Fujitsu Limited v. Belkin International, Inc. et al

Filing 122

STIPULATED PROTECTIVE ORDER. Signed by Judge Paul S. Grewal on May 18, 2011. (psglc1, COURT STAFF) (Filed on 5/18/2011)

EXHIBIT 1

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COVINGTON & BURLING LLP
Robert D. Fram ([e-mail]) (CA Bar No. 126750)
Dale A. Rice ([e-mail]) (CA Bar No. 146249)
One Front Street
San Francisco, CA 94111-5356
Telephone:
[phone]
Facsimile:
[phone]
COVINGTON & BURLING LLP
Philip A. Irwin ([e-mail]) (admitted pro hac vice)
The New York Times Building
620 Eighth Avenue
New York, NY 10018-1405
Telephone:
212.841.1000
Facsimile:
212.841.1010
COVINGTON & BURLING LLP
Gary M. Rubman ([e-mail]) (admitted pro hac vice)
1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiff Fujitsu Limited

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WINSTON & STRAWN LLP
David Enzminger ([e-mail]) (CA Bar No. 137065)
333 S. Grand Avenue
Los Angeles, CA 90071-2899
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants Belkin International Inc. and Belkin, Inc. 

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[COUNSEL FOR OTHER DEFENDANTS LISTED ON SIGNATURE PAGE]

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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN JOSE DIVISION

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FUJITSU LIMITED,
Plaintiff,
v.
BELKIN INTERNATIONAL, INC.,
BELKIN, INC., D-LINK CORPORATION,
D-LINK SYSTEMS, INC., NETGEAR,
INC., ZYXEL COMMUNICATIONS
CORPORATION, and ZYXEL
COMMUNICATIONS, INC.,
Defendant.

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AND RELATED COUNTERCLAIMS

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STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)
SF: 150750-1

Case No. 10-cv-03972-LHK (PSG)
STIPULATED PROTECTIVE ORDER

Before:

The Honorable Lucy H. Koh

Discovery Matters Assigned to:
Magistrate Judge Paul S. Grewal

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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

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

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protections on all disclosures or responses to discovery and that the protection it affords from

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public disclosure and use extends only to the limited information or items that are entitled to

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confidential treatment under the applicable legal principles. The parties further acknowledge, as

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set forth in Section 14.4, below, that this Stipulated Protective Order does not entitle them to file

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

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

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file material under seal.

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2.

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DEFINITIONS
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).
2.4

Designated House Counsel: House Counsel who seek access to “HIGHLY

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
2.5

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

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

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

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SOURCE CODE.”

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STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

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2.6

Disclosure or Discovery Material: all items or information, regardless of the

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medium or manner in which it is generated, stored, or maintained (including, among other

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

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or responses to discovery in this matter.

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2.7

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

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

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

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

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or of a Party’s competitor.

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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:

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

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associated comments and revision histories, formulas, engineering specifications, or schematics

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that define or otherwise describe in detail the algorithms or structure of software or hardware

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designs, disclosure of which to another Party or Non-Party would create a substantial risk of

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serious harm that could 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 and no

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more than one designated attorney who is an employee of Fujitsu America, Inc. and licensed to

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practice law in the United States.. House Counsel does not include Outside Counsel of Record

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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

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

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STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

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

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that party.
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consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.14

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Party: any party to this action, including all of its officers, directors, employees,

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

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.
2.16

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

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

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“HIGHLY CONFIDENTIAL – SOURCE CODE.”
2.17

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

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Producing Party.

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3.

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

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

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Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any

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testimony, conversations, or presentations by Parties or their Counsel that reveal Protected

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

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

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

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Party as a result of publication not involving a violation of this Order, including becoming part

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

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Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a

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source who obtained the information lawfully and under no obligation of confidentiality to the

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STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

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Designating Party. Any use of Protected Material at trial shall be governed by a separate

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agreement or order.

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4.

DURATION

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

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

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

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claims and defenses in this action, with or without prejudice; and (2) final judgment herein after

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the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this

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action, including the time limits for filing any motions or applications for extension of time

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pursuant to applicable law.

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5.

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DESIGNATING PROTECTED MATERIAL
5.1

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

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

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take care to limit any such designation to specific material that qualifies under the appropriate

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

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

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

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

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

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

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

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expenses and burdens on other parties) expose the Designating Party to sanctions.

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If it comes to a Designating Party’s attention that information or items that it designated

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

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

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withdrawing the mistaken designation.

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5.2

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

(see, e.g., sections 5.2(a) and 5.3, below), or as otherwise stipulated or ordered, Disclosure or
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

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

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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

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Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’

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EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page or each

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discrete file that contains protected material. If only a portion or portions of the material on a

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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

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

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which material it would like copied and produced. During the inspection and before the

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designation, all of the material made available for inspection shall be deemed “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified

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the documents it wants copied and produced, the Producing Party must determine which

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documents, or portions thereof, qualify for protection under this Order. Then, before producing

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the specified documents, the Producing Party must affix the appropriate legend

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

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“HIGHLY CONFIDENTIAL – SOURCE CODE) to each page or each discrete file that

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contains Protected Material. If only a portion or portions of the material on a page qualifies for

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

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making appropriate markings in the margins) and must specify, for each portion, the level of

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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
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

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is 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

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Party may invoke on the record (before the deposition, hearing, or other proceeding is

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concluded) a right to have up to 28 days to identify the specific portions of the testimony as to

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which protection is sought and to specify the level of protection being asserted. Only those

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portions of the testimony that are appropriately designated for protection within the 28 days

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shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a

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Designating Party may specify, at the deposition or up to 21 days afterwards if that period is

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properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Parties shall give the other parties notice if they reasonably expect a deposition, hearing

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or other proceeding to include Protected Material so that the other parties can ensure that only

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authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”

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(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a

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deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY

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CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

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Transcripts containing Protected Material shall have an obvious legend on the title page

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that the transcript contains Protected Material, and the title page shall be followed by a list of all

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pages (including line numbers as appropriate) that have been designated as Protected Material

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and the level of protection being asserted by the Designating Party. The Designating Party shall

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inform the court reporter of these requirements. Any transcript that is prepared before the

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expiration of a 21-day period for designation shall be treated during that period as if it had been

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designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless

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otherwise agreed. After the expiration of that period, the transcript shall be treated only as

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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

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container or containers in which the information or item is stored the legend
STIPULATED PROTECTIVE ORDER
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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE”. 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.
5.3

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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

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treated 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

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

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

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

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

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original designation is disclosed.

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6.2

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

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

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

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

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

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

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

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

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

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

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

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stage of the challenge process only if it has engaged in this meet and confer process first or
STIPULATED PROTECTIVE ORDER
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establishes that the Designating Party is unwilling to participate in the meet and confer process

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in a timely manner.

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6.3

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

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

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Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 28 days

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of the initial notice of challenge or within 21 days of the parties agreeing that the meet and

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

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

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

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to make such a motion including the required declaration within 28 days (or 21 days, if

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applicable) shall automatically waive the confidentiality designation for each challenged

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designation. In addition, the Challenging Party may file a motion challenging a confidentiality

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

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designation of a deposition transcript or any portions thereof. Any motion brought pursuant to

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this provision must be accompanied by a competent declaration affirming that the movant has

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complied with the meet and confer requirements imposed by the preceding 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

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

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prosecuting, defending, or attempting to settle this litigation or any pending reexamination

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proceedings relating to the patent-in-suit. Such Protected Material may be disclosed only to the
STIPULATED PROTECTIVE ORDER
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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 15 below

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(FINAL DISPOSITION).

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Protected Material must be stored and maintained by a Receiving Party at a location and

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in a secure manner that ensures that access is limited to the persons authorized under this Order.

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7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, a Receiving Party may

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disclose any 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

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

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;

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(b)

the officers, directors, and employees (including House Counsel) of the

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Receiving Party and no more than one designated attorney who is an employee of Fujitsu

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America, Inc. and licensed to practice law in the United States to whom disclosure is reasonably

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necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” (Exhibit A);

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(c)

Experts (as defined in this Order) of the Receiving Party to whom disclosure is

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reasonably necessary for this litigation and who have signed the “Acknowledgment and

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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

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

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

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(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

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A), 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
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be separately bound by the court reporter and may not be disclosed to anyone except as

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permitted under this Stipulated Protective Order.

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(g)

the author or recipient of a document containing the information or a custodian or

other person who otherwise possessed or knew the information.
7.3

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and

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“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise

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ordered by the court or permitted in writing by the Designating Party, and except as provided in

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section 9, a Receiving Party may disclose any information or item designated “HIGHLY

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

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SOURCE CODE” only to:
(a)

the Receiving Party’s Outside Counsel of Record in this action, as well as

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

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information for this litigation and who have signed the “Acknowledgment and Agreement to Be

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Bound” that is attached hereto as Exhibit A;

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(b)

Designated House Counsel of the Receiving Party and no more than one

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designated attorney who is an employee of Fujitsu America, Inc. and licensed to practice law in

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the United States (1) who has no involvement in competitive decision-making, (2) to whom

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disclosure is reasonably necessary for this litigation, (3) who has signed the “Acknowledgment

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and Agreement to Be Bound” (Exhibit A), and (4) as to whom the procedures set forth in

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paragraph 7.4(a)(1), below, have been followed. Notwithstanding the above, the

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aforementioned Designated House Counsel and/or designated attorney shall not be permitted to

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view competitively-sensitive financial information or documents designated "CONFIDENTIAL

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-- ATTORNEYS' EYES ONLY" (e.g., cost, price, profit, market share, customer lists),

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disclosure of which to another Party or Non-Party would create a substantial risk of serious

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harm, except in the form of summaries of total annual or quarterly sales revenues or unit sales

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volumes;

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(c)

Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”
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(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have

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been followed;

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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

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

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

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(f)

the author or recipient of a document containing the information or a custodian or

other person who otherwise possessed or knew the information.
7.4

Procedures for Approving or Objecting to Disclosure of “HIGHLY

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

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SOURCE CODE” Information or Items to Designated House Counsel or Experts.

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(a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating

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Party, a Party that seeks to disclose to Designated House Counsel 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 Designated House Counsel and the city and state of his or her residence, (2) sets

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forth the jurisdictions in which the Designated House Counsel is admitted to practice law to the

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extent that such an admission requirement applies, and (3) describes the Designated House

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Counsel’s current and reasonably foreseeable future primary job duties and responsibilities in

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sufficient detail to determine if House Counsel is involved, or may become involved, in any

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competitive decision-making.

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(a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating

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

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item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

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“HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c) first must make

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a written request to the Designating Party that (1) identifies the general categories of “HIGHLY

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

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SOURCE CODE” information that the Receiving Party seeks permission to disclose to the
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Expert, (2) sets forth the full name of the Expert, the city and state of his or her primary

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residence, and his or her business address, (3) attaches a copy of the Expert’s current resume,

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(4) identifies the Expert’s current employer(s), (5) identifies each person or entity from whom

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the Expert has received compensation or funding for work in his or her areas of expertise or to

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whom the expert has provided professional services, including in connection with a litigation, at

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any time during the preceding five years,1 and (6) identifies (by name and number of the case,

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filing date, and location of court) any litigation in connection with which the Expert has offered

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expert testimony, including through a declaration, report, or testimony at a deposition or trial,

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during the preceding five years.
(b)

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A Party that makes a request and provides the information specified in the

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preceding respective paragraphs may disclose the subject Protected Material to the identified

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Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party

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receives a written objection from the Designating Party. Any such objection must set forth in

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detail the grounds on which it is based.
(c)

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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

17

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

18

seeking to make the disclosure to Designated House Counsel or the Expert may file a motion as

19

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

20

seeking permission from the court to do so. Any such motion must describe the circumstances

21

with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel

22

or the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail,

23

and suggest any additional means that could be used to reduce that risk. In addition, any such

24

motion must be accompanied by a competent declaration describing the parties’ efforts to

25
26
27
28

1

If the Expert believes any of this information is subject to a confidentiality obligation to a third-party,
then the Expert should provide whatever information the Expert believes can be disclosed without
violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be
available to meet and confer with the Designating Party regarding any such engagement.

STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

12

1

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

2

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

3

approve the disclosure.
In any such proceeding, the Party opposing disclosure to Designated House Counsel or

4
5

the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail

6

(under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected

7

Material to its Designated House Counsel or Expert.

8

8.

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

9
10

“HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved in the

11

prosecution of patents or patent applications relating to a card type input/output interface device,

12

including without limitation the patents asserted in this action and any patent or application

13

claiming priority to or otherwise related to the patents asserted in this action, before any foreign

14

or domestic agency, including the United States Patent and Trademark Office (“the Patent

15

Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly drafting,

16

amending, advising, or otherwise affecting the scope or maintenance of patent claims.2 To

17

avoid any doubt, “prosecution” as used in this paragraph does not include representing a party

18

challenging or defending a patent before a domestic or foreign agency (including, but not

19

limited to, a reissue protest, ex parte reexamination or inter partes reexamination). This

20

Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL – SOURCE CODE”

21

information is first received by the affected individual and shall end two (2) years after final

22

termination of this action.

23
24
25
26
2

27
28

Prosecution includes, for example, original prosecution, reissue and reexamination proceedings. For
purposes of this provision, however, prosecution does not include representing Fujitsu or any party
challenging the patent in connection with reexamination proceedings relating to the patent-in-suit.

STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

13

1
2

9.

SOURCE CODE
(a)

To the extent production of source code becomes necessary in this case, a

3

Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE

4

CODE” if it comprises or includes confidential, proprietary or trade secret source code.

5

(b)

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

6

CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –

7

ATTORNEYS’ EYES ONLY” information, including the Prosecution Bar set forth in

8

Paragraph 8, and may be disclosed only to the individuals to whom “HIGHLY

9

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth

10

in Paragraphs 7.3 and 7.4, with the exception of Designated House Counsel. Designated House

11

Counsel shall be entitled to access to derivative materials that include “HIGHLY

12

CONFIDENTIAL – SOURCE CODE” information such as infringement contentions, expert

13

reports, motions and exhibits, but shall not otherwise be allowed access to “HIGHLY

14

CONFIDENTIAL – SOURCE CODE.”

15

(c)

Any source code produced in discovery shall be made available for inspection in a

16

format through which it could be reasonably reviewed and searched during normal business hours or

17

other mutually agreeable times at an office of the Producing Party’s counsel or another mutually agreed

18

upon location. The source code shall be made available for inspection on a secured computer in a

19

secured room without Internet access or network access to other computers, and the Receiving

20

Party shall not copy, remove, or otherwise transfer any portion of the source code onto any

21

recordable media or recordable device. The Producing Party may visually monitor the activities

22

of the Receiving Party’s representatives during any source code review, but only to ensure that

23

there is no unauthorized recording, copying, or transmission of the source code.

24

(d)

The Receiving Party may request paper copies of limited portions of source code

25

that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or

26

other papers, or for deposition or trial, but shall not request paper copies for the purposes of

27

reviewing the source code other than electronically as set forth in paragraph (c) in the first

28

instance. The Producing Party shall provide all such source code in paper form including bates
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

14

1

numbers and the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing Party

2

may challenge the amount of source code requested in hard copy form pursuant to the dispute

3

resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the

4

“Challenging Party” and the Receiving Party is the “Designating Party” for purposes of dispute

5

resolution.

6

(e)

The Receiving Party shall maintain a record of any individual who has inspected

7

any portion of the source code in electronic or paper form. The Receiving Party shall maintain

8

all paper copies of any printed portions of the source code in a secured, locked area. The

9

Receiving Party shall not create any electronic or other images of the paper copies and shall not

10

convert any of the information contained in the paper copies into any electronic format. The

11

Receiving Party shall only make additional paper copies if such additional copies are (1)

12

necessary to prepare court filings, pleadings, or other papers (including a testifying expert’s

13

expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its

14

case. Any paper copies used during a deposition shall be retrieved by the Producing Party at the

15

end of each day and must not be given to or left with a court reporter or any other individual.

16

10.

17

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

18
compels disclosure of any information or items designated in this action as “CONFIDENTIAL,”
19
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL
20
– SOURCE CODE” that Party must:
21
(a)

promptly notify in writing the Designating Party. Such notification shall include

22
a copy of the subpoena or court order;
23
(b)

promptly notify in writing the party who caused the subpoena or order to issue in

24
the other litigation that some or all of the material covered by the subpoena or order is subject to
25
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;
26
and
27
28
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

15

(c)

1
2

cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.3
If the Designating Party timely seeks a protective order, the Party served with the

3
4

subpoena or court order shall not produce any information designated in this action as

5

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

6

“HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court from

7

which the subpoena or order issued, unless the Party has obtained the Designating Party’s

8

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

9

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

10

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

11

another court.

12

11.

13

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

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

14
this action and designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
15
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such
16
information produced by Non-Parties in connection with this litigation is protected by the
17
remedies and relief provided by this Order. Nothing in these provisions should be construed as
18
prohibiting a Non-Party from seeking additional protections.
19
(b) In the event that a Party is required, by a valid discovery request, to produce a Non20
Party’s confidential information in its possession, and the Party is subject to an agreement with
21
the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
22
1.

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

23
some or all of the information requested is subject to a confidentiality agreement with a Non24
Party;
25
26
3

27
28

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.

STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

16

2.

1

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

2

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

3

of the information requested; and

4

3.

5

make the information requested available for inspection by the Non-

Party.
(c)

6

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

7

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

8

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

9

Non-Party timely seeks a protective order, the Receiving Party shall not produce any

10

information in its possession or control that is subject to the confidentiality agreement with the

11

Non-Party before a determination by the court.4 Absent a court order to the contrary, the Non-

12

Party shall bear the burden and expense of seeking protection in this court of its Protected

13

Material.

14

12.

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

15
16

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

17

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

18

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

19

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were

20

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

21

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

22

13.

23

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently

24
produced material is subject to a claim of privilege or other protection, the obligations of the
25
26
4

27
28

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.

STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

17

1

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This

2

provision is not intended to modify whatever procedure may be established in an e-discovery

3

order that provides for production without prior privilege review. Pursuant to Federal Rule of

4

Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of

5

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

6

protection, the parties may incorporate their agreement in the stipulated protective order

7

submitted to the court.

8

14.

9
10
11

MISCELLANEOUS
14.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modification by the court in the future.
14.2

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

12

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

13

any information or item on any ground not addressed in this Stipulated Protective Order.

14

Similarly, no Party waives any right to object on any ground to use in evidence of any of the

15

material covered by this Protective Order.

16

14.3: Export Control. Disclosure of Protected Material shall be subject to all applicable

17

laws and regulations relating to the export of technical data contained in such Protected

18

Material, including the release of such technical data to foreign persons or nationals in the

19

United States or elsewhere. The Producing Party shall be responsible for identifying any such

20

controlled technical data, and the Receiving Party shall take measures necessary to ensure

21

compliance.

22

14.4

Filing Protected Material. Without written permission from the Designating

23

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

24

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

25

seal any Protected Material must comply with Civil Local Rule 79-5. Protected Material may

26

only be filed under seal pursuant to a court order authorizing the sealing of the specific

27

Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only

28

upon a request establishing that the Protected Material at issue is privileged, protectable as a
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

18

1

trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to

2

file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court,

3

then the Receiving Party may file the Protected Material in the public record pursuant to Civil

4

Local Rule 79-5(e) unless otherwise instructed by the court.

5

15.

6

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

7

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

8

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

9

compilations, summaries, and any other format reproducing or capturing any of the Protected

10

Material. Whether the Protected Material is returned or destroyed, the Receiving Party must

11

submit a written certification to the Producing Party (and, if not the same person or entity, to the

12

Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all

13

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party

14

has not retained any copies, abstracts, compilations, summaries or any other format reproducing

15

or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled

16

to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing

17

transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert reports,

18

attorney work product, and consultant and expert work product, even if such materials contain

19

Protected Material. Any such archival copies that contain or constitute Protected Material

20

remain subject to this Protective Order as set forth in Section 4 (DURATION).

21
22

DATE: May 13, 2011

23

COVINGTON & BURLING LLP
By: /s/ Robert D. Fram

24
Robert D. Fram ([e-mail])
Dale A. Rice ([e-mail])
COVINGTON & BURLING LLP
One Front Street
San Francisco, CA 94111-5356
Telephone:
415.591.6000
Facsimile:
415.591.6091

25
26
27
28
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

19

Philip A. Irwin ([e-mail])
COVINGTON & BURLING LLP
The New York Times Building
620 Eighth Avenue
New York, NY 10018-1405
Telephone:
212.841.1000
Facsimile:
212.841.1010
Gary M. Rubman ([e-mail])
COVINGTON & BURLING LLP
1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401
Telephone:
202.662.6000
Facsimile:
Fax: [phone]
Attorneys for Plaintiff and Counterclaim Defendant
FUJITSU LIMITED

1
2
3
4
5
6
7
8
9
10

DATE: May 13, 2011

WINSTON & STRAWN LLP

11

By: /s/ David Enzminger
David Enzminger

12

DAVID ENZMINGER
([e-mail] &
STRAWN LLP
333 S. Grand Avenue
Los Angeles, CA 90071-Telephone: [phone]
Facsimile:
[phone]
Attorneys for Defendants BELKIN
INTERNATIONAL INC. and BELKIN, INC.

13
14
15
16
17
DATE: May 13, 2011

REED SMITH LLP

18
By: /s/ William R. Overend
William R. Overend

19

John P. Bovich (CA Bar No. 150688)
E-mail: [e-mail]
William R. Overend (CA Bar No. 180209)
E-mail: [e-mail]
Luisa M. Bonachea (CA Bar No. 267664)
Email: [e-mail]
REED SMITH LLP
101 Second Street, Suite 1800
San Francisco, CA 94105-3659
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant NETGEAR, Inc.

20
21
22
23
24
25
26
27
28
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

20

1

DATE: May 13, 2011

By: /s/ Duncan Palmatier

2
Duncan Palmatier (CA Bar No. 116692)
E-mail: [e-mail]
S.J. Christine Yang (CA Bar No. 102048)
E-mail: [e-mail]
Victoria Der-Lung Hao (admitted pro hac vice)
E-mail: [e-mail]
The Law Office of S.J. Christine Yang
17220 Newhope Street, Suites 101 & 102
Fountain Valley, California 92708
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants D-Link Systems, Inc. and
ZyXEL Communications, Inc.

3
4
5
6
7
8
9
10
11

PURSUANT TO STIPULATION, IT IS SO ORDERED.

12
13

May 18, 2011
DATE:_____________________

By:
XXXXXXXXXX
The Honorable Lucy H. Koh Paul S. Grewal
XXXXXXXXXXXXX
United States District Court Judge

14
15

Magistrate Judge

16
17
18
19
20
21
22
23
24
25
26
27
28
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

21

1

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2
3

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

4

[print or type full address], declare under penalty of perjury that I have read in its entirety and

5

understand the Stipulated Protective Order that was issued by the United States District Court

6

for the Northern District of California in the case of Fujitsu Limited v. Belkin International, Inc.,

7

et al., Case No. 10-cv-03972-LHK (PSG). I agree to comply with and to be bound by all the

8

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

9

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

10

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

11

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

12

provisions of the Order.

13

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

14

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

15

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

16

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

17

_______________________________________ [print or type full address and telephone

18

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

19

proceedings related to enforcement of this Stipulated Protective Order.

20

Date: ____________

21

City and State/Country where sworn and signed: ________________________________

22
Printed name: ______________________________
23
Signature: _________________________________

24
25
26
27
28
STIPULATED PROTECTIVE ORDER
Case No. 10-cv-03972-LHK (PSG)

1