Apple Inc. v. Samsung Electronics Co. Ltd. et al
Filing
65
Declaration of Erik Olson in Support of #64 Reply to Opposition/Response to Samsung's Motion to Compel Apple to Produce Reciprocal Expedited Discovery filed bySamsung Electronics America, Inc., Samsung Electronics Co. Ltd., Samsung Telecommunications America, LLC. (Attachments: #1 Exhibit 1, #2 Exhibit 2, #3 Exhibit 3)(Related document(s) #64 ) (Maroulis, Victoria) (Filed on 6/10/2011)
EXHIBIT 2
1
Reset Form
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
NORTHERN DISTRICT OF CALIFORNIA
10
11
Case No. C
12
13
Plaintiff,
PATENT LOCAL RULE 2-2 INTERIM
MODEL PROTECTIVE ORDER
v.
14
15
Defendant.
16
17
18
1.
PURPOSES AND LIMITATIONS
19
Disclosure and discovery activity in this action are likely to involve production of
20
confidential, proprietary, or private information for which special protection from public
21
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
22
Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated
23
Protective Order. The parties acknowledge that this Order does not confer blanket protections on
24
all disclosures or responses to discovery and that the protection it affords from public disclosure
25
and use extends only to the limited information or items that are entitled to confidential treatment
26
under the applicable legal principles. The parties further acknowledge, as set forth in Section
27
14.4 below, that this Stipulated Protective Order does not entitle them to file confidential
28
information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and
1
the standards that will be applied when a party seeks permission from the court to file material
2
under seal.
3
4
5
6
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
7
it is generated, stored or maintained) or tangible things that qualify for protection under Federal
8
Rule of Civil Procedure 26(c).
9
10
11
12
13
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
14
items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL,”
15
“HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY,” or “HIGHLY CONFIDENTIAL
16
– SOURCE CODE.”
17
2.6
Disclosure or Discovery Material: all items or information, regardless of
18
the medium or manner in which it is generated, stored, or maintained (including, among other
19
things, testimony, transcripts, and tangible things), that are produced or generated in disclosures
20
or responses to discovery in this matter.
21
2.7
Expert: a person with specialized knowledge or experience in a matter
22
pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert
23
witness or as a consultant in this action, (2) is not a past or current employee of a Party or of a
24
Party's competitor, and (3) at the time of retention, is not anticipated to become an employee of a
25
Party or of a Party's competitor.
26
2.8
“HIGHLY
CONFIDENTIAL
–
ATTORNEYS’
EYES
ONLY”
27
Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of
28
which to another Party or Non-Party would create a substantial risk of serious harm that could not
2
1
be avoided by less restrictive means.
2
2.9
“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:
3
extremely sensitive “Confidential Information or Items” representing computer code and
4
associated comments and revision histories, formulas, engineering specifications, or schematics
5
that define or otherwise describe in detail the algorithms or structure of software or hardware
6
designs, disclosure of which to another Party or Non-Party would create a substantial risk of
7
serious harm that could not be avoided by less restrictive means.
8
9
2.10
House Counsel does not include Outside Counsel of Record or any other outside counsel.
10
11
House Counsel: attorneys who are employees of a party to this action.
2.11
Non-Party: any natural person, partnership, corporation, association, or
other legal entity not named as a Party to this action.
12
2.12
Outside Counsel of Record: attorneys who are not employees of a party to
13
this action but are retained to represent or advise a party to this action and have appeared in this
14
action on behalf of that party or are affiliated with a law firm which has appeared on behalf of
15
that party.
16
2.13
Party: any party to this action, including all of its officers, directors,
17
employees, consultants, retained experts, and Outside Counsel of Record (and their support
18
staffs).
19
2.14
20
Discovery Material in this action.
21
2.15
Producing Party:
a Party or Non-Party that produces Disclosure or
Professional Vendors: persons or entities that provide litigation support
22
services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
23
organizing, storing, or retrieving data in any form or medium) and their employees and
24
subcontractors.
25
2.16
Protected Material:
any Disclosure or Discovery Material that is
26
designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
27
ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
28
2.17
Receiving Party: a Party that receives Disclosure or Discovery Material
3
1
2
from a Producing Party.
3.
SCOPE
3
The protections conferred by this Stipulation and Order cover not only Protected
4
Material (as defined above), but also (1) any information copied or extracted from Protected
5
Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any
6
testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected
7
Material. However, the protections conferred by this Stipulation and Order do not cover the
8
following information: (a) any information that is in the public domain at the time of disclosure
9
to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party
10
as a result of publication not involving a violation of this Order, including becoming part of the
11
public record through trial or otherwise; and (b) any information known to the Receiving Party
12
prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
13
obtained the information lawfully and under no obligation of confidentiality to the Designating
14
Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
15
4.
DURATION
16
Even after final disposition of this litigation, the confidentiality obligations
17
imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing
18
or a court order otherwise directs. Final disposition shall be deemed to be the later of (1)
19
dismissal of all claims and defenses in this action, with or without prejudice; and (2) final
20
judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials, or
21
reviews of this action, including the time limits for filing any motions or applications for
22
extension of time pursuant to applicable law.
23
24
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection.
25
Each Party or Non-Party that designates information or items for protection under this Order must
26
take care to limit any such designation to specific material that qualifies under the appropriate
27
standards. To the extent it is practical to do so, the Designating Party must designate for
28
protection only those parts of material, documents, items, or oral or written communications that
4
1
qualify – so that other portions of the material, documents, items, or communications for which
2
protection is not warranted are not swept unjustifiably within the ambit of this Order.
3
Mass, indiscriminate, or routinized designations are prohibited. Designations that
4
are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
5
unnecessarily encumber or retard the case development process or to impose unnecessary
6
expenses and burdens on other parties) expose the Designating Party to sanctions.
7
If it comes to a Designating Party’s attention that information or items that it
8
designated for protection do not qualify for protection at all or do not qualify for the level of
9
protection initially asserted, that Designating Party must promptly notify all other Parties that it is
10
withdrawing the mistaken designation.
11
5.2
Manner and Timing of Designations. Except as otherwise provided in this
12
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
13
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
14
designated before the material is disclosed or produced.
15
Designation in conformity with this Order requires:
16
(a) for information in documentary form (e.g., paper or electronic documents, but
17
excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
18
Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
19
EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains
20
protected material. If only a portion or portions of the material on a page qualifies for protection,
21
the Producing Party also must clearly identify the protected portion(s) (e.g., by making
22
appropriate markings in the margins) and must specify, for each portion, the level of protection
23
being asserted.
24
A Party or Non-Party that makes original documents or materials available for
25
inspection need not designate them for protection until after the inspecting Party has indicated
26
which material it would like copied and produced.
27
designation, all of the material made available for inspection shall be deemed “HIGHLY
28
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the
During the inspection and before the
5
1
documents it wants copied and produced, the Producing Party must determine which documents,
2
or portions thereof, qualify for protection under this Order. Then, before producing the specified
3
documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL,”
4
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL
5
– SOURCE CODE”) to each page that contains Protected Material. If only a portion or portions
6
of the material on a page qualifies for protection, the Producing Party also must clearly identify
7
the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify,
8
for each portion, the level of protection being asserted.
9
(b) for testimony given in deposition or in other pretrial or trial proceedings, that
10
the Designating Party identify on the record, before the close of the deposition, hearing, or other
11
proceeding, all protected testimony and specify the level of protection being asserted. When it is
12
impractical to identify separately each portion of testimony that is entitled to protection and it
13
appears that substantial portions of the testimony may qualify for protection, the Designating
14
Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded)
15
a right to have up to 21 days to identify the specific portions of the testimony as to which
16
protection is sought and to specify the level of protection being asserted. Only those portions of
17
the testimony that are appropriately designated for protection within the 21 days shall be covered
18
by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may
19
specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the
20
entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
21
ATTORNEYS’ EYES ONLY.”
22
Parties shall give the other parties notice if they reasonably expect a deposition,
23
hearing, or other proceeding to include Protected Material so that the other parties can ensure that
24
only authorized individuals who have signed the “Acknowledgment and Agreement to Be
25
Bound” (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a
26
deposition shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY
27
CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
28
Transcripts containing Protected Material shall have an obvious legend on the title
6
1
page that the transcript contains Protected Material, and the title page shall be followed by a list
2
of all pages (including line numbers as appropriate) that have been designated as Protected
3
Material and the level of protection being asserted by the Designating Party. The Designating
4
Party shall inform the court reporter of these requirements. Any transcript that is prepared before
5
the expiration of a 21-day period for designation shall be treated during that period as if it had
6
been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety
7
unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as
8
actually designated.
9
(c) for information produced in some form other than documentary and for any
10
other tangible items, that the Producing Party affix in a prominent place on the exterior of the
11
container or containers in which the information or item is stored the legend “CONFIDENTIAL,”
12
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL
13
– SOURCE CODE.” If only a portion or portions of the information or item warrant protection,
14
the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify
15
the level of protection being asserted.
16
5.3
Inadvertent Failures to Designate.
If timely corrected, an inadvertent
17
failure to designate qualified information or items does not, standing alone, waive the Designating
18
Party’s right to secure protection under this Order for such material. Upon timely correction of a
19
designation, the Receiving Party must make reasonable efforts to assure that the material is
20
treated in accordance with the provisions of this Order.
21
22
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges.
Any Party or Non-Party may challenge a
23
designation of confidentiality at any time. Unless a prompt challenge to a Designating Party’s
24
confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary
25
economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its
26
right to challenge a confidentiality designation by electing not to mount a challenge promptly
27
after the original designation is disclosed.
28
6.2
Meet and Confer.
The Challenging Party shall initiate the dispute
7
1
resolution process by providing written notice of each designation it is challenging and describing
2
the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the
3
written notice must recite that the challenge to confidentiality is being made in accordance with
4
this specific paragraph of the Protective Order.
5
challenge in good faith and must begin the process by conferring directly (in voice to voice
6
dialogue; other forms of communication are not sufficient) within 14 days of the date of service
7
of notice. In conferring, the Challenging Party must explain the basis for its belief that the
8
confidentiality designation was not proper and must give the Designating Party an opportunity to
9
review the designated material, to reconsider the circumstances, and, if no change in designation
10
is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to
11
the next stage of the challenge process only if it has engaged in this meet and confer process first
12
or establishes that the Designating Party is unwilling to participate in the meet and confer process
13
in a timely manner.
14
6.3
The parties shall attempt to resolve each
Judicial Intervention. If the Parties cannot resolve a challenge without
15
court intervention, the Designating Party shall file and serve a motion to retain confidentiality
16
under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21
17
days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and
18
confer process will not resolve their dispute, whichever is earlier. Each such motion must be
19
accompanied by a competent declaration affirming that the movant has complied with the meet
20
and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
21
make such a motion including the required declaration within 21 days (or 14 days, if applicable)
22
shall automatically waive the confidentiality designation for each challenged designation. In
23
addition, the Challenging Party may file a motion challenging a confidentiality designation at any
24
time if there is good cause for doing so, including a challenge to the designation of a deposition
25
transcript or any portions thereof. Any motion brought pursuant to this provision must be
26
accompanied by a competent declaration affirming that the movant has complied with the meet
27
and confer requirements imposed by the preceding paragraph.
28
The burden of persuasion in any such challenge proceeding shall be on the
8
1
Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass
2
or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party
3
to sanctions. Unless the Designating Party has waived the confidentiality designation by failing
4
to file a motion to retain confidentiality as described above, all parties shall continue to afford the
5
material in question the level of protection to which it is entitled under the Producing Party’s
6
designation until the court rules on the challenge.
7
7.
8
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is
9
disclosed or produced by another Party or by a Non-Party in connection with this case only for
10
prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
11
disclosed only to the categories of persons and under the conditions described in this Order.
12
When the litigation has been terminated, a Receiving Party must comply with the provisions of
13
section 15 below (FINAL DISPOSITION).
14
Protected Material must be stored and maintained by a Receiving Party at a
15
location and in a secure manner that ensures that access is limited to the persons authorized under
16
this Order.
17
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
18
ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
19
disclose any information or item designated “CONFIDENTIAL” only to:
20
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
21
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
22
information for this litigation and who have signed the “Acknowledgment and Agreement to Be
23
Bound” that is attached hereto as Exhibit A;
24
(b)
the officers, directors, and employees (including House Counsel) of the
25
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
26
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
27
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
28
reasonably necessary for this litigation and who have signed the “Acknowledgment and
9
1
Agreement to Be Bound” (Exhibit A);
2
(d) the court and its personnel;
3
(e)
court reporters and their staff, professional jury or trial consultants, and
4
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
5
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
6
(f)
during their depositions, witnesses in the action to whom disclosure is
7
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
8
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
9
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
10
separately bound by the court reporter and may not be disclosed to anyone except as permitted
11
under this Stipulated Protective Order.
12
13
(g) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
14
7.3
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
15
ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless
16
otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving
17
Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –
18
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
19
(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
20
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
21
information for this litigation and who have signed the “Acknowledgment and Agreement to Be
22
Bound” that is attached hereto as Exhibit A;
23
(b) Designated House Counsel of the Receiving Party (1) who has no involvement
24
in competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation,
25
(3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to
26
whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;1
27
28
1
This Order contemplates that Designated House Counsel shall not have access to any
information or items designated “HIGHLY CONFIDENTIAL – SOURCE CODE.”
10
1
(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary
2
for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”
3
(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been
4
followed;
5
(d) the court and its personnel;
6
(e)
court reporters and their staff, professional jury or trial consultants, and
7
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
8
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
9
10
(f) the author or recipient of a document containing the information or a custodian
or other person who otherwise possessed or knew the information.
11
7.4
Procedures for Approving or Objecting to Disclosure of “HIGHLY
12
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
13
CODE” Information or Items to Designated House Counsel or Experts.
14
(a)(1) Unless otherwise ordered by the court or agreed to in writing by the
15
Designating Party, a Party that seeks to disclose to Designated House Counsel any information or
16
item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
17
pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1)
18
sets forth the full name of the Designated House Counsel and the city and state of his or her
19
residence and (2) describes the Designated House Counsel’s current and reasonably foreseeable
20
future primary job duties and responsibilities in sufficient detail to determine if House Counsel is
21
involved, or may become involved, in any competitive decision-making.
22
(a)(2) Unless otherwise ordered by the court or agreed to in writing by the
23
Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
24
information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
25
EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c)
26
first must make a written request to the Designating Party that (1) identifies the general categories
27
of
28
CONFIDENTIAL – SOURCE CODE” information that the Receiving Party seeks permission to
“HIGHLY
CONFIDENTIAL
–
ATTORNEYS’
EYES
ONLY”
or
“HIGHLY
11
1
disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or her
2
primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s
3
current employer(s), (5) identifies each person or entity from whom the Expert has received
4
compensation or funding for work in his or her areas of expertise or to whom the expert has
5
provided professional services, including in connection with a litigation, at any time during the
6
preceding five years,2 and (6) identifies (by name and number of the case, filing date, and location
7
of court) any litigation in connection with which the Expert has offered expert testimony,
8
including through a declaration, report, or testimony at a deposition or trial, during the preceding
9
five years.
10
(b) A Party that makes a request and provides the information specified in the
11
preceding respective paragraphs may disclose the subject Protected Material to the identified
12
Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party
13
receives a written objection from the Designating Party. Any such objection must set forth in
14
detail the grounds on which it is based.
15
(c) A Party that receives a timely written objection must meet and confer with the
16
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 disclosure to Designated House Counsel or the
22
Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and
23
suggest any additional means that could be used to reduce that risk. In addition, any such motion
24
must be accompanied by a competent declaration describing the parties’ efforts to resolve the
25
matter by agreement (i.e., the extent and the content of the meet and confer discussions) and
26
27
28
2
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.
12
1
setting forth the reasons advanced by the Designating Party for its refusal to approve the
2
disclosure.
3
In any such proceeding, the Party opposing disclosure to Designated House
4
Counsel or the Expert shall bear the burden of proving that the risk of harm that the disclosure
5
would entail (under the safeguards proposed) outweighs the Receiving Party’s need to disclose
6
the Protected Material to its Designated House Counsel or Expert.
7
8.
PROSECUTION BAR
8
Absent written consent from the Producing Party, any individual who receives
9
access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
10
CONFIDENTIAL – SOURCE CODE” information shall not be involved in the prosecution of
11
patents or patent applications relating to [insert subject matter of the invention and of highly
12
confidential technical information to be produced], including without limitation the patents
13
asserted in this action and any patent or application claiming priority to or otherwise related to the
14
patents asserted in this action, before any foreign or domestic agency, including the United States
15
Patent and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution”
16
includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or
17
maintenance of patent claims.3 To avoid any doubt, “prosecution” as used in this paragraph does
18
not include representing a party challenging a patent before a domestic or foreign agency
19
(including, but not limited to, a reissue protest, ex parte reexamination or inter partes
20
reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL –
21
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information
22
is first received by the affected individual and shall end two (2) years after final termination of
23
this action.
24
9.
25
SOURCE CODE
(a)
To the extent production of source code becomes necessary in this case, a
26
Producing Party may designate source code as “HIGHLY CONFIDENTIAL – SOURCE CODE”
27
if it comprises or includes confidential, proprietary or trade secret source code.
28
3
Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.
13
1
(b)
Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE
2
CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –
3
ATTORNEYS’ EYES ONLY” information, including the Prosecution Bar set forth in Paragraph
4
8, and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL –
5
ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and
6
7.4, with the exception of Designated House Counsel.
7
(c)
Any source code produced in discovery shall be made available for
8
inspection, in a format allowing it to be reasonably reviewed and searched, during normal
9
business hours or at other mutually agreeable times, at an office of the Producing Party’s counsel
10
or another mutually agreed upon location. The source code shall be made available for inspection
11
on a secured computer in a secured room without Internet access or network access to other
12
computers, and the Receiving Party shall not copy, remove, or otherwise transfer any portion of
13
the source code onto any recordable media or recordable device. The Producing Party may
14
visually monitor the activities of the Receiving Party’s representatives during any source code
15
review, but only to ensure that there is no unauthorized recording, copying, or transmission of the
16
source code.
17
(d) The Receiving Party may request paper copies of limited portions of source
18
code that are reasonably necessary for the preparation of court filings, pleadings, expert reports,
19
or other papers, or for deposition or trial, but shall not request paper copies for the purpose of
20
reviewing the source code other than electronically as set forth in paragraph (c) in the first
21
instance. The Producing Party shall provide all such source code in paper form, including bates
22
numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.” The Producing Party
23
may challenge the amount of source code requested in hard copy form pursuant to the dispute
24
resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the
25
“Challenging Party” and the Receiving Party is the “Designating Party” for purposes of dispute
26
resolution.
27
28
(e)
The Receiving Party shall maintain a record of any individual who has
inspected any portion of the source code in electronic or paper form. The Receiving Party shall
14
1
maintain all paper copies of any printed portions of the source code in a secured, locked area.
2
The Receiving Party shall not create any electronic or other images of the paper copies and shall
3
not convert any of the information contained in the paper copies into any electronic format. The
4
Receiving Party shall only make additional paper copies if such additional copies are (1)
5
necessary to prepare court filings, pleadings, or other papers (including a testifying expert’s
6
expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its
7
case. Any paper copies used during a deposition shall be retrieved by the Producing Party at the
8
end of each day and must not be given to or left with a court reporter or any other unauthorized
9
individual.
10
10.
11
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION
12
If a Party is served with a subpoena or a court order issued in other litigation that
13
compels disclosure of any information or items designated in this action as “CONFIDENTIAL,”
14
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL
15
– SOURCE CODE,” that Party must:
16
17
(a) promptly notify in writing the Designating Party. Such notification shall
include a copy of the subpoena or court order;
18
(b) promptly notify in writing the party who caused the subpoena or order to issue
19
in the other litigation that some or all of the material covered by the subpoena or order is subject
20
to this Protective Order. Such notification shall include a copy of this Stipulated Protective
21
Order; and
22
23
(c) cooperate with respect to all reasonable procedures sought to be pursued by
the Designating Party whose Protected Material may be affected.4
24
If the Designating Party timely seeks a protective order, the Party served with the
25
subpoena or court order shall not produce any information designated in this action as
26
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” or
27
4
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.
15
1
“HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court from
2
which the subpoena or order issued, unless the Party has obtained the Designating Party’s
3
permission. The Designating Party shall bear the burden and expense of seeking protection in
4
that court of its confidential material – and nothing in these provisions should be construed as
5
authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from
6
another court.
7
8
11.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
9
(a)
The terms of this Order are applicable to information produced by a Non-
10
Party in this action and designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
11
ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” Such
12
information produced by Non-Parties in connection with this litigation is protected by the
13
remedies and relief provided by this Order. Nothing in these provisions should be construed as
14
prohibiting a Non-Party from seeking additional protections.
15
(b)
In the event that a Party is required, by a valid discovery request, to
16
produce a Non-Party’s confidential information in its possession, and the Party is subject to an
17
agreement with the Non-Party not to produce the Non-Party’s confidential information, then the
18
Party shall:
19
1.
promptly notify in writing the Requesting Party and the Non-Party
20
that some or all of the information requested is subject to a confidentiality agreement with a Non-
21
Party;
22
2.
promptly provide the Non-Party with a copy of the Stipulated
23
Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific
24
description of the information requested; and
25
26
27
28
3.
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
within 14 days of receiving the notice and accompanying information, the Receiving Party may
16
1
produce the Non-Party’s confidential information responsive to the discovery request. If the
2
Non-Party timely seeks a protective order, the Receiving Party shall not produce any information
3
in its possession or control that is subject to the confidentiality agreement with the Non-Party
4
before a determination by the court.5 Absent a court order to the contrary, the Non-Party shall
5
bear the burden and expense of seeking protection in this court of its Protected Material.
6
12.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
7
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
8
Protected Material to any person or in any circumstance not authorized under this Stipulated
9
Protective Order, the Receiving Party must immediately (a) notify in writing the Designating
10
Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of
11
the Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
12
made of all the terms of this Order, and (d) request such person or persons to execute the
13
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
14
15
13.
INADVERTENT
PRODUCTION
OF
PRIVILEGED
OR
OTHERWISE
PROTECTED MATERIAL
16
When a Producing Party gives notice to Receiving Parties that certain
17
inadvertently produced material is subject to a claim of privilege or other protection, the
18
obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
19
26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in
20
an e-discovery order that provides for production without prior privilege review. Pursuant to
21
Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of
22
disclosure of a communication or information covered by the attorney-client privilege or work
23
product protection, the parties may incorporate their agreement in the stipulated protective order
24
submitted to the court.
25
14.
26
27
28
MISCELLANEOUS
14.1
Right to Further Relief. Nothing in this Order abridges the right of any
5
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.
17
1
person to seek its modification by the court in the future.
2
14.2
Right to Assert Other Objections.
By stipulating to the entry of this
3
Protective Order no Party waives any right it otherwise would have to object to disclosing or
4
producing any information or item on any ground not addressed in this Stipulated Protective
5
Order. Similarly, no Party waives any right to object on any ground to use in evidence of any of
6
the material covered by this Protective Order.
7
14.3
Export Control. Disclosure of Protected Material shall be subject to all
8
applicable laws and regulations relating to the export of technical data contained in such
9
Protected Material, including the release of such technical data to foreign persons or nationals in
10
the United States or elsewhere. The Producing Party shall be responsible for identifying any such
11
controlled technical data, and the Receiving Party shall take measures necessary to ensure
12
compliance.
13
14.4
Filing Protected Material.
Without written permission from the
14
Designating Party or a court order secured after appropriate notice to all interested persons, a
15
Party may not file in the public record in this action any Protected Material. A Party that seeks to
16
file under seal any Protected Material must comply with Civil Local Rule 79-5. Protected
17
Material may only be filed under seal pursuant to a court order authorizing the sealing of the
18
specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue
19
only upon a request establishing that the Protected Material at issue is privileged, protectable as a
20
trade secret, or otherwise entitled to protection under the law. If a Receiving Party's request to
21
file Protected Material under seal pursuant to Civil Local Rule 79-5(d) is denied by the court, then
22
the Receiving Party may file the Protected Material in the public record pursuant to Civil Local
23
Rule 79-5(e) unless otherwise instructed by the court.
24
15.
FINAL DISPOSITION
25
Within 60 days after the final disposition of this action, as defined in paragraph 4,
26
each Receiving Party must return all Protected Material to the Producing Party or destroy such
27
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
28
compilations, summaries, and any other format reproducing or capturing any of the Protected
18
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
13
14
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
15
16
DATED: ________________________ _____________________________________
Attorneys for Plaintiff
17
18
19
DATED: ________________________ _____________________________________
Attorneys for Defendant
20
PURSUANT TO STIPULATION, IT IS SO ORDERED.
21
22
23
DATED: ________________________ _____________________________________
[Name of Judge]
United States District/Magistrate Judge
24
25
26
27
28
19
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
5
in its entirety and understand the Stipulated Protective Order that was issued by the United States
6
District Court for the Northern District of California on _______ [date] in the case of
7
___________ [insert formal name of the case and the number and initials assigned to it by
8
the court]. I agree to comply with and to be bound by all the terms of this Stipulated Protective
9
Order, and I understand and acknowledge that failure to so comply could expose me to sanctions
10
and punishment in the nature of contempt. I solemnly promise that I will not disclose in any
11
manner any information or item that is subject to this Stipulated Protective Order to any person or
12
entity except in strict compliance with the provisions of this Order.
13
I further agree to submit to the jurisdiction of the United States District Court for
14
the 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
21
Date: _________________________________
22
City and State where sworn and signed: _________________________________
23
Printed name: ______________________________
[printed name]
24
25
26
Signature: __________________________________
[signature]
27
28
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?