Nazomi Communications Inc v. Nokia Corporation et al

Filing 355

PROTECTIVE ORDER, re-entered pursuant to 345 Stipulation.(rmwlc1, COURT STAFF) (Filed on 6/1/2012)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NAZOMI COMMUNICATIONS, INC.
V.

NO. 5:10-cv-04686 RMW (HRL)

NOKIA CORP., et al.
PROTECTIVE ORDER
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court hereby enters
the following Protective Order:
This Protective Order is issued to facilitate document disclosure and production under the
Local Rules of this Court and the Federal Rules of Civil Procedure. Unless modified pursuant to
the terms contained in this Order, this Order shall remain in effect through the conclusion of this
litigation.
In support of this order, the Court finds that:
1.

Documents or information containing confidential proprietary and business information
and/or trade secrets (“Confidential Information”) that bear significantly on the parties'
claims or defenses are likely to be disclosed or produced during the course of discovery
in this litigation;

2.

The parties to this litigation may assert that public dissemination and disclosure of
Confidential Information could injure or damage the party disclosing or producing the
Confidential Information and could place that party at a competitive disadvantage; and

3.

To protect the respective interests of the parties and to facilitate the progress of disclosure
and discovery in this case, the following Order should issue:

IT IS THEREFORE ORDERED THAT:
1.

Documents or discovery responses containing Confidential Information disclosed or
produced by any party in this litigation are referred to as “Protected Documents.” Except
as otherwise indicated below, all documents or discovery responses designated by the
producing party as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL —
ATTORNEYS' EYES ONLY” and which are disclosed or produced to the attorney for the
other parties to this litigation are Protected Documents and are entitled to confidential
treatment as described below. Documents may also be designated “HIGHLY
CONFIDENTIAL — SOURCE CODE,” subject to the provisions stated herein.

2.

Protected Documents shall not include (a) advertising materials, (b) materials that on
their face show that they have been published to the general public, or (c) documents that
have been submitted to any governmental entity without request for confidential
treatment. By way of non-limiting example, Protected Documents in one or more of the
following categories may qualify for the “HIGHLY CONFIDENTIAL — ATTORNEYS'
EYES ONLY” designation: (i) non-public technical information, including schematic
diagrams, manufacturing and engineering drawings, engineering notebooks,
specifications, research notes and materials, technical reference materials, and other nonpublic technical descriptions and/or depictions of the relevant technology; (ii) non-public
damage-related information (e.g., the number of products sold, total dollar value of sales
products, and profit margins); (iii) non public financial information; (iv) customer lists;
(v) business and/or marketing plans; (vi) price lists and/or pricing information; and (vii)
information obtained from a non-party pursuant to a current non-disclosure NonDisclosure Agreement (“NDA”).

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3.

At any time after the delivery of Protected Documents, counsel for the party or parties
receiving the Protected Documents may challenge the confidential designation of all or
any portion thereof by providing written notice thereof to counsel for the party disclosing
or producing the Protected Documents. If the parties are unable to agree as to whether
the confidential designation of discovery material is appropriate, the party or parties
receiving the Protected Documents shall certify to the Court that the parties cannot reach
an agreement as to the confidential nature of all or a portion of the Protected Documents.
If, after conferring, the parties cannot reach agreement concerning the matter within ten
(10) business days after the delivery and receipt of the notice, then the party requesting
the de-designation of particular items may file and serve a motion for a further order of
this Court directing that the designation shall be so removed. On any such motion, the
burden of proof shall lie with the producing party to establish that the information is, in
fact, properly designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL —
ATTORNEYS' EYES Only information and the receiving party shall establish that the
information is an appropriate target of discovery. No party shall be obligated to
challenge the propriety of any designation, and failure to do so shall not preclude a
subsequent challenge to the propriety of such designation.

4.

All Protected Documents are entitled to confidential treatment pursuant to the terms of
this Order until and unless the parties formally agree in writing to the contrary or a
contrary determination is made by the Court as to whether all or a portion of a Protected
Document is entitled to confidential treatment. Protected Documents and any information
contained therein shall not be used or shown, disseminated, copied, or in any way
communicated to anyone for any purpose whatsoever, except as provided for below.

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5.

Subject to the limitations set forth in this Order, Protected Documents and any
information contained therein shall be disclosed only to the following persons (“Qualified
Persons”):
A.

Counsel of record in this action and other disclosed outside counsel for the party
or parties receiving Protected Documents or any information contained therein;

B.

Employees of such counsel (excluding experts and investigators) and outside
vendors used to process documents assigned to and necessary to assist such
counsel in the preparation and trial of this action, provided such outside vendors
agree to maintain the confidentiality of documents pursuant to this Protective
Order;

C.

The Court;

D.

Experts or consultants that are disclosed and qualified pursuant to the terms of
paragraph 19 below; and

E.

Two (2) in-house counsel for each party, and any employees actually assisting
outside counsel or such in-house counsel in preparation of this case, provided that
such persons sign the Agreement attached hereto as Exhibit A.

Except that, Protected Documents designated “HIGHLY CONFIDENTIAL — ATTORNEYS'
EYES ONLY” shall not be disclosed to any person allowed access under paragraph 5.E. Counsel
for a party may give advice and opinions to his or her client regarding this litigation based on his
or her evaluation of designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL —
ATTORNEYS' EYES ONLY” information received by the party — provided that such rendering
of advice and opinions shall not reveal the content of such Protected Documents and any
information contained therein except by prior written agreement with counsel for the producing

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party. Counsel receiving “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL —
ATTORNEYS' EYES ONLY” Protected Documents may not use such information to provide
advice or opinions to facilitate prosecution of any patents, to otherwise attempt to secure patent
claims (e.g., reissue, reexamination, and certificates of correction), or for any purpose not related
to this case. Protected Documents and any information contained therein shall be used solely for
the prosecution of this litigation.
6.

Protected Documents designated “HIGHLY CONFIDENTIAL — SOURCE CODE”
shall be provided with the following further protections:
A.

HIGHLY CONFIDENTIAL — SOURCE CODE includes human-readable
programming language text that defines software, firmware, or electronic
hardware descriptions (hereinafter referred to as “source code”). Text files
containing source code shall hereinafter be referred to as “source code files.”
Source code files include, but are not limited to files containing source in “C”,
“C++”, assembler, VHDL, Verilog, and digital signal processor (DSP)
programming languages. Source code files further include “.include files,”
“make” files, link files, and other human-readable text files used in the generation
and/or building of software directly executed on a microprocessor, microcontroller, or DSP.

B.

Treatment of Source Code. To the extent that either party wishes to obtain access
to source code, the following procedures shall apply:
i.

The producing party shall make all relevant and properly requested source
code available for inspection on a stand-alone, non-networked personal
computer running a reasonably current version of the Microsoft Windows

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operating system (“Source Code Computer”). Should it be necessary, other
mutually agreed upon operating systems, such as Linux, may also be made
available by the producing party.
ii.

The producing party shall make the source code available electronically
and in text searchable form in outside counsel for the producing party’s
offices in either Washington DC or the Central District of California.

iii.

In order to verify that its source code has not later been altered, the
producing party may benchmark the materials before they are provided, but
shall not install any keystroke or other monitoring software on the Source
Code Computer.

iv.

The receiving party may use appropriate tool software on the Source Code
Computer, which shall be installed by the producing party, including text
editors and multi-file text search tools such as “grep.” Specific tools may
include (but not be limited to): Visual Slick Edit, Source-Navigator,
PowerGrep, and ExamDiff Pro, or similar programs. Should it be
necessary, other mutually agreed upon tools may be used. Licensed copies
of agreed upon tool software shall be downloaded and installed on the
Source Code Computer by the producing party, and paid for by the
receiving party.

v.

The Source Code Computer shall be made available from 9 am to 7 pm
local time, Monday through Friday (excluding holidays), and other days
and/or times, including weekends, upon reasonable request until the close

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of discovery in this action. Access on weekends or after hours shall be
permitted only on three days advanced written notice.
vi.

The source code is to be treated as HIGHLY CONFIDENTIAL —
SOURCE CODE. In addition, the source code is to be treated as
CONFIDENTIAL — ATTORNEYS' EYES ONLY, and the receiving
party may not disclose the source code to anyone who has not undertaken
to abide by the Protective Order. No employee of the receiving party may
access or obtain the source code. In no case shall any information
designated as HIGHLY CONFIDENTIAL — SOURCE CODE by a
Defendant be provided to any other Defendant or Defendant's counsel by
any party or counsel absent explicit agreement from the Defendant
designating the information.

vii.

No more than five (5) individuals who qualify under the paragraph 5A or
5D, above, for the receiving party, may have access to the Source Code
Computer. In addition, no more than ten (10) additional attorneys and/or
experts who qualify under paragraph 5A or 5D, above, for the receiving
party, may have access to printed copies of any portion of the producing
party's source code. Each time counsel for the receiving party requests a
review of source code on the Source Code Computer, it must give at least
one business day (and at least 24 hours) notice to the counsel for the
producing party that it will be sending individual(s) authorized to review
the source code made available on the Source Code Computer. The
receiving party shall identify all individuals who will be given access to

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the source code at least fourteen days prior to any inspection, after which
time the producing party may object to providing source code access to
any persons so identified.
viii.

Proper identification of all authorized persons shall be provided prior to
any access to the secure facility or the Source Code Computer. Proper
identification is hereby defined as a photo identification card sanctioned by
the government of a U.S. state, by the United States federal government, or
by the nation state of the authorized person's current citizenship. Access to
the secure facility or the Source Code Computer may be denied, at the
discretion of producing party, to any individual who fails to provide proper
identification.

The Source Code Computer shall be equipped to print copies of the source code
on watermarked pre-Bates numbered paper, which shall be provided by the
producing party. Counsel for the producing party will keep the originals of
these printed documents, and copies shall be made for counsel for the
receiving party on watermarked paper either at the time they are requested
(if less than 100 pages) or within 48 hours (if more than 100 pages).
Counsel for the receiving party may request up to 10 copies of printed
source code. No more than 10% or 500 pages of the total source code for
any software release may be in printed form at any one time, and all
printed source code shall be logged by the receiving party as noted in
paragraph xv below. The supplier may object to any request to deliver
copies of printed source code as excessive and/or not done for a permitted

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purpose. If such objection cannot be resolved by mutual agreement within
five (5) business days it shall be submitted to the Court for resolution. In
the event the request is for 40 continuous pages or less of source code, the
supplier must deliver those pages to counsel for the receiving party within
two (2) business days of the printing notwithstanding any such objection.
In the event the request is for more than 40 continuous pages or represents
10% or more of a specific software release, the print out shall be presumed
excessive and not done for a permitted purpose. If, after meeting and
conferring, the supplier and the receiving party cannot resolve the
objection, the supplier shall be entitled to seek the Court’s resolution of
whether the printed source code in question is narrowly tailored and was
printed for a permitted purpose. The burden shall be on the receiving party
to demonstrate that such printed portion of the source code was no more
than is reasonably necessary for a permitted purpose and not merely
printed for the purpose of review and analysis elsewhere. In the event the
request is for more than 40 continuous pages, and the parties are unable to
resolve the supplier’s objection via meeting and conferring, then at the
supplier’s discretion, no portion of the printed source code in question
need by delivered to counsel for the receiving party until the issue is
resolved by the Court. In the event the objection to print 40 continuous
pages or less is sustained by the Court, the pages that were subject to the
objection shall be returned to supplier within two (2) business days. If
necessary, the receiving party may request, within 24-hours of day needed,

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to print additional pages in excess of the 500 pages of total source code for
a software release, which request the supplier shall not unreasonably deny.
i.

In the event the request is for more than 40 continuous pages or
represents 10% or more of a specific software release, the print out shall
be presumed excessive and not done for a permitted purpose. The same
guidelines set forth previously in this paragraph for the meet and confer
process and any necessary involvement by the Court to resolve disputes
relating to printed portions of the code shall apply. Any request for
additional pages in excess of the 500 pages of total source code for a
software release will be provided in no more than 500-page increments
unless otherwise agreed to by the parties. One page of printed Source
Code shall mean one column of Source Code printed on one single-sided
sheet of paper measuring no more than 8 and 1/2 inches by 11 inches. In
addition to other reasonable steps to maintain the security and
confidentiality of the producing party's source code, printed copies of the
source code maintained by the receiving party must be kept in a locked
storage container when not in use. No additional electronic copies of the
source code shall be provided.

ii.

Other than in connection with pleadings filed under seal and depositions
designated HIGHLY CONFIDENTIAL — SOURCE CODE, no
subsequent copies shall be made of the printed copies provided by the
producing party to the requesting party. Hard copies of the source code

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also may not be converted into an electronic document, and may not be
scanned using optical character recognition (“OCR”) technology;
iii.

No outside electronic devices, including but not limited to laptops, floppy
drives, zip drives, or other hardware shall be permitted in the secure room.
Nor shall any cellular telephones, personal digital assistants (PDAs),
Blackberries, cameras, voice recorders, Dictaphones, telephone jacks or
other devices be permitted inside the secure room. Nor shall any nonelectronic devices capable of similar functionality be permitted in the
secure room.

iv.

The receiving party's counsel shall keep a log that records the identity of
each individual to whom each hard copy of the source code is provided
and when it was first provided to that person, and within thirty days after
the issuance of a final, non-appealable decision resolving all issues in the
case, the receiving party must serve upon the producing party the log and
either return the source code to the producing party, or certify the
destruction of, all paper copies of the producing party's source code. In
addition, all persons to whom the paper copies of the source code were
provided must certify in writing that all copies of the source code were
returned to the counsel who provided them the information or destroyed
and that they will make no use of the source code or of any knowledge
gained from the source code in any future endeavor.

v.

Any expert consultant retained on behalf of receiving party who is to be
given access to producing party's produced source code (whether in

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electronic form or otherwise) must agree in writing not to perform
software development work directly or indirectly intended for commercial
purposes relating to Java Hardware Acceleration technology for a period
of one year after the issuance of a final, non-appealable decision resolving
all issues in the case. This shall not preclude such expert consultants from
consulting in future litigation, so long as such consulting does not involve
software development work directly or indirectly intended for commercial
purposes relating to Java Hardware Acceleration technology.
vi.

Access to and review of the source code shall be strictly for the purpose of
investigating the claims and defenses at issue in the above-styled case. No
person shall review or analyze any source code for purposes unrelated to
this case, nor may any person use any knowledge gained as a result of
reviewing source code in this case in any other pending or future dispute,
proceeding, or litigation.

7.

The term “copy” as used herein means any photographic, mechanical or computerized
copy or reproduction of any document or thing, or any verbatim transcript, in whole or in
part, of such document or thing.

8.

To the extent that Protected Documents or information contained therein are used in
depositions, at hearings, or at trial, such documents or information shall remain subject to
the provisions of this Order, along with the transcript pages of the deposition testimony
and/or trial testimony referring to the Protected Documents or information contained
therein.

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9.

Any court reporter or transcriber who reports or transcribes testimony in this action shall
agree that all Confidential Information designated as such under this Order shall remain
confidential and shall not be disclosed by them, except pursuant to the terms of this
Order, and that any notes or transcriptions of such testimony (and any accompanying
exhibits) will be retained by the reporter or delivered to counsel of record.

10.

Inadvertent or unintentional production of documents or information containing
Confidential Information which are not designated “CONFIDENTIAL,” “HIGHLY
CONFIDENTIAL — ATTORNEYS' EYES ONLY,” or “HIGHLY CONFIDENTIAL —
SOURCE CODE” shall not be deemed a waiver in whole or in part of a claim for
confidential treatment. Upon request by the producing party, the receiving party shall
immediately destroy or return all copies of such inadvertently produced document(s).
The producing party shall have to opportunity to reproduce or designate the returned
documents with any of the aforementioned CONFIDENTIAL designations. The receipt of
documents or information will not operate as an admission by the receiving party that any
particular “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL — ATTORNEYS' EYES
ONLY,” or “HIGHLY CONFIDENTIAL — SOURCE CODE” contains or reflects trade
secrets or any other type of confidential or proprietary information. Nothing herein shall
prevent the receiving party from challenging the propriety of the designation of the
documents by submitting a written challenge to the Court.

11.

Inspection or production of documents (including physical objects) shall not constitute a
waiver of the attorney-client privilege or work product immunity or any other applicable
privilege or immunity from discovery if, as soon as reasonably possible after the
producing party becomes aware of any inadvertent or unintentional disclosure, the

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producing party designates any such documents as within the attorney-client privilege or
work product immunity or any other applicable privilege or immunity and requests return
of such documents to the producing party. Upon request by the producing party, the
receiving party shall immediately destroy or return all copies of such inadvertently
produced document(s). Nothing herein shall prevent the receiving party from challenging
the propriety of the attorney-client privilege or work product immunity or other
applicable privilege or immunity designation by submitting a written challenge to the
Court.
12.

Nothing herein shall alter or change in any way the discovery provisions of the Federal
Rules of Civil Procedure. Identification of any individual pursuant to this Protective
Order does not make that individual available for deposition or any other form of
discovery outside of the restrictions and procedures of the Federal Rules of Civil
Procedure or applicable local rules.

13.

The party or parties receiving Protected Documents shall not under any circumstances
sell, offer for sale, advertise, or publicize Protected Documents or any information
contained therein.

14.

After termination of this litigation, the provisions of this Order shall continue to be
binding, except with respect to those documents and information that become a matter of
public record. This Court retains and shall have continuing jurisdiction over the parties
and recipients of the Protected Documents for enforcement of the provisions of this Order
following termination of this litigation.

15.

Upon termination of this action as to any one party by dismissal, judgment, or settlement,
counsel for the party or parties receiving Protected Documents shall destroy or return the

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Protected Documents to the counsel for party or parties disclosing or producing the
Protected Documents. The party or parties receiving the Protected Documents may
continue to retain and rely upon the Protected Documents and information therein to the
extent that one or more of its experts has previously relied on the Protected Documents
and information therein in forming their opinion, and that opinion and underlying
documents continue to be relevant to the litigation or subsequent appeal. In addition, the
party or parties receiving the Protected Documents may keep pleadings, disclosures
required under the Patent Local Rules, and their attorney work product which refer or
relate to any Protected Documents or information contained therein..
16.

This Order shall be binding upon the parties and their attorneys, successors, executors,
personal representatives, administrators, heirs, legal representatives, assigns, subsidiaries,
divisions, employees, agents, independent contractors, or other persons or organizations
over which they have control.

17.

No individual who, on behalf of the Plaintiff, has had access to information designated as
HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY or “HIGHLY
CONFIDENTIAL — SOURCE CODE” by a Defendant may prosecute, supervise, or
assist in the prosecution of any patent application on behalf of the Plaintiff involving the
particular technology or information disclosed in the Protected Documents or “HIGHLY
CONFIDENTIAL — SOURCE CODE for a period ending one (1) year after the final
resolution of this litigation. For purposes of this paragraph, prohibited prosecution shall
include, without limitation: invention identification, invention evaluation, the decision
whether to file a patent application for an invention, preparation of and/or amendments to
original, continuation, divisional, continuation-in-part, request for continued examination,

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reexamination, reissue, substitute, renewal or convention patent applications, claim
drafting, drafting of any document to be filed with the United States Patents and
Trademark Office or any foreign patent office, or consultation on any of the above matters
with others performing these activities. Notwithstanding the foregoing, no individual
subject to prohibited prosecution under this paragraph shall be precluded from
performing, supervising, or consulting on routine, patent-related, administrative tasks on
behalf of the Plaintiff (e.g., drafting and recording assignment documents, submission of
maintenance fees, and drafting or filing requests for certificate(s) of correction).
18.

This protective order shall afford all third parties who produce any Protected Documents
the same protections afforded to the parties to this action. Specifically, third parties shall
be entitled to mark any documents CONFIDENTIAL, HIGHLY CONFIDENTIAL —
ATTORNEYS' EYES ONLY, or HIGHLY CONFIDENTIAL — SOURCE CODE and
shall also be able to designate any deposition testimony CONFIDENTIAL, HIGHLY
CONFIDENTIAL — ATTORNEYS' EYES ONLY, or HIGHLY CONFIDENTIAL —
SOURCE CODE. The parties to this action will treat such marked information per the
terms of the protective order. To the extent applicable, the remaining provisions of this
protective order shall apply to third parties, including the designation HIGHLY
CONFIDENTIAL — SOURCE CODE.

19.

Before counsel for a party receiving Protected Documents may disclose any such material
designated CONFIDENTIAL, HIGHLY CONFIDENTIAL — ATTORNEYS' EYES
ONLY, and/or HIGHLY CONFIDENTIAL — SOURCE CODE to a proposed expert or
consultant:

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(i)

Counsel shall provide a copy of this Protective Order to such person, who shall
sign the Agreement attached hereto as Exhibit A; and

(ii)

At least ten (10) business days before the first such disclosure, counsel for the
receiving party shall notify the producing party in writing of the intent to disclose
CONFIDENTIAL, HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY,
and/or HIGHLY CONFIDENTIAL — SOURCE CODE discovery material to
such person. The notice shall include a copy of the agreement signed by the
person and shall identify his or her title, job responsibilities and affiliation(s) with
the receiving party. If the person is a consultant or testimonial expert, the notice
shall also include a copy of such person's most recent curriculum vitae, which
shall include an identification of all such person's past and present employment
and/or consulting relationships. If the producing party objects to the disclosure of
CONFIDENTIAL, HIGHLY CONFIDENTIAL — ATTORNEYS' EYES ONLY,
and/or HIGHLY CONFIDENTIAL — SOURCE CODE material to such person,
the producing party shall notify counsel for the receiving party in writing of the
producing party's objection(s) to such disclosure prior to the date on which the
disclosure is intended to be made. Any objection must be made for good cause,
stating with particularity the reasons for the objection. Should the receiving party
disagree with the basis for the objection(s), the parties must first attempt to resolve
the objection(s) informally. If the informal efforts do not resolve the dispute
within five (5) business days, the receiving party may file a motion requesting that
the objection(s) be quashed after that five (5) day period has passed. The
producing party shall have the burden of proof by a preponderance of the evidence

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on the issue of the sufficiency of the objection(s). Pending a ruling by the Court
upon any such objection(s), the discovery material shall not be disclosed to the
person objected to by the producing party.
20.

In no case shall any information designated as CONFIDENTIAL INFORMATION by a
Defendant be provided to any other Defendant or Defendant's in house counsel by any
party or counsel absent explicit agreement from the Defendant designating the information.
To the extent that information designated as CONFIDENTIAL INFORMATION by one
Defendant is provided to any other Defendant's outside counsel by any party or counsel,
the originally producing Defendant shall be given reasonable notice of such disclosure.

So ORDERED and SIGNED this 1st day of June, 2012.

RONALD M. WHYTE
UNITED STATES DISTRICT JUDGE

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EXHIBIT A
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
NAZOMI COMMUNICATIONS, INC.
V.

NO. 5:10-cv-04686 RMW (HRL)

NOKIA CORP., et al.
AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
I, _______________________________, hereby acknowledge that I am about to receive
Protected Documents and information as defined in the Protective Order agreed to by the parties
and so ordered by the Court in this case.
I certify my understanding that the Protected Documents and information are being
provided to me pursuant to the terms and restrictions of the Protective Order, and that I have
been given a copy of and have read and understood my obligations under that Protective Order. I
hereby agree to be bound by the terms of the Protective Order. I clearly understand that the
Protected Documents and information and my copies or notes relating thereto may only be
disclosed to or discussed with those persons permitted by the Protective Order to receive such
material.
I will return on request all materials containing Protected Documents and information,
copies thereof, and notes that I have prepared relating thereto, to outside counsel for the party by
whom or on whose behalf I am retained.

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER - PAGE 1

I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
Protective Order and waive any and all objections to jurisdiction and venue.
I make the above statements under penalty of perjury.

Printed Name:
Company Name/Address/Phone:

AGREEMENT TO BE BOUND BY PROTECTIVE ORDER - PAGE 2