Finisar Corporation v. Agilestar.com, Inc. et al

Filing 38

STIPULATED PROTECTIVE ORDER re 35 (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on 5/10/2011. (hrllc2, COURT STAFF) (Filed on 5/10/2011)

*E-FILED 05-10-2011*
1
2
3
4
5

Sterling A. Brennan (CA State Bar No. 126019)
E-mail: [e-mail]
WORKMAN | NYDEGGER A PROFESSIONAL
CORPORATION
20 Pacifica, Suite 1130
Irvine, California 92618
Telephone:
[phone]
Facsimile:
[phone]

11

Charles L. Roberts(admitted Pro Hac Vice)
[e-mail]
C.J. Veverka (admitted Pro Hac Vice)
[e-mail]
H. Craig Hall, Jr. (admitted Pro Hac Vice)
[e-mail]
WORKMAN | NYDEGGER A PROFESSIONAL
CORPORATION
60 East South Temple, Suite 1000
Salt Lake City, Utah 84111
Telephone: [phone]
Facsimile: [phone]

12

Attorneys for Finisar Corporation

14

Julie S. Turner (State Bar No. 191146)
[e-mail]
Karen I. Boyd (State Bar No. 189808)
[e-mail]
TURNER BOYD LLP
2570 W. El Camino Real, Suite 380
Mountain View, California 94040

6
7
8
9
10

14
15
16
17
18
19

Telephone: [phone]
Facsimile: [phone]
Attorneys for Defendants Agilestar.com, Inc. and
MemoryDealers.com, Inc.

20

UNITED STATES DISTRICT COURT

21

NORTHERN DISTRICT OF CALIFORNIA

22
23
24
25
26
27
28

FINISAR CORPORATION, a Delaware
corporation,
v.

Plaintiff,

AGILESTAR.COM, INC., a California
corporation, and MEMORYDEALERS. COM,
INC., a California corporation
Defendants.

Case No. CV 10-04990 JW
STIPULATED=========== PROTECTIVE
[PROPOSED]
ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION AND/OR
TRADE SECRETS
MODIFIED BY THE COURT
[Re: Docket No. 35]

1

1.

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

2
3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

the standards that will be applied when a party seeks permission from the court to file material

13

under seal.

14
15
16
17

2.

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

18

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

19

Rule of Civil Procedure 26(c).

20
21
22
23
24

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

25

items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or

26

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

27

SOURCE CODE.”

28
-2-

2.6

1

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

2

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

3

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

4

or responses to discovery in this matter.
2.7

5

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

6

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

7

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

8

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

9

Party or of a Party’s competitor.

10

2.8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”

11

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

12

which to another Party or Non-Party would create a substantial risk of serious harm that could not

13

be avoided by less restrictive means.
2.9

14

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:

15

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

16

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

17

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

18

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

19

serious harm that could not be avoided by less restrictive means.
2.10

20
21

House Counsel does not include Outside Counsel of Record or any other outside counsel.
2.11

22
23

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

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

other legal entity not named as a Party to this action.
2.12

24

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

25

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

26

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

27

that party.

28
-3-

2.13

1

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

2

employees, consultants, retained experts, and Outside Counsel of Record (and their support

3

staffs).

4

2.14

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

5

Discovery Material in this action.

6

2.15

Professional Vendors: persons or entities that provide litigation support

7

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

8

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

9

subcontractors.
2.16

10

Protected Material: any Disclosure or Discovery Material that is

11

designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

12

ONLY,” or as “HIGHLY CONFIDENTIAL – SOURCE CODE.”
2.17

13
14
15
16

Receiving Party: a Party that receives Disclosure or Discovery Material

from a Producing Party.
3.

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

obtained the information lawfully and under no obligation of confidentiality to the Designating

27

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

28
-4-

1
2

4.

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

3

imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing

4

or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)

5

dismissal of all claims and defenses in this action, with or without prejudice; and (2) final

6

judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or

7

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

8

extension of time pursuant to applicable law. For a period of six months after the final disposition
of this litigation, this court will retain jurisdiction to enforce the terms of this order.
5.
DESIGNATING PROTECTED MATERIAL

9
10

5.1

Exercise of Restraint and Care in Designating Material for Protection.

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

withdrawing the mistaken designation.

25
26

5.2

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

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

27
28
-5-

1

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

2

designated before the material is disclosed or produced.

3

Designation in conformity with this Order requires:

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

being asserted.

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

SOURCE CODE) to each page that contains Protected Material. If only a portion or portions of

22

the material on a page qualifies for protection, the Producing Party also must clearly identify the

23

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

24

each portion, the level of protection being asserted.

25

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

26

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

27

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

28
-6-

1

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

2

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

3

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

4

a right to have up to 21 days to identify the specific portions of the testimony as to which

5

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

6

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

7

by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may

8

specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the

9

entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

10
11

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

12

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

13

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

14

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

15

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

16

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

actually designated.

26
27

(c) for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the exterior of the

28
-7-

1

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

2

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

3

CONFIDENTIAL – SOURCE CODE.” If only a portion or portions of the information or item

4

warrant protection, the Producing Party, to the extent practicable, shall identify the protected

5

portion(s) and specify the level of protection being asserted.
5.3

6

Inadvertent Failures to Designate. If timely corrected, an inadvertent

7

failure to designate qualified information or items does not, standing alone, waive the Designating

8

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

9

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

10
11
12

treated in accordance with the provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a

13

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

14

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

15

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

16

right to challenge a confidentiality designation by electing not to mount a challenge promptly

17

after the original designation is disclosed.

18

6.2

Meet and Confer. The Challenging Party shall initiate the dispute

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28
-8-

1

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

2

stage of the challenge process only if it has engaged in this meet and confer process first or

3

establishes that the Designating Party is unwilling to participate in the meet and confer process in

4

a timely manner.
6.3

5

Judicial Intervention. If the Parties cannot resolve a challenge without

6

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

7

under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21

8

days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and

9

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

10

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

11

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

12

make such a motion including the required declaration within 21 days (or 14 days, if applicable)

13

shall automatically waive the confidentiality designation for each challenged designation. In

14

addition, the Challenging Party may file a motion challenging a confidentiality designation at any

15

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

16

transcript or any portions thereof. Any motion brought pursuant to this provision must be

17

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

18

and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the

19
20

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

21

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

22

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

23

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

24

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

25

designation until the court rules on the challenge.

26

7.

ACCESS TO AND USE OF PROTECTED MATERIAL

27
28
-9-

7.1

1

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

2

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

3

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

4

disclosed only to the categories of persons and under the conditions described in this Order.

5

When the litigation has been terminated, a Receiving Party must comply with the provisions of

6

section 14 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a

7
8

location and in a secure manner that ensures that access is limited to the persons authorized under

9

this Order.

10

7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise

11

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

12

disclose any information or item designated “CONFIDENTIAL” only to:

13

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

14

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

15

information for this litigation;

16

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

17

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have

18

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

19

(c) Experts (as defined in this Order) of the Receiving Party, as well as employees

20

of said Experts, to whom disclosure is reasonably necessary for this litigation and who have

21

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

22

(d) the court and its personnel;

23

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

24

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

25

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

26
27

(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”

28
-10-

1

(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of

2

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

3

separately bound by the court reporter and may not be disclosed to anyone except as permitted

4

under this Stipulated Protective Order.

5
6
7

(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

8

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

9

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

10
11

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as

12

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

13

information for this litigation;

14

(b) Designated House Counsel of the Receiving Party (1) who has no involvement

15

in competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation,

16

(3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to

17

whom the procedures set forth in paragraph 7.5(a)(1), below, have been followed;

18

(c) Experts of the Receiving Party, as well as employees of said Experts, (1) to

19

whom disclosure is reasonably necessary for this litigation, (2) who have signed the

20

“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures

21

set forth in paragraph 7.5(a)(2) below, have been followed;

22

(d) the court and its personnel;

23

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

24

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

25

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

26
27

(f) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.

28
-11-

1

7.4

Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or

2

Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a

3

Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –

4

SOURCE CODE” only to:

5

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

6

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

7

information for this litigation;

8
9

(b) Experts of the Receiving Party, as well as employees of said Experts, (1) to
whom disclosure is reasonably necessary for this litigation, (2) who have signed the

10

“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures

11

set forth in paragraph 7.5(a)(3), below, have been followed;

12

(c) the court and its personnel;

13

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

14

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

15

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

16
17
18

(e) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
7.5

Procedures for Approving or Objecting to Disclosure of “HIGHLY

19

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

20

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

21

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

22

Designating Party, a Party that seeks to disclose to Designated House Counsel any information or

23

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

24

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

25

sets forth the full name of the Designated House Counsel and the city and state of his or her

26

residence, and (2) describes the Designated House Counsel’s current and reasonably foreseeable

27
28
-12-

1

future primary job duties and responsibilities in sufficient detail to determine if House Counsel is

2

involved, or may become involved, in any competitive decision-making.
(a)(2) “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information

3
4

or items may be disclosed to an Expert (as defined in this Order) without prior authorization of

5

the Designating Party, as long as the Expert is not a current officer, director, or employee of a

6

competitor of a Party or anticipated to become one.
(a)(3) Unless otherwise ordered by the court or agreed to in writing by the

7
8

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

9

information or item that has been designated “HIGHLY CONFIDENTIAL – SOURCE CODE”

10

pursuant to paragraph 7.3(c) first must make a written request to the Designating Party that (1)

11

identifies the general categories of “HIGHLY CONFIDENTIAL – SOURCE CODE” information

12

that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of

13

the Expert and the city and state of his or her primary residence, (3) attaches a copy of the

14

Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person

15

or entity from whom the Expert has received compensation or funding for work in his or her areas

16

of expertise or to whom the expert has provided professional services, including in connection

17

with a litigation, at any time during the preceding five years,1 and (6) identifies (by name and

18

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

19

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

20

deposition or trial, during the preceding five years.

21

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

22

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

23

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

24

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

25

detail the grounds on which it is based.

26

1

27
28

If the Expert believes any of this information is subject to a confidentiality obligation to a thirdparty, 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.
-13-

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

1
2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

setting forth the reasons advanced by the Designating Party for its refusal to approve the

13

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

14
15

Counsel or the Expert shall bear the burden of proving that the risk of harm that the disclosure

16

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

17

the Protected Material to its Designated House Counsel or Expert.

18

8.

SOURCE CODE
(a)

19

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

20

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

21

if it comprises or includes confidential, proprietary or trade secret source code.
(b)

22

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

23

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

24

ATTORNEYS’ EYES ONLY” information, and may be disclosed only to the individuals to

25

whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be

26

disclosed, as set forth in Paragraphs 7.3, 7.4 and 7.5, with the exception of Designated House

27

Counsel.

28
-14-

(c)

1

Any source code produced in discovery shall be made available for

2

inspection, in a format allowing it to be reasonably reviewed and searched, during normal

3

business hours or at other mutually agreeable times, at an office of the Producing Party’s counsel

4

or another mutually agreed upon location. The source code shall be made available for inspection

5

on a secured computer in a secured room without Internet access or network access to other

6

computers, and the Receiving Party shall not copy, remove, or otherwise transfer any portion of

7

the source code onto any recordable media or recordable device. The Producing Party may

8

visually monitor the activities of the Receiving Party’s representatives during any source code

9

review, but only to ensure that there is no unauthorized recording, copying, or transmission of the

10

source code.
(d)

11

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

12

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

13

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

14

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

15

instance. The Producing Party shall provide all such source code in paper form including bates

16

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

17

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

18

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

19

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

20

resolution.

21

(e)

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

22

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

23

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

24

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

25

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

26

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

27

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

28
-15-

1

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

2

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

3

end of each day and must not be given to or left with a court reporter or any other individual.
9.

4
5

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

OTHER LITIGATION

6

If a Party is served with a subpoena or a court order issued in other litigation that

7

compels disclosure of any information or items designated in this action as “CONFIDENTIAL”

8

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

9

CONFIDENTIAL – SOURCE CODE” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall

10
11

include a copy of the subpoena or court order;

12

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

13

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

14

to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;

15

and
(c) cooperate with respect to all reasonable procedures sought to be pursued by the

16
17

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

18
19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

another court.

27
28
-16-

10.

1
2

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED

IN THIS LITIGATION
(a)

3

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

4

Party in this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

5

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” Such

6

information produced by Non-Parties in connection with this litigation is protected by the

7

remedies and relief provided by this Order. Nothing in these provisions should be construed as

8

prohibiting a Non-Party from seeking additional protections.
(b)

9

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

10

produce a Non-Party’s confidential information in its possession, and the Party is subject to an

11

agreement with the Non-Party not to produce the Non-Party’s confidential information, then the

12

Party shall:
1.

13

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

14

that some or all of the information requested is subject to a confidentiality agreement with a Non-

15

Party;
2.

16

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

17

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

18

description of the information requested; and
3.

19
20
21

make the information requested available for inspection by the

Non-Party.
(c)

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

22

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

23

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

24

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

25

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

26

determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

27

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

28
-17-

1

11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

2

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed

3

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

4

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

5

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

6

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

7

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

8

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

9
10

12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain

11
12

inadvertently produced material is subject to a claim of privilege or other protection, the

13

obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure

14

26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in

15

an e-discovery order that provides for production without prior privilege review. Pursuant to

16

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

17

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

18

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

19

submitted to the court.

20
21
22
23

13.

MISCELLANEOUS
13.1

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

person to seek its modification by the court in the future.
13.2

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

24

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

25

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

26

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

27

the material covered by this Protective Order.

28
-18-

13.3

1

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

2

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

3

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

4

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

5

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

6

compliance.
13.4

7

Filing Protected Material. Without written permission from the

8

Designating Party or a court order secured after appropriate notice to all interested persons, a

9

Party may not file in the public record in this action any Protected Material. A Party that seeks to

10

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

11

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

12

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

13

only upon a request establishing that the Protected Material at issue is privileged, protectable as a

14

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

15

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

16

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

17

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

18

14.

USE OF NON-PROTECTED MATERIALS

19

All materials that are produced in the course of discovery, including material that

20

is not designated as Protected Material, and all information contained in such materials, may be

21

used by the Receiving Party only for purposes of this litigation and for no other purpose, unless

22

the Receiving Party can show that such materials or information is otherwise publicly available.

23
24

15.

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

25

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

26

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

27

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

28
-19-

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work

9

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

10

Material. Any such archival copies that contain or constitute Protected Material remain subject to

11

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

12

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

13
14
15
16
17
18
19
20
21
22

DATED: __April 22, 2001_____________ ___/s/ Charles L. Roberts_____________________
Attorney for Plaintiff
Charles L. Roberts
DATED: __April 22, 2011_____________ ___/s/ Julie S. Turner__________________________
Attorney for Defendants
Julie S. Turner
AS MODIFIED BY THE COURT,
PURSUANT TO STIPULATION, IT IS SO ORDERED.
^
May 10, 2011
DATED: ________________________ _____________________________________
James Ware
========= Howard R. Lloyd
United States ======Judge
District
Magistrate

23
24
25
26
27
28
-20-

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

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 for

6

the Northern District of California on [date] in the case of ___________ [insert formal name of

7

the case and the number and initials assigned to it by the court]. I agree to comply with and to

8

be bound by all the terms of this Stipulated Protective Order and I understand and acknowledge

9

that failure to so comply could expose me to sanctions and punishment in the nature of contempt.

10

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

11

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

12

provisions of this 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 Protective

15

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
21

Date: _________________________________

22

City and State where sworn and signed: _________________________________

23

Printed name: ______________________________
[printed name]

24
25
26

Signature: __________________________________
[signature]

27
28
-21-