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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United States District Court
Northern District of California

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CLEMENT S. ROBERTS (SBN 209203)
[e-mail]
RAGHAV KRISHNAPRIYAN (SBN 273411)
[e-mail]
LAUREN M. KESSLER (SBN 317834)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
Telephone:
[phone]
Facsimile:
[phone]
PARTH SAGDEO (SBN 325269)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
1000 Marsh Road
Menlo Park, CA 94025-1015
Telephone:
[phone]
Facsimile:
[phone]

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BEN AU (SBN 237854)
[e-mail]
ALYSSA M. CARIDIS (SBN 260103)
[e-mail]
ORRICK, HERRINGTON & SUTCLIFFE LLP
355 S. Grand Avenue, Suite 2700
Los Angeles, CA 90071-1560
Telephone:
[phone]
Facsimile:
[phone]

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Attorneys for Plaintiff CelLink Corp.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CELLINK CORP.,

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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

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1.

PURPOSES AND LIMITATIONS

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Disclosure and discovery activity in this action are likely to involve production of

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confidential, proprietary, or private information for which special protection from public

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disclosure and from use for any purpose other than prosecuting this litigation may be warranted.

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Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated

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Protective Order. The parties acknowledge that this Order does not confer blanket protections on

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all disclosures or responses to discovery and that the protection it affords from public disclosure

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and use extends only to the limited information or items that are entitled to confidential treatment

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under the applicable legal principles. The parties further acknowledge, as set forth in Section 13.3,

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below, that this Stipulated Protective Order does not entitle them to file confidential information

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under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards

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that will be applied when a party seeks permission from the court to file material under seal.

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2.

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DEFINITIONS
2.1

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

information or items under this Order.
2.2

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

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generated, stored or maintained) or tangible things that qualify for protection under Federal Rule

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of Civil Procedure 26(c).

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2.3

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

well as their support staff).

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2.4

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2.5

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

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

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

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CODE”.

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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,

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

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responses to discovery in this matter.

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

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

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

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

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of a Party or of a Party’s competitor.

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Northern District of California

2.7

2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

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

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

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less restrictive means.

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2.9

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely

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sensitive “Confidential Information or Items” representing computer code and associated

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comments and revision histories, formulas, engineering specifications, or schematics that define or

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otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure

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of which to another Party or Non-Party would create a substantial risk of serious harm that could

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not be avoided by less restrictive means.

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2.10

House Counsel: attorneys who are employees of a party to this action, or are

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outside counsel who provide advice to the party. House Counsel does not include Outside Counsel

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of Record or any other outside counsel.

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2.11

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

entity not named as a Party to this action.
2.12

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

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action but are retained to represent or advise a party to this action and have appeared in this action

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

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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).

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2.14

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Material in this action.
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Professional Vendors: persons or entities that provide litigation support services

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(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and

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organizing, storing, or retrieving data in any form or medium) and their employees and

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

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Receiving Party: a Party that receives Disclosure or Discovery Material from a

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Producing Party.

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3.

SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material

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

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

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

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However, the protections conferred by this Stipulation and Order do not cover the following

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

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

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

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

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

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

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

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4.

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

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

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

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and defenses in this action, with or without prejudice; and (2) final judgment herein after the
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completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

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

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applicable law.

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5.

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Northern District of California

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DESIGNATING PROTECTED MATERIAL
5.1

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

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

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

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

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

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portions of the material, documents, items, or communications for which protection is not

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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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5.2

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

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

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

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designated before the material is disclosed or produced.

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Designation in conformity with this Order requires:

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

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

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

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ONLY” to each page that contains protected material. If only a portion or portions of the material
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on a page qualifies for protection, the Producing Party also must clearly identify the protected

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

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portion, the level of protection being asserted.

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

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

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it would like copied and produced. During the inspection and before the designation, all of the

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material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

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copied and produced, the Producing Party must determine which documents, or portions thereof,

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qualify for protection under this Order. Then, before producing the specified documents, the

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Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY”) to each page that contains Protected

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

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

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

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

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Designating Party identify on the record, before the close of the deposition, hearing, or other

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proceeding, all protected testimony and specify the level of protection being asserted. When it is

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

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

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

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

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

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that are appropriately designated for protection within the 21 days shall be covered by the

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provisions of this Stipulated Protective Order. Notwithstanding the above, deposition transcripts

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shall be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” for 21 days after

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receipt of the final transcript. A Designating Party may specify up to 21 days afterwards that the

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entire transcript (or portions thereof) shall be treated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Parties shall give the other parties notice if they reasonably expect a hearing to include

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Protected Material so that the other parties can ensure that only authorized individuals who have

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

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proceedings. With respect to depositions, however, it shall generally be assumed that the deposing

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party will be using Protected Material, so if a party in good faith believes that it is a reasonable

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possibility that no such Protected Material may be used and desires to have an individual attend

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the deposition who is not authorized to see all levels of Protected Materials, that party shall notify

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the other parties in order to confer about whether the individual can attend all or a portion of the

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

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

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ONLY.”

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Any transcript that is prepared before the expiration of a 21-day period for designation

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shall be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL –

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ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that

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period, the transcript shall be treated only as actually designated.

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(c) for information produced in some form other than documentary and for any other

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

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

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. If only a portion or portions of the

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information or item warrant protection, the Producing Party, to the extent practicable, shall

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identify the protected portion(s) and specify the level of protection being asserted.

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5.3

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

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

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right to secure protection under this Order for such material. Upon timely correction of a

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designation, the Receiving Party must make reasonable efforts to assure that the material is treated

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in accordance with the provisions of this Order.
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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
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imposed in the preceding paragraph. Failure by the Designating Party to make such a motion

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including the required declaration within 21 days (or 14 days, if applicable) shall automatically

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waive the confidentiality designation for each challenged designation. After the first 3

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challenges, if the Parties cannot resolve a challenge without court intervention, the Challenging

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Party shall file and serve a motion to challenge confidentiality under Civil Local Rule 7 (and in

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compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of the

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challenge or within 14 days of the parties agreeing that the meet and confer process will not

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resolve their dispute, whichever is earlier. In addition, the Challenging Party may file a motion

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challenging a confidentiality designation at any time if there is good cause for doing so, including

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a challenge to the designation of a deposition transcript or any portions thereof. Any motion

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brought pursuant to this provision must be accompanied by a competent declaration affirming that

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the movant has complied with the meet and confer requirements imposed by the preceding

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paragraph.

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

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

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

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

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

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

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designation until the court rules on the challenge.

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7.

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ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

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

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defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to

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the categories of persons and under the conditions described in this Order. When the litigation has

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been terminated, a Receiving Party must comply with the provisions of Section 14 below (FINAL

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DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and in
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a secure manner that ensures that access is limited to the persons authorized under this Order.
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by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

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information or item designated “CONFIDENTIAL” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of

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

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this litigation;

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(b) House Counsel of the Receiving Party to whom disclosure is reasonably necessary for

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

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A);
(c) Experts (as defined in this Order) of the Receiving Party (and their support personnel)

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Northern District of California

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

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

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

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(d) the court and its personnel;

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(e) court reporters and their staff, professional jury or trial consultants, and Professional

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

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“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably

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necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),

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unless otherwise agreed by the Designating Party or ordered by the court. Pages of

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transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be

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so marked by the court reporter and may not be disclosed to anyone except as permitted under this

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Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian or other

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person who otherwise possessed or knew the information;
(h) any mediator or arbitrator engaged by the Parties to this litigation who has previously

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executed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), as well as their support

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staff.
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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

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

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

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:

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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of

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

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this litigation;

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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

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Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph

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7.4(a)(2), below, have been followed;

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(c) the court and its personnel;

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(d) court reporters and their staff, professional jury or trial consultants, mock jurors, and

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

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

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(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,

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

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

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paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the

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full name of the Expert and the city and state of his or her primary residence, (2) attaches a copy

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of the Expert’s current resume, (3) identifies the Expert’s current employer(s), (4) identifies each

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person or entity from whom the Expert has received compensation or funding for work in his or
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her areas of expertise or to whom the expert has provided professional services, including in

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connection with a litigation, at any time during the preceding five years,11 and (5) identifies (by

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

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

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testimony at a deposition or trial, during the preceding five years. Once an Expert is permitted to

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view “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to this Section 7.4,

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the expert’s support personnel who sign the Acknowledgment and Agreement to Be Bound”

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(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

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

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within 14 days of delivering the request, the Party receives a written objection from the

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

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

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

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agreement within seven days of the written objection. If no agreement is reached, the Party

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

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(and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to

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do so. Any such motion must describe the circumstances with specificity, set forth in detail the

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

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

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addition, any such motion must be accompanied by a competent declaration describing the parties’

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efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer

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discussions) and setting forth the reasons advanced by the Designating Party for its refusal to

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

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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.

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

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

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Absent written consent from the Producing Party, any individual who receives access to

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PROSECUTION BAR

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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information shall not be involved

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in the prosecution of patents or patent applications relating to the design and manufacturing of

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flexible circuits and battery pack interconnects, including without limitation the patents asserted in

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this action and any patent or application claiming priority to or otherwise related to the patents

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asserted in this action, before any foreign or domestic agency, including the United States Patent

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and Trademark Office (“the Patent Office”).2 For purposes of this paragraph, “prosecution”

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includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or

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maintenance of patent claims.3 To avoid any doubt, “prosecution” as used in this paragraph does

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not include representing a party challenging a patent before a domestic or foreign agency

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

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

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ATTORNEYS’ EYES ONLY” information is first received by the affected individual and shall

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end two (2) years after final termination of this action.4

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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

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Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.

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Should discovery related to Source Code become necessary, the parties will address Source Code protections at that
time.

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

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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

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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

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

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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the

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court from which the subpoena or order issued, unless the Party has obtained the Designating

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Party’s permission. The Designating Party shall bear the burden and expense of seeking protection

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in that court of its confidential material – and nothing in these provisions should be construed as

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authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from

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another court.

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10.

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(a)

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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:
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promptly notify in writing the Requesting Party and the Non-Party that

some or all of the information requested is subject to a confidentiality agreement with a NonParty;
2.

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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

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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.

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

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the information requested; and

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(c)

United States District Court
Northern District of California

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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

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

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

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

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

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by the court.36 Absent a court order to the contrary, the Non-Party shall bear the burden and

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

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UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected

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

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Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the

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unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected

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Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the

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terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and

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Agreement to Be Bound” that is attached hereto as Exhibit A.

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12.

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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

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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.

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communication or information covered by the attorney-client privilege or work product protection,

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the parties may incorporate their agreement in the stipulated protective order submitted to the

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court.

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13.

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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

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United States District Court
Northern District of California

MISCELLANEOUS

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 on any ground not addressed in this Stipulated Protective Order. Similarly, no

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Party waives any right to object on any ground to use in evidence of any of the material covered

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by this Protective Order.
13.3

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Filing Protected Material. Without written permission from the Designating Party

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or a court order secured after appropriate notice to all interested persons, a Party may not file in

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the public record in this action any Protected Material. A Party that seeks to file under seal any

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Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

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under seal pursuant to a court order authorizing the sealing of the specific Protected Material at

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

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

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

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Material under seal pursuant to Civil Local Rule 79-5 is denied by the court, then the Receiving

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Party may file the Protected Material in the public record pursuant to Civil Local Rule 79-5 unless

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otherwise instructed by the court.

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14.

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

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

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

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

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the Protected Material is returned or destroyed, the Receiving Party must submit a written
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certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

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by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected

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Material that was returned or destroyed and (2) affirms that the Receiving Party has not retained

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any copies, abstracts, compilations, summaries or any other format reproducing or capturing any

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of the Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival

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copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,

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correspondence, deposition and trial exhibits, expert reports, attorney work product, and

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consultant and expert work product, even if such materials contain Protected Material. Any such

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archival copies that contain or constitute Protected Material remain subject to this Protective Order

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as set forth in Section 4 (DURATION).

United States District Court
Northern District of California

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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: February 1, 2024

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By: /s/ Raghav Krishnapriyan
Raghav Krishnapriyan
ORRICK, HERRINGTON & SUTCLIFFE LLP

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Attorneys for Plaintiff CelLink Corp.

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Dated: February 1, 2024

By: /s/ Alison L. Anderson

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Alison L. Anderson
BOIES SCHILLER FLEXNER LLP

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Attorneys for Defendant Manaflex LLC

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ECF ATTESTATION

United States District Court
Northern District of California

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I, Raghav Krishnapriyan, am the ECF User whose ID and password are being used to file

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this STIPULATED PROTECTIVE ORDER. In compliance with Civil Local Rule 5-1, I hereby

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attest that Alison L. Anderson, counsel for Defendant Manaflex LLC, has concurred in this filing.

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Dated: February 1, 2024

/s/ Raghav Krishnapriyan
Raghav Krishnapriyan

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PURSUANT TO STIPULATION, IT IS SO ORDERED.

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DATED: ________________________
_____________________________________
2/7/2024
Haywood S. Gilliam, Jr.
United States District Judge

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United States District Court
Northern District of California

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EXHIBIT A

United States District Court
Northern District of California

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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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

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_________________ [print or type full address], declare under penalty of perjury that I have read

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in its entirety and understand the Stipulated Protective Order that was issued by the United States

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District Court for the Northern District of California on [date] in the case of CelLink Corp. v.

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Manaflex LLC, Case No. 3:23-cv-4231-HSG. I agree to comply with and to be bound by all the

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terms of this Stipulated Protective Order and I understand and acknowledge that failure to so

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

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

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

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of this Order.

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

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the Northern District of California for the purpose of enforcing the terms of this Stipulated

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Protective Order, even if such enforcement proceedings occur after termination of this action.

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

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_______________________________________ [print or type full address and telephone number]

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as my California agent for service of process in connection with this action or any proceedings

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related to enforcement of this Stipulated Protective Order.

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Date: _________________________________

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City and State where sworn and signed: _________________________________

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Printed name: ______________________________
[printed name]

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Signature: __________________________________
[signature]

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