Vasudevan Software, Inc. v. International Business Machines Corporation et al

Filing 151

JOINT STIPULATION REGARDING SOURCE CODE OF IBM CORPORATION AS AMENDED BY THE COURT AND ORDER re 145 . Signed by Magistrate Judge Howard R. Lloyd on 07/20/2010. (hrllc1, COURT STAFF) (Filed on 7/20/2010)

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Vasudevan Software, Inc. v. International Business Machines Corporation et al Doc. 151 1 Robert A. Appleby (admitted pro hac vice) robert.appleby@kirkland.com 2 KIRKLAND & ELLIS LLP 601 Lexington Avenue 3 New York, NY 10022-4675 Telephone: (212) 446-4800 4 Facsimile: (212) 446-4900 5 Attorneys for Defendant International Business Machines Corporation 6 7 8 ** E-filed July 20, 2010 ** UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION CASE NO. 5:09-CV-05897-RS JOINT STIPULATION REGARDING SOURCE CODE AS AMENDED BY THE COURT Honorable Richard Seeborg [Re: Docket No. 145] 9 VASUDEVAN SOFTWARE, INC., 10 11 vs. Plaintiff, 12 INTERNATIONAL BUSINESS MACHINES CORP. AND ORACLE CORP. 13 Defendants. 14 15 16 17 INTERNATIONAL BUSINESS MACHINES CORPORATION AND VASUDEVAN SOFTWARE INC.'S JOINT STIPULATION REGARDING SOURCE CODE Defendant International Business Machines Corporation ("IBM") and Plaintiff, Vasudevan 18 Software, Inc. ("VSi") enter into this stipulation to allow VSi immediate access to IBM's source 19 code pursuant to Patent Local Rule 3-4. The parties are attempting to resolve disputes regarding 20 the form of the protective order to govern the litigation, but it is likely the parties will need to 21 submit these disputes to the Court for resolution. Upon entry of a stipulated protective order by 22 the Court, the provisions of that protective order shall supercede nunc pro tunc all provisions of 23 this stipulation. IBM and VSi agree as follows: 24 1. IBM will produce its source code for review by VSi in the Houston office of Hogan 25 Lovells. 26 2. Who may review: VSi may disclose any information or item designated "HIGHLY 27 CONFIDENTIAL ATTORNEYS' EYES ONLY SOURCE CODE" only to: 28 JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS Dockets.Justia.com 1 a. VSi's Outside Counsel of record in this action, as well as employees of said 2 Counsel to whom it is reasonably necessary to disclose the information for this litigation and who 3 have signed the "Agreement to Be Bound by Protective Order" that is attached hereto as Exhibit 4 A; 5 b. Experts for VSi that have been disclosed and not objected to by IBM. Each 6 VSi expert that will review IBM's source code must agree to the provisions of this Stipulation and 7 sign as such the exhibit attached to this Stipulation. Copies of the complete, signed exhibit should 8 be provided to IBM at least two days before reviewing the source code. 9 10 c. d. the Court and its personnel; and current employees of IBM that have access to the source code in their 11 normal course of business. 12 3. Designation: IBM need not designate the source code for protection until after VSi 13 has indicated which material it would like copied and produced. During the inspection and before 14 the designation, all of the source code made available for inspection shall be deemed "HIGHLY 15 CONFIDENTIAL ATTORNEYS' EYES ONLY SOURCE CODE." After VSi has identified 16 the documents it wants copied and produced, IBM must determine which documents, or portions 17 thereof, qua1ify for protection, then, before producing the specified documents, IBM must affix 18 the appropriate legend ("HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY SOURCE 19 CODE") at the top of each page that contains protected source code. 20 4. Protections: Source code designated "HIGHLY CONFIDENTIAL 21 ATTORNEYS' EYES ONLY SOURCE CODE" shall be subject to the following protections: 22 a. Source code designated as "HIGHLY CONFIDENTIAL ATTORNEY'S 23 EYES ONLY SOURCE CODE" shall be subject to all of the protections afforded to "HIGHLY 24 CONFIDENTIAL ATTORNEYS' EYES ONLY" information in the draft Protective Order 25 being negotiated by IBM and VSi, including the Prosecution Bar and Competitive Decision 26 Making Bar set forth in Paragraphs 10 and 11 of Defendants June 10, 2010 draft Protective Order, 27 and may be disclosed only to the individuals to whom "HIGHLY CONFIDENTIAL 28 JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS -2- 1 ATTORNEY'S EYES ONLY SOURCE CODE" information may be disclosed, as set forth in 2 Paragraph 2 of this Stipulation. 3 b. Any source code produced in discovery shall be made available for 4 inspection, in a format allowing it to be reasonably reviewed and searched, during normal business 5 hours or at other mutually agreeable times. The source code shall be made available for inspection 6 on a secured computer in a secured room without Internet access or network access to other 7 computers. VSi shall not copy, remove, or otherwise transfer any portion of the source code onto 8 any recordable media or recordable device. IBM shall provide the software reasonably necessary 9 to inspect the source code. The initial inspection date shall be agreed upon by VSi and IBM. 10 After the initial inspection, each subsequent inspection shall require three business days notice 11 from VSi. 12 c. VSi may print portions of the source code on colored paper only when 13 reasonably necessary to facilitate VSi's preparation in this Litigation, including, when reasonably 14 necessary, to prepare any filing with the Court or to serve any pleadings or other papers on any 15 other Party; to prepare internal attorney work product materials; or to prepare other necessary case 16 materials such as testifying expert reports, consulting expert written analyses and related drafts 17 and correspondences. VSi shall print only such portions as are reasonably necessary for the 18 purposes for which any part of the source code is printed at the time. Upon printing any such 19 portions of source code, the printed pages shall be collected by IBM. IBM shall Bates number, 20 copy on colored paper, and label as "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY 21 - SOURCE CODE" any pages printed by VSi. If IBM objects that the printed portions are not 22 reasonably necessary to any case preparation activity, IBM shall make such objection known to directly (in voice to voice dialogue; other forms of communication are not sufficient) 23 VSi within three (3) business days. If, after meeting and conferring, IBM and VSi cannot resolve 24 the objection, IBM shall be entitled to seek a Court resolution, within two (2) business days of the 25 meet and confer, of whether the printed source code in question is not reasonably necessary to any 26 case preparation activity. In the absence of any objection or a motion to the Court following an 27 objection within the specified time limits, or upon resolution of any such dispute by the Court, 28 IBM shall provide one copy of such pages on colored paper to VSi within two (2) business days JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS -3- 1 and shall retain one copy. The printed pages shall constitute part of the source code produced by 2 IBM in this action 3 d. Any notes concerning such source code shall not be used to circumvent the 4 restrictions in the above paragraphs against making copies of the source code. Persons viewing 5 the notes shall do so in a manner consistent with the restrictions on material designated "HIGHLY 6 CONFIDENTIAL ATTORNEYS' EYES ONLY SOURCE CODE." 7 e. Nothing in this Stipulation shall be construed to limit how IBM may 8 maintain material designated "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY 9 SOURCE CODE." 10 f. Other than as provided in Paragraph 4(c) above, VSi will not copy, remove, 11 or otherwise transfer any source code from the Source Code Computer including, without 12 limitation, copying, removing, or transferring the source code onto any other computers or 13 peripheral equipment. VSi will not transmit any source code in any way from the designated 14 facility. 15 g. VSi may not make any electronic copies of the "HIGHLY 16 CONFIDENTIAL - ATTORNEY'S EYES ONLY - SOURCE CODE" information. VSi shall 17 maintain and store any paper copies of the source code or notes related to such source code at the 18 offices of its Outside Counsel in a manner that prevents duplication of or unauthorized access to 19 the source code or notes, including, without limitation, storing the source code or notes in a locked 20 room or cabinet at all times when it is not in use. VSi's outside counsel of record may make no 21 more than four additional paper copies on colored paper of any portions of the source code printed 22 pursuant to Paragraph 4(c) above, not including copies attached to court filings, and shall maintain 23 a log of all copies of the source code (received from IBM) that are provided by VSi to any Expert 24 (as defined paragraph 2(b)) under the terms of this Stipulation. The log shall include the names of 25 the recipients and reviewers of copies. Any paper copies of source code shall be stored or viewed 26 only at (i) the offices of outside counsel of record for VSi; (ii) the site where any deposition is 27 taken; (iii) the Court; or (iv) any intermediate location necessary to transport the information to a 28 hearing, trial or deposition. IBM shall not unreasonably deny VSi's request to make (and log) JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS -4- 1 additional copies, providing that the request is for good cause and for use that otherwise complies 2 with this Stipulation. IBM shall be entitled to a copy of the log upon request. VSi shall provide a 3 copy of the log to IBM at the conclusion of the Litigation. 4 h. To the extent portions of source code are quoted in a pleading filed with the 5 Court, either (1) the entire document will be stamped "HIGHLY CONFIDENTIAL 6 ATTORNEY'S EYES ONLY - SOURCE CODE" or (2) those pages containing quoted source pursuant to the 7 procedures and 8 standards set forth in Civil 9 Local Rule 10 79-5 and General Order 11 62. 12 code will be separately bound, and stamped as "HIGHLY CONFIDENTIAL - ATTORNEY'S EYES ONLY - SOURCE CODE" and (3) shall be filed under seal. i. All paper copies shall be securely destroyed if they are no longer necessary in the above-captioned matter (e.g., extra copies at the conclusion of a deposition). Copies of source code that are marked as deposition exhibits shall not be provided to the Court Reporter or attached to deposition transcripts; rather, the deposition record will identify the exhibit by its 13 production numbers. 14 5. Nothing in this Stipulation shall obligate the parties to produce any source code, 15 nor act as an admission that any particular source code is discoverable. 16 17 18 DATED: June 24, 2010 19 20 21 22 23 24 25 26 27 28 JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS By: /s/ Harper Batts Robert A. Appleby (admitted pro hac vice) robert.appleby@kirkland.com Jon T. Hohenthaner (admitted pro hac vice) jon.hohenthaner@kirkland.com Joseph A. Loy (admitted pro hac vice) joseph.loy@kirkland.com Andrew G. Heinz (admitted pro hac vice) andrew.heinz@kirkland.com Martin A. Galese (admitted pro hac vice) martin.galese@kirkland.com KIRKLAND & ELLIS LLP 601 Lexington Avenue New York, NY 10022-4675 Telephone: (212) 446-4800 Facsimile: (212) 446-4900 -5- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT STIPULATION REGARDING SOURCE CODE Harper Batts (SBN 242603) harper.batts@kirkland.com KIRKLAND & ELLIS LLP 950 Page Mill Road P.O. Box 51827 Palo Alto, CA 94304 Telephone: (650) 859-7000 Facsimile: (650) 859-7500 John M. Desmarais (of counsel) jdesmarais@desmaraisllp.com Desmarais LLP 230 Park Avenue New York, NY 10169 Telephone: (917) 340-6940 Facsimile: (914) 666-6962 Attorneys for Defendant International Business Machines Corporation /s/_Daniel J. Walker (with permission)___________ Brooke A. M. Taylor (admitted pro hac vice) btaylor@susmangodfrey.com Daniel J. Walker(admitted pro hac vice) dwalker@susmangodfrey.com SUSMAN GODFREY L.L.P. 1201 Third Avenue, Suite 3800 Seattle, Washington 98101-3000 (206) 516-3880 (206) 516-3883 (fax) Stephen E. Morrissey smorrissey@susmangodfrey.com SUSMAN GODFREY L.L.P. 1901 Avenue of the Stars, Ste. 950 Los Angeles, CA 90067-6029 (310) 789-3103 (310) 789-3005 (fax) Michael F. Heim (admitted pro hac vice) mheim@hpcllp.com Leslie V. Payne (admitted pro hac vice) lpayne@hpcllp.com Eric J. Enger (admitted pro hac vice) eenger@hpcllp.com HEIM, PAYNE & CHORUSH, LLP 600 Travis Street, Suite 6710 Houston, Texas 77002-2912 (713) 221-2000 (713) 221-2021(fax) Attorneys for Plaintiff Vasudevan Software, Inc. Case No. 5:09-cv-05897-RS -6- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF SERVICE I hereby certify that on this 24th day of June, 2010, a true and correct copy of the foregoing Joint Stipulation Regarding Source Code was served on all counsel of record via the Court's ECF System. ___/s/ Harper Batts____________________ JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS -7- 1 ORDER 2 3 PURSUANT TO STIPULATION, IT IS SO ORDERED July 20, 2010 ___________________ ________________________________ Hon. Richard .Seeborg HOWARD R LLOYD United States Districtrate Judge United States Magist Judge 4 DATED: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS -8- 1 2 3 I, EXHIBIT ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND _____________________________________ [print or type full name], of 4 ______________________________________ [print or type full address], declare under penalty 5 of perjury that I have read in its entirety and understand the Stipulation regarding source code that 6 was issued by the United States District Court for the Northern District of California on 7 __________ [date] in the case of VASUDEVAN SOFTWARE, INC., v. INTERNATIONAL 8 BUSINESS MACHINES CORPORATION and ORACLE CORPORATION, Case No. 5:09-CV9 05897 (RS & HRL). 10 I agree to comply with and to be bound by all the terms of this Stipulation regarding source 11 code and I understand and acknowledge that failure to so comply could expose me to sanctions 12 and punishment in the nature of contempt. I solemnly promise that I will not disclose in any 13 manner any information or item that is subject to this Stipulation regarding source code to any 14 person or entity except in strict compliance with the provisions of this Stipulation. 15 I further agree to submit to the jurisdiction of the United States District Court for the 16 Northern District of California for the purpose of enforcing the terms of this Stipulation regarding 17 source code, even if such enforcement proceedings occur after termination of this action. 18 I hereby appoint __________________________ __________[print or type full name] of 19 _______________________________________ [print or type full address and telephone number] 20 as my California agent for service of process in connection with this action or any proceedings 21 related to enforcement of this Stipulation regarding source code. 22 Date: __________________________ 23 City and State where sworn and signed: ___________________________________________ 24 25 Printed name: ___________________________________ 26 27 Signature: 28 [printed name] ____________________________________ [signature] JOINT STIPULATION REGARDING SOURCE CODE Case No. 5:09-cv-05897-RS -9-

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