Reflex Packaging Inc. v. Lenovo (United States), Inc.

Filing 22

STIPULATED PROTECTIVE ORDER re 21 (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on 6/30/2010. (hrllc2, COURT STAFF) (Filed on 6/30/2010)

Reflex Packaging Inc. v. Lenovo (United States), Inc.

Doc. 22

*E-FILED 06-30-2010*

1 MICHAEL M. CARLSON (CSBN 88048) E-Mail: [e-mail] 2 SCHNADER HARRISON SEGAL & LEWIS LLP 3 One Montgomery Street, Suite 2200 San Francisco, California 94104-5501 4 Telephone: [phone] Facsimile: 415-364-6785 5 6 Attorneys for Plaintiff REFLEX PACKAGING, INC. 7 8 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP RUSSELL B. HILL, Cal. Bar No. 190070 9 MARK L. BLAKE, Cal. Bar No. 253511 650 Town Center Drive, 4th Floor 10 Costa Mesa, California 92626-1993 Telephone: [phone] Facsimile: 714-513-5130 rhill@sheppardmull i n . c o m 12 [e-mail] 13 Attorneys for Defendant LENOVO (UNITED STATES) INC. 14 15 16 17 18 REFLEX PACKAGING, INC., 19 20 v. Plaintiff, Case No. 5:10-cv-01002-JW STIPULATION AND XXXXXXXXX [PROPOSED] PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS The Hon. James Ware [Complaint Filed: March 9, 2010]
(MODIFIED BY THE COURT)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

21 LENOVO (UNITED STATES) INC. 22 23 24 25 26 27 28
PHDATA 3305950_4

Defendant.

-1-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

Dockets.Justia.com

1 2

1.

PURPOSES AND LIMITATIONS Disclosure and discovery 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 5 warranted. Accordingly, the parties hereby stipulate to and petition the Court to enter the 6 following Stipulated Protective Order. The parties acknowledge that this Order does not 7 confer blanket protections on all disclosures or responses to discovery and that the 8 protection it affords from public disclosure and use extends only to the limited information 9 or items that are entitled to confidential treatment under the applicable legal principles. 10 The parties further acknowledge that this Stipulated Protective Order does not entitle them 11 to file confidential information under seal; Civil Local Rule 79-5 sets forth the procedures 12 that must be followed and the standards that will be applied when a party seeks permission 13 from the Court to file material under seal. 14 15 2. DEFINITIONS 2.1 Challenging Party: a Party or Non-Party that challenges the

16 designation of information or items under this Order. 17 2.2 "CONFIDENTIAL" Information or Items: information (regardless of

18 how it is generated, stored or maintained) or tangible things that qualify for protection 19 under Federal Rule of Civil Procedure 26(c). 20 2.3 Counsel (without qualifier): Outside Counsel of Record and House

21 Counsel (as well as their support staff). 22 2.4 Designating Party: a Party or Non-Party that designates information

23 or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL" 24 or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY". 25 2.5 Disclosure or Discovery Material: all items or information, regardless

26 of the medium or manner in which it is generated, stored, or maintained (including, among 27 28
PHDATA 3305950_4

-2-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 other things, testimony, transcripts, and tangible things), that are produced or generated in 2 disclosures or responses to discovery in this matter. 3 2.6 Expert: a person with specialized knowledge or experience in a

4 matter pertinent to the litigation who (1) has been retained by a Party or its counsel to 5 serve as an expert witness or as a consultant in this action, (2) not a past or current 6 employee of a Party or of a Party's competitor and (3) at the time of retention, is not 7 anticipated to become an employee of a Party or of a Party's competitor. 8 2.7 "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY"

9 Information or Items: extremely sensitive "Confidential Information or Items," disclosure 10 of which to another Party or Non-Party or to House Counsel for a Party would create 11 substantial risk of serious harm that could not be avoided by less restrictive means. For 12 purposes of this case, "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" will be 13 limited to (i) the Parties' non-public financial information, as it relates to costs. revenues 14 and profits generally or from specific products; (ii) information of a competitively or 15 commercially sensitive or proprietary nature or trade secrets regarding any thermoformed 16 cushioning materials made by or for a Party; (iii) non-public customer information, 17 including non-public arrangements and agreements with customers and the prices at which 18 products are sold to customer, but not including the names of the customers or 19 identification of the products sold to them; (iv) research and development materials 20 concerning unreleased products or services; (v) the confidential terms of any licenses; and 21 (vi) any other information that the Parties, through their counsel, agree in writing during 22 the course of this litigation, would create a substantial risk of serious harm if disclosed. 23 Information regarding the number of units of the product of specific thermoformed 24 products manufactured, purchased, sold, imported, exported, or used by or for one of the 25 Parties is not "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY" information. 26 2.8 House Counsel: attorneys who are employees of a party to this action. -3Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets PHDATA 3305950_4

27 House Counsel does not include Outside Counsel of Record or any other outside counsel. 28

1

2.9

Non-Party: any natural person, partnership, corporation, association,

2 or other legal entity not named as a Party to this action. 3 2.10 Outside Counsel of Record: attorneys who are not employees of a

4 party to this action but are retained to represent or advise a party to this action and have 5 appeared in this action on behalf of that party or are affiliated with a law firm which has 6 appeared on behalf of that party. 7 2.11 Party: any party to this action, including all of its officers, directors,

8 employees, consultants, retained experts, and Outside Counsel of Record (and their support 9 staffs). 10 2.12 Producing Party: a Party or Non-Party that produces Disclosure or

11 Discovery Material in this action. 12 2.13 Professional Vendors: persons or entities that provide litigation

13 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 14 demonstrations, and organizing, storing, or retrieving data in any form or medium) and 15 their employees and subcontractors. 16 2.14 Protected Material: any Disclosure or Discovery Material that is

17 designated as "CONFIDENTIAL" or as "HIGHLY CONFIDENTIAL -- ATTORNEYS' 18 EYES ONLY." 19 2.15 Receiving Party: a Party that receives Disclosure or Discovery

20 Material from a Producing Party. 21 22 3. SCOPE The protections conferred by this Stipulation and Order cover not only

23 Protected Material (as defined above), but also (1) any information copied or extracted 24 from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected 25 Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel 26 that might reveal Protected Material. The protections conferred by this Stipulation and 27 Order, however, do not cover the following information: (a) any information that is in the 28
PHDATA 3305950_4

-4-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 public domain at the time of disclosure to a Receiving Party or becomes part of the public 2 domain after its disclosure to a Receiving Party as a result of publication not involving a 3 violation of this Order, including becoming part of the public record through trial or 4 otherwise; and (b) any information known to the Receiving Party prior to the disclosure or 5 obtained by the Receiving Party after the disclosure from a source who obtained the 6 information lawfully and under no obligation of confidentiality to the Designating Party. 7 Any use of Protected Material at trial shall be governed by a separate agreement or order. 8 9 4. DURATION Even after final disposition of this litigation, the confidentiality obligations

10 imposed by this Order shall remain in effect until a Designating Party agrees otherwise in 11 writing or a court order otherwise directs. Final disposition shall be deemed to be the later 12 of (1) dismissal of all claims and defenses in this action, with or without prejudice; and 13 (2) final judgment herein after the completion and exhaustion of all appeals, rehearings, 14 remands, trials, or reviews of this action, including the time limits for filing any motions or 15 applications for extension of time pursuant to applicable law. For a period of six months after 16 17
the final disposition of this action, this court will retain jurisdiction to enforce the terms of this 5. DESIGNATING PROTECTED MATERIAL order.

5.1

Exercise of Restraint and Care in Designating Material for Protection.

18 Each Party or Non-Party that designates information or items for protection under this 19 Order must take reasonable care to limit any such designation to specific material that 20 qualifies under the appropriate standards. To the extent it is practical to do so, the 21 Designating Party must designate for protection only those parts of material, documents. 22 items, or oral or written communications that qualify -- so that other portions of the 23 material, documents, items, or communications for which protection is not warranted are 24 not swept unjustifiably within the ambit of this Order. 25 Mass, indiscriminate, or routinized designations are prohibited.

26 Designations that are shown to be clearly unjustified or that have been made for an 27 improper purpose (e.g., to unnecessarily encumber or retard the case development process 28
PHDATA 3305950_4

-5-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 or to impose unnecessary expenses and burdens on other parties) expose the Designating 2 Party to sanctions. 3 If it comes to a Designating Party's attention that information or items that it

4 designated for protection do not qualify for protection at all or do not qualify for the level 5 of protection initially asserted, that Designating Party must promptly notify all other 6 parties that it is withdrawing the mistaken designation. 7 5.2 Manner and Timing of Designations. Except as otherwise provided in

8 this Order, or as otherwise stipulated or ordered, Disclosure or Discovery Material that 9 qualifies for protection under this Order must be clearly so designated before the material 10 is disclosed or produced. Designation in conformity with this Order requires: 11 (a) for information in documentary form (e.g., paper or electronic

12 documents, but excluding transcripts of depositions or other pretrial or trial proceedings), 13 that the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY 14 CONFIDENTIAL -- ATTORNEYS' EYES ONLY" to each page that contains protected 15 material. 16 A Party or Non-Party that makes original documents or materials available

17 for inspection need not designate them for protection until after the inspecting Party has 18 indicated which material it would like copied and produced. During the inspection and 19 before the designation, all of the material made available for inspection shall be deemed 20 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." After the inspecting 21 Party has identified the documents it wants copied and produced, the Producing Party must 22 determine which documents, or portions thereof, qualify for protection under this Order. 23 Then, before producing the specified documents, the Producing Party must affix the 24 appropriate legend to each page that contains Protected Material. 25 (b) for testimony given in deposition or in other pretrial or trial

26 proceedings, that the Designating Party identify on the record, before the close of the 27 deposition, hearing, or other proceeding, all protected testimony and specify the level of 28
PHDATA 3305950_4

-6-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 protection being asserted. When it is impractical to identify separately each portion of 2 testimony that is entitled to protection and it appears that substantial portions of the 3 testimony may qualify for protection, the Designating Party may invoke on the record 4 (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 5 days to identify the specific portions of the testimony as to which protection is sought and 6 to specify the level of protection being asserted. Only those portions of the testimony that 7 are appropriately designated for protection within the 21 days shall be covered by the 8 provisions of this Stipulated Protective Order. 9 Parties shall give the other parties notice if they reasonably expect a

10 deposition, hearing or other proceeding to include Protected Material so that the other 11 parties can ensure that only authorized individuals who have signed the "Acknowledgment 12 and Agreement to Be Bound" (Exhibit A) are present at those proceedings. The use of a 13 document as an exhibit at a deposition shall not in any way affect its designation as 14 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 15 Transcripts containing Protected Material shall have an obvious legend on

16 the title page that the transcript contains Protected Material, and the title page shall be 17 followed by a list of all pages (including line numbers as appropriate) that have been 18 designated as Protected Material and the level of protection being asserted by the 19 Designating Party. The Designating Party shall inform the court reporter of these 20 requirements. Any transcript that is prepared before the expiration of a 21-day period for 21 designation shall be treated during that period as if it had been designated "HIGHLY 22 CONFIDENTIAL -- ATTORNEYS' EYES ONLY" in its entirety unless otherwise 23 agreed. After the expiration of that period, the transcript shall be treated only as actually 24 designated. 25 (c) for information produced in some form other than documentary

26 and for any other tangible items, that the Producing Party affix in a prominent place on the 27 28
PHDATA 3305950_4

-7-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 exterior of the container or containers in which the information or item is stored the legend 2 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY". 3 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent

4 failure to designate qualified information or items does not, standing alone, waive the 5 Designating Party's right to secure protection under this Order for such material. Upon 6 timely correction of a designation, the Receiving Party must make reasonable efforts to 7 assure that the material is treated in accordance with the provisions of this Order. 8 9 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 6.1 Timing of Challenges. Any Party or Non-Party may challenge a

10 designation of confidentiality at an time. Unless a prompt challenge to a Designating 11 Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, 12 unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party 13 does not waive its right to challenge a confidentiality designation by electing not to mount 14 a challenge promptly after the original designation is disclosed. 15 6.2 Meet and Confer. The Challenging Party shall initiate the dispute

16 resolution process by providing written notice of each designation it is challenging and 17 describing the basis for each challenge. To avoid ambiguity as to whether a challenge has 18 been made, the written notice must recite that the challenge to confidentiality is being 19 made in accordance with this specific paragraph of the Protective Order. The parties shall 20 attempt to resolve each challenge in good faith and must begin the process by conferring 21 directly within 14 days of the date of service of notice. In conferring, the Challenging 22 Party must explain the basis for its belief that the confidentiality designation was not 23 proper and must give the Designating Party an opportunity to review the designated 24 material, to reconsider the circumstances, and, if no change in designation is offered, to 25 explain the basis for the chosen designation. A Challenging Party may proceed to the next 26 stage of the challenge process only if it has engaged in this meet and confer process first or 27 28
PHDATA 3305950_4

-8-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 establishes that the Designating Party is unwilling to participate in the meet and confer 2 process in a timely manner. 3 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without

4 Court intervention, the Designating Party shall file and serve a motion to retain 5 confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 6 applicable) within 21 days of the initial notice of challenge or within 14 days of the parties 7 agreeing that the meet and confer process will not resolve their dispute, whichever is 8 earlier. Each such motion must be accompanied by a competent declaration affirming that 9 the movant has complied with the meet and confer requirements imposed in the preceding 10 paragraph. Failure by the Designating Party to make such a motion including the required 11 declaration within 21 days (or 14 days, if applicable) shall automatically waive the 12 confidentiality designation for each challenged designation. In addition, the Challenging 13 Party may file a motion challenging a confidential designation at any time if there is good 14 cause for doing so, including a challenge to the designation of a deposition transcript or 15 any portions thereof. Any motion brought pursuant to this provision must be accompanied 16 by a competent declaration affirming that the movant has complied with the meet and 17 confer requirements imposed by the preceding paragraph. 18 The burden of persuasion in any such challenge proceeding shall be on the

19 Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to 20 harass or impose unnecessary expenses and burdens on other parties) may expose the 21 Challenging Party to sanctions. Unless the Designating Party has waived the 22 confidentiality designation by failing to file a motion to retain confidentiality as described 23 above, all parties shall continue to afford the material in question the level of protection to 24 which it is entitled under the Producing Party's designation until the Court rules on the 25 challenge. 26 27 28
PHDATA 3305950_4

-9-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 2

7.

ACCESS TO AND USE OF PROTECTED MATERIAL 7.1 Basic Principles. A Receiving Party may use Protected Material that

3 is disclosed or produced by another Party or by a Non-Party in connection with this case 4 only for prosecuting, defending, or attempting to settle this litigation. Such Protected 5 Material may be disclosed only to the categories of persons and under the conditions 6 described in this Order. When the litigation has been terminated, a Receiving Party must 7 comply with the provisions of section 13 below (FINAL DISPOSITION). 8 Protected Material must be stored and maintained by a Receiving Party at a

9 location and in a secure manner that ensures that access is limited to the persons authorized 10 under this Order. 11 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless

12 otherwise ordered by the Court or permitted in writing by the Designating Party, a 13 Receiving Party may disclose any information or item designated "CONFIDENTIAL" 14 only to: 15 (a) the Receiving Party's Outside Counsel of Record in this action,

16 as well as employees of said Outside Counsel of Record to whom it is reasonably 17 necessary to disclose the information for this litigation and who have signed the 18 "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A; 19 (b) the officers, directors, and employees (including House

20 Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this 21 litigation and who have signed the "Acknowledgment and Agreement to Be Bound" 22 (Exhibit A); 23 (c) Experts (as defined in this Order) of the Receiving Party to

24 whom disclosure is reasonably necessary for this litigation and who have signed the 25 "Acknowledgment and Agreement to Be Bound" (Exhibit A); 26 27 28
PHDATA 3305950_4

(d)

the Court and its personnel; -10Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1

(e)

court reporters and their staff, professional jury or trial

2 consultants, and Professional Vendors to whom disclosure is reasonably necessary for this 3 litigation and who have signed the "Acknowledgment and Agreement to Be Bound" 4 (Exhibit A); 5 (f) during their depositions, witnesses in the action to whom

6 disclosure is reasonably necessary and who have signed the "Acknowledgment and 7 Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or 8 ordered by the Court. Pages of transcribed deposition testimony or exhibits to depositions 9 that reveal Protected Material must be separately bound by the court reporter and may not 10 be disclosed to anyone except as permitted under this Stipulated Protective Order. 11 (g) the author or recipient of a document containing the

12 information or a custodian or other person who otherwise possessed or knew the 13 information. 14 7.3 Disclosure of "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES

15 ONLY" Information or Items. Unless otherwise ordered by the Court or permitted in 16 writing by the Designating Party, a Receiving Party may disclose any information or item 17 designated "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" only to: 18 (a) the Receiving Party's Outside Counsel of Record in this action.

19 as well as employees of said Outside Counsel of Record to whom it is reasonably 20 necessary to disclose the information for this litigation and who have signed the 21 "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A; 22 (b) Experts of the Receiving Party (1) to whom disclosure is

23 reasonably necessary for this litigation, (2) who have signed the "Acknowledgment and 24 Agreement to Be Bound" (Exhibit A), and (3) as to whom the procedures set forth in 25 paragraph 7.4(a)(2), below, have been followed; 26 27 28
PHDATA 3305950_4

(c)

the Court and its personnel; -11Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1

(d)

court reporters and their staff, professional jury or trial

2 consultants, and Professional Vendors to whom disclosure is reasonably necessary for this 3 litigation and who have signed the "Acknowledgment and Agreement to Be Bound" 4 (Exhibit A); and 5 (e) the author or recipient of a document containing the

6 information or a custodian or other person who otherwise possessed or knew the 7 information. 8 7.4 Procedures for Approving or Objecting to Disclosure of "HIGHLY

9 CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information or Items to Experts. 10 (a) Unless otherwise ordered by the Court or agreed to in writing

11 by the Designating Party, a Party that seeks to disclose to an Expert (as defined in this 12 Order) any information or item that has been designated "HIGHLY CONFIDENTIAL -13 ATTORNEYS' EYES ONLY" pursuant to paragraph 7.3(c) first must make a written 14 request to the Designating Party that (1) identifies the general categories of "HIGHLY 15 CONFIDENTIAL - ATTORNEYS' EYES ONLY" information that the Receiving Party 16 seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert and the 17 city and state of his or her primary residence, (3) attaches a copy of the Expert's current 18 resume, (4) identifies the Expert's current employer(s), (5) identifies each person or entity 19 from whom the Expert has received compensation or funding for work in his or her areas 20 of expertise or to whom the expert has provided professional services, including in 21 connection with a litigation, at any time during the preceding five years and (6) identities 22 (by name and number of the case, filing date, and location of court) any litigation in 23 connection with which the Expert has offered expert testimony, including through a 24 declaration, report, or testimony at a deposition or trial, during the preceding five years. 25 (b) A Party that makes a request and provides the information

26 specified in the preceding respective paragraphs may disclose the subject Protected 27 Material to the identified Expert unless, within 10 days of delivering the request, the Party 28
PHDATA 3305950_4

-12-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 receives a written objection from the Designating Party. Any such objection must set forth 2 in detail the grounds on which it is based. 3 (c) A Party that receives a timely written objection must meet and

4 confer with the Designating Party (through direct voice to voice dialogue) to try to resolve 5 the matter by agreement within seven days of the written objection. If no agreement is 6 reached, the Party seeking to make the disclosure to the Expert may file a motion as 7 provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if 8 applicable) seeking permission from the Court to do so. Any such motion must describe 9 the circumstances with specificity, set forth in detail the reasons why the disclosure to the 10 Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and 11 suggest any additional means that could be used to reduce that risk. In addition, any such 12 motion must be accompanied by a competent declaration describing the parties' efforts to 13 resolve the matter by agreement (i.e., the extent and the content of the meet and confer 14 discussions) and setting forth the reasons advanced by the Designating Party for its refusal 15 to approve the disclosure. 16 In any such proceeding, the Party opposing disclosure to the

17 Expert shall bear the burden of proving that the risk of harm that the disclosure would 18 entail (under the safeguards proposed) outweighs the Receiving Party's need to disclose the 19 Protected Material to its Expert. 20 7.5 "HIGHLY CONFIDENTIAL ATTORNEYS' EYES ONLY"

21 information may be disclosed to a specifically designated House Counsel of a Party only if 22 such disclosure is first agreed to in writing by the Designating Party or upon further order 23 of the Court. Nothing in this Order will preclude such agreement or further order. Any 24 House Counsel allowed to see such information after an agreement or order must sign the 25 "Acknowledgment and Agreement to Be Bound" (Exhibit A) and will be bound by this 26 Order. 27 28
PHDATA 3305950_4

-13-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED

2 IN OTHER LITIGATION 3 If a Party is served with a subpoena or a court order issued in other litigation

4 that compels disclosure of any information or items designated in this action as 5 "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" that 6 Party must: 7 8 (a) (b)
, promptly notify in writing the Designating Party. including a copy of the subpoena or court order.

promptly notify in writing the party who caused the subpoena

9 or order to issue in the other litigation that some or all of the material covered by the 10 subpoena or order is subject to this Protective Order. 11 (c) cooperate with respect to all reasonable procedures sought to

12 be pursued by the Designating Party whose Protected Material may be affected. 13 If the Designating Party timely seeks a protective order, the Party served

14 with the subpoena or court order shall not produce any information designated in this 15 action as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES 16 ONLY" before a determination by the Court from which the subpoena or order issued, 17 unless the Party has obtained the Designating Party's permission. The Designating Party 18 shall hear the burden and expense of seeking protection in that court of its confidential === 19 material and nothing in these provisions should he construed as authorizing or encouraging 20 a Receiving Party in this action to disobey a lawful directive from another Court. 21 22 9. NON-PARTY PROTECTED MATERIALS (a) The terms of this Order are applicable to information produced
bear

23 by a Non-Party in this action. Such information produced by Non-Parties in connection 24 with this litigation is protected by the remedies and relief provided by this Order. Nothing 25 in these provisions should be construed as prohibiting a Non-Party from seeking additional 26 protections. 27 28
PHDATA 3305950_4

-14-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1

(b)

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

2 request, to produce a Non-Party's confidential information in its possession and the Party is 3 subject to an agreement with the Non-Party not to produce the Non-Party's confidential 4 information, then the Party shall: 5 1. promptly notify in writing the Requesting Party and the

6 Non-Party that some or all of the information requested is subject to a confidentiality 7 agreement with a Non- Party; 8 2. promptly provide the Non-Party with a copy of the

9 Stipulated Protective Order in this litigation, the relevant discovery request(s), and a 10 reasonably specific description of the information requested; and 11 12 by the Non-Party. 13 (c) If the Non-Party fails to object or seek a protective order from 3. make the information requested available for inspection

14 this Court within 14 days of receiving the notice and accompanying information, the 15 Receiving Party may produce the Non-Party's confidential information responsive to the 16 discovery request. If the Non-Party timely seeks a protective order, the Receiving Party 17 shall not produce any information in its possession or control that is subject to the 18 confidentiality agreement with the Non-Party before a determination by the Court. Absent 19 a court order to the contrary, the Non-Party shall bear the burden and expense of seeking 20 protection in this court of its Protected Material. 21 22 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL If a Receiving Party learns that, by inadvertence or otherwise, it has

23 disclosed Protected Material to any person or in any circumstance not authorized under 24 this Stipulated Protective Order, the Receiving Party must immediately (a) notify in 25 writing the Designating Party of the unauthorized disclosures, (b) use its best efforts to 26 retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons 27 to whom unauthorized disclosures were made of all the terms of this Order, and (d) cause 28
PHDATA 3305950_4

-15-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 such person or persons to execute the "Acknowledgment and Agreement to Be Bound" 2 that is attached hereto as Exhibit A. 3 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

4 PROTECTED MATERIAL 5 If information is produced in discovery that is subject to a claim of privilege

6 or of protection as trial-preparation material, the party making the claim may notify any 7 party that received the information of the claim and the basis for it. After being notified, a 8 party must promptly return or destroy the specified information and any copies it has and 9 may not sequester, use or disclose the information until the claim is resolved. This includes 10 a restriction against presenting the information to the court for a determination of the 11 claim. This provision is not intended to modify whatever procedure may be established in 12 an e-discovery order that provides for production without prior privilege review. Pursuant 13 to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on 14 the effect of disclosure of a communication or information covered by the attorney-client 15 privilege or work product protection, the parties may incorporate their agreement in the 16 stipulated protective order submitted to the Court. 17 18 12. MISCELLANEOUS 12.1 Right to Further Relief. Nothing in this Order abridges the right of

19 any person to seek its modification by the Court in the future. 20 12.2 Right to Assert Other Objections. By stipulating to the entry of this

21 Protective Order no Party waives any right it otherwise would have to object to disclosing 22 or producing any information or item on any ground not addressed in this Stipulated 23 Protective Order. Similarly, no Party waives any right to object on any ground to use in 24 evidence of any of the material covered by this Protective Order. 25 12.3 Filing Protected Material. Without written permission from the

26 Designating Party or a court order secured after appropriate notice to all interested persons, 27 a Party may not file in the public record in this action any Protected Material. A Party that 28
PHDATA 3305950_4

-16-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5. 2 Protected Material may only be filed under seal pursuant to a court order authorizing the 3 sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a 4 sealing order will issue only upon a request establishing that the Protected Material at issue 5 is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. 6 If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local 7 Rule 79-5(d) is denied by the Court, then the Receiving Party may file the Protected 8 Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise 9 instructed by the Court. 10 11 13. FINAL DISPOSITION Within 60 days after the Final Disposition of this action, as defined in

12 paragraph 4, each Receiving Party must return all Protected Material to the Producing 13 Party or destroy such material. As used in this subdivision, "all Protected Material" 14 includes all copies, abstracts, compilations, summaries, and any other format reproducing 15 or capturing any of the Protected Material. Whether the Protected Material is returned or 16 destroyed, the Receiving Party must submit a written certification to the Producing Party 17 (and, if not the same person or entity, to the Designating Party) by the 60 day deadline that 18 (1) identifies (by category, where appropriate) all the Protected Material that was returned 19 or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts, 20 compilations, summaries or any other format reproducing or capturing any of the Protected 21 Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of 22 all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 23 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 24 25 26 27 28
PHDATA 3305950_4

-17-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 consultant and expert work product, even if such materials contain Protected Material. 2 Any such archival copies that contain or constitute Protected Material remain subject to 3 this Protective Order as set forth in Section 4 (DURATION). 4 5 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 6 7 Dated: June 29, 2010 8 9 10 11 12 13 14 15 16 17 18 By: /s/ Russell B. Hill RUSSELL B. HILL Attorneys for Defendant LENOVO (UNITED STATES) INC. Dated: June 29, 2010 By: /s/ Michael M. Carlson MICHAEL M. CARLSON Attorneys for Plaintiff REFLEX PACKAGING, INC. SCHNADER HARRISON SEGAL & LEWIS LLP

SHEPPARD, MULLIN, RICHTER & HAMPTON LLP

AS MODIFIED BY THE COURT, ^

19 PURSUANT TO STIPULATION, IT IS SO ORDERED. 20 21 22 23 24 25 26 27 28
PHDATA 3305950_4

Date: ______Ju________________ _ ne 30, 2010 Hon. ========== Howard R. Lloyd James Ware UNITED STATES ========= JUDGE DISTRICT
MAGISTRATE

-18-

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets

1 2 3

EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND I, ________________________ [print or type full name], of

4 ______________________ [print or type full address], declare under penalty of perjury 5 that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Northern District of California on 7 _______________ in the case of Reflex Packaging, Inc., v. Lenovo (United States) Inc., 8 Case No. 5:10-cv-01002-JW. I agree to comply with and to be bound by all the terms of 9 this Stipulated Protective Order and I understand and acknowledge that failure to so 10 comply could expose me to sanctions and punishment in the nature of contempt. I 11 solemnly promise that I will not disclose in any manner any information or item that is 12 subject to this Stipulated Protective Order to any person or entity except in strict 13 compliance with the provisions of this Order. 14 I further agree to submit to the jurisdiction of the United States District Court

15 for the Northern District of California for the purpose of enforcing the terms of this 16 Stipulated Protective Order, even if such enforcement proceedings occur after termination 17 of this action. 18 I hereby appoint _____________________ [print or type full name] of

19 ______________________ [print or type full address and telephone number] as my 20 California agent for service of process in connection with this action or any proceedings 21 related to enforcement of this Stipulated Protective Order. 22 Date: __________________________________ 23 24 City and State where sworn and signed: _______________________________________ 25 Printed name: ___________________________ 26 [printed name] -19Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential Information And/Or Trade Secrets PHDATA 3305950_4

27 Signature: ______________________________ 28 [signature]