony may qualify for protection, the Designating Party 21 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right 22 to have up to 21 days to identify the specific portions of the testimony as to which protection is 23 sought and to specify the level of protection being asserted. Only those portions of the testimony 24 that are appropriately designated for protection within the 21 days shall be covered by the 25 provisions of this Stipulated Protective Order. Notwithstanding the above, deposition transcripts 26 shall be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” for 21 days after 27 receipt of the final transcript. A Designating Party may specify up to 21 days afterwards that the 28 6 1 entire transcript (or portions thereof) shall be treated as “CONFIDENTIAL” or “HIGHLY 2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” United States District Court Northern District of California 3 Parties shall give the other parties notice if they reasonably expect a hearing to include 4 Protected Material so that the other parties can ensure that only authorized individuals who have 5 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at the 6 proceedings. With respect to depositions, however, it shall generally be assumed that the deposing 7 party will be using Protected Material, so if a party in good faith believes that it is a reasonable 8 possibility that no such Protected Material may be used and desires to have an individual attend 9 the deposition who is not authorized to see all levels of Protected Materials, that party shall notify 10 the other parties in order to confer about whether the individual can attend all or a portion of the 11 deposition. The use of a document as an exhibit at a deposition shall not in any way affect its 12 designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 13 ONLY.” 14 Any transcript that is prepared before the expiration of a 21-day period for designation 15 shall be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that 17 period, the transcript shall be treated only as actually designated. 18 (c) for information produced in some form other than documentary and for any other 19 tangible items, that the Producing Party affix in a prominent place on the exterior of the container 20 or containers in which the information or item is stored the legend “CONFIDENTIAL” or 21 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a portion or portions of the 22 information or item warrant protection, the Producing Party, to the extent practicable, shall 23 identify the protected portion(s) and specify the level of protection being asserted. 24 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 25 designate qualified information or items does not, standing alone, waive the Designating Party’s 26 right to secure protection under this Order for such material. Upon timely correction of a 27 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 28 in accordance with the provisions of this Order. 7 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed. 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely manner. 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, for the first 3 challenges in this case that require court intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements 8 United States District Court Northern District of California 1 imposed in the preceding paragraph. Failure by the Designating Party to make such a motion 2 including the required declaration within 21 days (or 14 days, if applicable) shall automatically 3 waive the confidentiality designation for each challenged designation. After the first 3 4 challenges, if the Parties cannot resolve a challenge without court intervention, the Challenging 5 Party shall file and serve a motion to challenge confidentiality under Civil Local Rule 7 (and in 6 compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of the 7 challenge or within 14 days of the parties agreeing that the meet and confer process will not 8 resolve their dispute, whichever is earlier. In addition, the Challenging Party may file a motion 9 challenging a confidentiality designation at any time if there is good cause for doing so, including 10 a challenge to the designation of a deposition transcript or any portions thereof. Any motion 11 brought pursuant to this provision must be accompanied by a competent declaration affirming that 12 the movant has complied with the meet and confer requirements imposed by the preceding 13 paragraph. 14 The burden of persuasion in any such challenge proceeding shall be on the Designating 15 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 16 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 17 sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 18 file a motion to retain confidentiality as described above, all parties shall continue to afford the 19 material in question the level of protection to which it is entitled under the Producing Party’s 20 designation until the court rules on the challenge. 21 7. 22 ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 23 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 24 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 25 the categories of persons and under the conditions described in this Order. When the litigation has 26 been terminated, a Receiving Party must comply with the provisions of Section 14 below (FINAL 27 DISPOSITION). 28 Protected Material must be stored and maintained by a Receiving Party at a location and in 9 1 a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 2 3 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 4 information or item designated “CONFIDENTIAL” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 6 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 7 this litigation; 8 (b) House Counsel of the Receiving Party to whom disclosure is reasonably necessary for 9 this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 10 A); (c) Experts (as defined in this Order) of the Receiving Party (and their support personnel) 11 United States District Court Northern District of California Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered 12 to whom disclosure is reasonably necessary for this litigation and who have signed the 13 “Acknowledgment and Agreement to Be Bound” (Exhibit A); 14 (d) the court and its personnel; 15 (e) court reporters and their staff, professional jury or trial consultants, and Professional 16 Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 17 “Acknowledgment and Agreement to Be Bound” (Exhibit A); (f) during their depositions, witnesses in the action to whom disclosure is reasonably 18 19 necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), 20 unless otherwise agreed by the Designating Party or ordered by the court. Pages of 21 transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 22 so marked by the court reporter and may not be disclosed to anyone except as permitted under this 23 Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or other 24 25 person who otherwise possessed or knew the information; (h) any mediator or arbitrator engaged by the Parties to this litigation who has previously 26 27 executed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), as well as their support 28 staff. 10 1 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 2 Information or Items. Unless otherwise ordered by the court or permitted in writing by the 3 Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY 4 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to: 5 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of 6 said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for 7 this litigation; 8 9 United States District Court Northern District of California 7.3 (b) Experts of the Receiving Party and their support personnel (1) to whom disclosure is reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and 10 Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 11 7.4(a)(2), below, have been followed; 12 (c) the court and its personnel; 13 (d) court reporters and their staff, professional jury or trial consultants, mock jurors, and 14 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 15 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 16 17 18 19 20 21 22 (e) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information; and (f) any mediator or arbitrator engaged by the Parties to this litigation who has previously executed the “Acknowledgment and Agreement to Be Bound” (Exhibit A). 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items. (a) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, 23 a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that 24 has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to 25 paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the 26 full name of the Expert and the city and state of his or her primary residence, (2) attaches a copy 27 of the Expert’s current resume, (3) identifies the Expert’s current employer(s), (4) identifies each 28 person or entity from whom the Expert has received compensation or funding for work in his or 11 1 her areas of expertise or to whom the expert has provided professional services, including in 2 connection with a litigation, at any time during the preceding five years,11 and (5) identifies (by 3 name and number of the case, filing date, and location of court) any litigation in connection with 4 which the Expert has offered expert testimony, including through a declaration, report, or 5 testimony at a deposition or trial, during the preceding five years. Once an Expert is permitted to 6 view “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to this Section 7.4, 7 the expert’s support personnel who sign the Acknowledgment and Agreement to Be Bound” 8 (Exhibit A) may view whatever Protected Materials the Expert is entitled to view. (b) A Party that makes a request and provides the information specified in the preceding United States District Court Northern District of California 9 10 respective paragraphs may disclose the subject Protected Material to the identified Expert unless, 11 within 14 days of delivering the request, the Party receives a written objection from the 12 Designating Party. Any such objection must set forth in detail the grounds on which it is based. 13 (c) A Party that receives a timely written objection must meet and confer with the 14 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 15 agreement within seven days of the written objection. If no agreement is reached, the Party 16 seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 17 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to 18 do so. Any such motion must describe the circumstances with specificity, set forth in detail the 19 reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the 20 disclosure would entail, and suggest any additional means that could be used to reduce that risk. In 21 addition, any such motion must be accompanied by a competent declaration describing the parties’ 22 efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer 23 discussions) and setting forth the reasons advanced by the Designating Party for its refusal to 24 approve the disclosure. In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden 25 26 27 28 1 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert should provide whatever information the Expert believes can be disclosed without violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with the Designating Party regarding any such engagement. 12 1 of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) 2 outweighs the Receiving Party’s need to disclose the Protected Material to its Expert. 3 8. Absent written consent from the Producing Party, any individual who receives access to 4 United States District Court Northern District of California PROSECUTION BAR 5 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information shall not be involved 6 in the prosecution of patents or patent applications relating to the design and manufacturing of 7 flexible circuits and battery pack interconnects, including without limitation the patents asserted in 8 this action and any patent or application claiming priority to or otherwise related to the patents 9 asserted in this action, before any foreign or domestic agency, including the United States Patent 10 and Trademark Office (“the Patent Office”).2 For purposes of this paragraph, “prosecution” 11 includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or 12 maintenance of patent claims.3 To avoid any doubt, “prosecution” as used in this paragraph does 13 not include representing a party challenging a patent before a domestic or foreign agency 14 (including, but not limited to, a reissue protest, ex parte reexamination or inter partes 15 reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY” information is first received by the affected individual and shall 17 end two (2) years after final termination of this action.4 18 9. 19 20 21 22 23 24 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION If a Party is served with a subpoena or a court order issued in other litigation that compels disclosure of any information or items designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” that Party must: (a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order; (b) promptly notify in writing the party who caused the subpoena or order to issue in the 25 26 27 28 3 Prosecution includes, for example, original prosecution, reissue and reexamination proceedings. 4 Should discovery related to Source Code become necessary, the parties will address Source Code protections at that time. 13 1 other litigation that some or all of the material covered by the subpoena or order is subject to this 2 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and (c) cooperate with respect to all reasonable procedures sought to be pursued by the 3 4 Designating Party whose Protected Material may be affected.25 If the Designating Party timely seeks a protective order, the Party served with the subpoena United States District Court Northern District of California 5 6 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 7 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the 8 court from which the subpoena or order issued, unless the Party has obtained the Designating 9 Party’s permission. The Designating Party shall bear the burden and expense of seeking protection 10 in that court of its confidential material – and nothing in these provisions should be construed as 11 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 12 another court. 13 10. 14 15 16 17 18 19 20 21 22 23 24 25 (a) 28 The terms of this Order are applicable to information produced by a Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 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: 1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a NonParty; 2. 26 27 A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION promptly provide the Non-Party with a copy of the Stipulated Protective 2 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. 14 1 Order in this litigation, the relevant discovery request(s), and a reasonably specific description of 2 the information requested; and 3 3. (c) United States District Court Northern District of California 4 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 5 days of receiving the notice and accompanying information, the Receiving Party may produce the 6 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 7 seeks a protective order, the Receiving Party shall not produce any information in its possession or 8 control that is subject to the confidentiality agreement with the Non-Party before a determination 9 by the court.36 Absent a court order to the contrary, the Non-Party shall bear the burden and 10 expense of seeking protection in this court of its Protected Material. 11 11. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 12 13 Material to any person or in any circumstance not authorized under this Stipulated Protective 14 Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 15 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 16 Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the 17 terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and 18 Agreement to Be Bound” that is attached hereto as Exhibit A. 19 12. 20 21 22 23 24 25 26 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently 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. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 27 28 3 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 15 1 communication or information covered by the attorney-client privilege or work product protection, 2 the parties may incorporate their agreement in the stipulated protective order submitted to the 3 court. 4 13. 13.1 5 6 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its modification by the court in the future. 13.2 7 United States District Court Northern District of California MISCELLANEOUS Right to Assert Other Objections. By stipulating to the entry of this Protective 8 Order no Party waives any right it otherwise would have to object to disclosing or producing any 9 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 10 Party waives any right to object on any ground to use in evidence of any of the material covered 11 by this Protective Order. 13.3 12 Filing Protected Material. Without written permission from the Designating Party 13 or a court order secured after appropriate notice to all interested persons, a Party may not file in 14 the public record in this action any Protected Material. A Party that seeks to file under seal any 15 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 16 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 17 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request 18 establishing that the Protected Material at issue is privileged, protectable as a trade secret, or 19 otherwise entitled to protection under the law. If a Receiving Party's request to file Protected 20 Material under seal pursuant to Civil Local Rule 79-5 is denied by the court, then the Receiving 21 Party may file the Protected Material in the public record pursuant to Civil Local Rule 79-5 unless 22 otherwise instructed by the court. 23 14. 24 FINAL DISPOSITION Within 60 days after the final disposition of this action, as defined in paragraph 4, each 25 Receiving Party must return all Protected Material to the Producing Party or destroy such material. 26 As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 27 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 28 the Protected Material is returned or destroyed, the Receiving Party must submit a written 16 1 certification to the Producing Party (and, if not the same person or entity, to the Designating Party) 2 by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected 3 Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained 4 any copies, abstracts, compilations, summaries or any other format reproducing or capturing any 5 of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival 6 copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 7 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 8 consultant and expert work product, even if such materials contain Protected Material. Any such 9 archival copies that contain or constitute Protected Material remain subject to this Protective Order 10 as set forth in Section 4 (DURATION). United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 1 2 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Dated: February 1, 2024 3 By: /s/ Raghav Krishnapriyan Raghav Krishnapriyan ORRICK, HERRINGTON & SUTCLIFFE LLP 4 Attorneys for Plaintiff CelLink Corp. 5 6 Dated: February 1, 2024 By: /s/ Alison L. Anderson 7 Alison L. Anderson BOIES SCHILLER FLEXNER LLP 8 Attorneys for Defendant Manaflex LLC 9 10 ECF ATTESTATION United States District Court Northern District of California 11 12 I, Raghav Krishnapriyan, am the ECF User whose ID and password are being used to file 13 this STIPULATED PROTECTIVE ORDER. In compliance with Civil Local Rule 5-1, I hereby 14 attest that Alison L. Anderson, counsel for Defendant Manaflex LLC, has concurred in this filing. 15 16 Dated: February 1, 2024 /s/ Raghav Krishnapriyan Raghav Krishnapriyan 17 18 19 20 21 22 23 24 25 26 27 28 18 1 PURSUANT TO STIPULATION, IT IS SO ORDERED. 2 3 4 DATED: ________________________ _____________________________________ 2/7/2024 Haywood S. Gilliam, Jr. United States District Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 EXHIBIT A United States District Court Northern District of California 1 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of 4 _________________ [print or type full address], declare under penalty of perjury that I have read 5 in its entirety and understand the Stipulated Protective Order that was issued by the United States 6 District Court for the Northern District of California on [date] in the case of CelLink Corp. v. 7 Manaflex LLC, Case No. 3:23-cv-4231-HSG. I agree to comply with and to be bound by all the 8 terms of this Stipulated Protective Order and I understand and acknowledge that failure to so 9 comply could expose me to sanctions and punishment in the nature of contempt. I solemnly 10 promise that I will not disclose in any manner any information or item that is subject to this 11 Stipulated Protective Order to any person or entity except in strict compliance with the provisions 12 of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for 14 the Northern District of California for the purpose of enforcing the terms of this Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this action. 16 I hereby appoint __________________________ [print or type full name] of 17 _______________________________________ [print or type full address and telephone number] 18 as my California agent for service of process in connection with this action or any proceedings 19 related to enforcement of this Stipulated Protective Order. 20 21 Date: _________________________________ 22 City and State where sworn and signed: _________________________________ 23 Printed name: ______________________________ [printed name] 24 25 26 Signature: __________________________________ [signature] 27 28 1

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