Innovative Automation, LLC v. Primera Technology, Inc
Filing
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STIPULATED PROTECTIVE ORDER (AS MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on 11/18/11. (hrllc1, COURT STAFF) (Filed on 11/18/2011)
** E-filed November 18, 2011 **
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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Case No. 5:11-CV-03409-HRL
INNOVATIVE AUTOMATION LLC,
Plaintiff,
v.
PRIMERA TECHNOLOGY, INC.,
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[PROPOSED] Stipulated Protective
Order
(AS MODIFIED BY THE COURT)
Defendant.
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__________________________________/
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AND RELATED COUNTERCLAIMS
__________________________________/
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Plaintiff Innovative Automation LLC (“Innovative”) and Defendant Primera
Technology, Inc. (“Primera”) by and through their respective counsel, hereby request that
the Court enter the following Protective Order (“Order”).
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1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve
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production of confidential, proprietary, or private information for which special protection
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from public disclosure and from use for any purpose other than prosecuting this litigation
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may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter
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the following Stipulated Protective Order. The parties acknowledge that this Order does not
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confer blanket protections on all disclosures or responses to discovery and that the
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protection it affords from public disclosure and use extends only to the limited information
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or items that are entitled to confidential treatment under the applicable legal principles. The
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parties further acknowledge, as set forth in Section 13.4 below, that this Stipulated
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Protective Order does not entitle them to file confidential information under seal; Civil
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Protective Order
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and General Order 62
Local Rule 79-5 sets forth the procedures that must be followed and the standards that will
be applied when a party seeks permission from the court to file material under seal.
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2.
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the
designation of information or items under this Order.
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“CONFIDENTIAL” Information or Items: information (regardless of
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how it is generated, stored or maintained) or tangible things that qualify for protection under
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Federal Rule of Civil Procedure 26(c).
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Counsel (without qualifier): Outside Counsel of Record and House
Counsel (as well as their support staff).
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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
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or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL,”
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“HIGHLY CONFIDENTIAL – ATTORNEYS' EYES ONLY,” or “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE.”
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2.6
Disclosure or Discovery Material: all items or information, regardless
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of the medium or manner in which it is generated, stored, or maintained (including, among
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other things, testimony, transcripts, and tangible things), that are produced or generated in
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disclosures or responses to discovery in this matter.
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2.7
Expert: a person with specialized knowledge or experience in a matter
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pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an
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expert witness or as a consultant in this action, (2) is not a past or current employee of a
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Party or of a Party's competitor, and (3) at the time of retention, is not anticipated to become
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an employee of a Party or of a Party's competitor.
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2.8
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
Information or Items: extremely sensitive “Confidential Information or Items,” disclosure of
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which to another Party or Non-Party would create a substantial risk of serious harm that
could not be avoided by less restrictive means.
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Items: extremely sensitive “Confidential Information or Items” representing computer code
and associated comments and revision histories, formulas, engineering specifications, or
schematics that define or otherwise describe in detail the algorithms or structure of software
or hardware designs, disclosure of which to another Party or Non-Party would create a
substantial risk of serious harm that could not be avoided by less restrictive means.
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2.12
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Outside Counsel of Record: attorneys who are not employees of a
party to this action but are retained to represent or advise a party to this action and have
appeared in this action on behalf of that party or are affiliated with a law firm which has
appeared on behalf of that party.
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Non-Party: any natural person, partnership, corporation, association,
or other legal entity not named as a Party to this action.
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House Counsel: attorneys who are employees of a party to this action.
House Counsel does not include Outside Counsel of Record or any other outside counsel.
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“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
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Party: any party to this action, including all of its officers, directors,
employees, consultants, retained experts, and Outside Counsel of Record (and their support
staffs).
2.14
Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
2.15
Professional Vendors: persons or entities that provide litigation
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
demonstrations, and organizing, storing, or retrieving data in any form or medium) and their
employees and subcontractors.
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designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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Protected Material: any Disclosure or Discovery Material that is
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Receiving Party: In the event that the Producing Party is a party to
this action, the “Receiving Party” shall mean the party to this action that receives Disclosure
or Discovery Material from the Producing Party. In the event that the Producing Party is a
non-party, the “Receiving Party” shall mean any Party to this action.
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3.
SCOPE
The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also (1) any information copied or extracted from
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Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
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Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel
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that might reveal Protected Material. However, the protections conferred by this Stipulation
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and Order do not cover the following information: (a) any information that is in the public
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domain at the time of disclosure to a Receiving Party or becomes part of the public domain
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after its disclosure to a Receiving Party as a result of publication not involving a violation of
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this Order, including becoming part of the public record through trial or otherwise; and (b)
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any information known to the Receiving Party prior to the disclosure or obtained by the
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Receiving Party after the disclosure from a source who obtained the information lawfully
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and under no obligation of confidentiality to the Designating Party. Any use of Protected
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Material at trial shall be governed by a separate agreement or order.
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4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations
imposed by this Order shall remain in effect until a Designating Party agrees otherwise in
writing or a court order otherwise directs. Final disposition shall be deemed to be the later of
(1) dismissal of all claims and defenses in this action, with or without prejudice; and (2)
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final judgment herein after the completion and exhaustion of all appeals, rehearings,
remands, trials, or reviews of this action, including the time limits for filing any motions or
This court will retain jurisdiction for a
applications for extension of time pursuant to applicable law. period of six months following final
disposition of this litigation.
5.
DESIGNATING PROTECTED MATERIAL
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Exercise of Restraint and Care in Designating Material for Protection.
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Each Party or Non-Party that designates information or items for protection under this Order
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must take care to limit any such designation to specific material that qualifies under the
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appropriate standards. To the extent it is practical to do so, the Designating Party must
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designate for protection only those parts of material, documents, items, or oral or written
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communications that qualify – so that other portions of the material, documents, items, or
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communications for which protection is not warranted are not swept unjustifiably within the
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ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations
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that are shown to be clearly unjustified or that have been made for an improper purpose
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(e.g., to unnecessarily encumber or retard the case development process or to impose
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unnecessary expenses and burdens on other parties) expose the Designating Party to
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sanctions.
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If it comes to a Designating Party’s attention that information or items that it
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designated for protection do not qualify for protection at all or do not qualify for the level of
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protection initially asserted, that Designating Party must promptly notify all other Parties
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that it is withdrawing the mistaken designation.
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5.2
Manner and Timing of Designations. Except as otherwise provided in
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this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
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ordered, Disclosure or Discovery Material that qualifies for protection under this Order must
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be clearly so designated before the material is disclosed or produced.
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Designation in conformity with this Order requires:
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(a) for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions or other pretrial or trial proceedings), that the
Producing Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to
each page that contains protected material. If only a portion or portions of the material on a
page qualifies for protection, the Producing Party also must clearly identify the protected
portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each
portion, the level of protection being asserted.
A Party or Non-Party that makes original documents or materials available
for inspection need not designate them for protection until after the inspecting Party has
indicated which material it would like copied and produced. During the inspection and
before the designation, all of the material made available for inspection shall be deemed
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party
has identified the documents it wants copied and produced, the Producing Party must
determine which documents, or portions thereof, qualify for protection under this Order.
Then, before producing the specified documents, the Producing Party must affix the
appropriate legend (“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE”) to each page that
contains Protected Material. If only a portion or portions of the material on a page qualifies
for protection, the Producing Party also must clearly identify the protected portion(s) (e.g.,
by making appropriate markings in the margins) and must specify, for each portion, the level
of protection being asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings,
that the Designating Party identify on the record, before the close of the deposition, hearing,
or other proceeding, all protected testimony and specify the level of protection being
asserted. When it is impractical to identify separately each portion of testimony that is
entitled to protection and it appears that substantial portions of the testimony may qualify for
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protection, the Designating Party may invoke on the record (before the deposition, hearing,
or other proceeding is concluded) a right to have up to 21 days to identify the specific
portions of the testimony as to which protection is sought and to specify the level of
protection being asserted. Only those portions of the testimony that are appropriately
designated for protection within the 21 days shall be covered by the provisions of this
Stipulated Protective Order. Alternatively, a Designating Party may specify, at the
deposition or up to 21 days afterwards if that period is properly invoked, that the entire
transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.”
Parties shall give the other parties notice if they reasonably expect a
deposition, hearing, or other proceeding to include Protected Material so that the other
parties can ensure that only authorized individuals who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a
document as an exhibit at a deposition shall not in any way affect its designation as
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
Transcripts containing Protected Material shall have an obvious legend on the
title page that the transcript contains Protected Material, and the title page shall be followed
by a list of all pages (including line numbers as appropriate) that have been designated as
Protected Material and the level of protection being asserted by the Designating Party. The
Designating Party shall inform the court reporter of these requirements. Any transcript that
is prepared before the expiration of a 21-day period for designation shall be treated during
that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the
transcript shall be treated only as actually designated.
(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 container or containers in which the information or item is stored the legend
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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
“HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a portion or portions of the
information or item warrant protection, the Producing Party, to the extent practicable, shall
identify the protected portion(s) and specify the level of protection being asserted.
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
failure to designate qualified information or items does not, standing alone, waive the
Designating Party’s right to secure protection under this Order for such material. Upon
timely correction of a designation, the Receiving Party must make reasonable efforts to
assure that the material is treated in accordance with the provisions of this Order.
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6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
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designation of confidentiality at any time. Unless a prompt challenge to a Designating
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Party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
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unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party
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does not waive its right to challenge a confidentiality designation by electing not to mount a
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challenge promptly after the original designation is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute
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resolution process by providing written notice of each designation it is challenging and
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describing the basis for each challenge. To avoid ambiguity as to whether a challenge has
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been made, the written notice must recite that the challenge to confidentiality is being made
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in accordance with this specific paragraph of the Protective Order. The parties shall attempt
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to resolve each challenge in good faith and must begin the process by conferring directly (in
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voice to voice dialogue; other forms of communication are not sufficient) within 14 days of
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the date of service of notice. In conferring, the Challenging Party must explain the basis for
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its belief that the confidentiality designation was not proper and must give the Designating
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Party an opportunity to review the designated material, to reconsider the circumstances, and,
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if no change in designation is offered, to explain the basis for the chosen designation. A
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Challenging Party may proceed to the next stage of the challenge process only if it has
engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
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6.3
court intervention, the Designating Party shall file and serve a motion to retain
confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if
applicable) within 21 days of the initial notice of challenge or within 14 days of the parties
agreeing that the meet and confer process will not resolve their dispute, whichever is earlier.
Each such motion must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed in the preceding
paragraph. Failure by the Designating Party to make such a motion including the required
declaration within 21 days (or 14 days, if applicable) shall automatically waive the
confidentiality designation for each challenged designation. In addition, the Challenging
Party may file a motion challenging a confidentiality designation at any time if there is good
cause for doing so, including a challenge to the designation of a deposition transcript or any
portions thereof. Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer
requirements imposed by the preceding paragraph. See page 9.1, below.
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Judicial Intervention. If the Parties cannot resolve a challenge without
The burden of persuasion in any such challenge proceeding shall be on the
Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to
harass or impose unnecessary expenses and burdens on other parties) may expose the
Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality
designation by failing to file a motion to retain confidentiality as described above, all parties
shall continue to afford the material in question the level of protection to which it is entitled
under the Producing Party’s designation until the court rules on the challenge.
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7.
ACCESS TO AND USE OF PROTECTED MATERIAL
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6.3 Judicial Intervention. If the Parties cannot resolve a challenge after complying with the
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meet and confer requirements above, the parties shall file a Discovery Dispute Joint Report
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(“DDJR”), pursuant to the undersigned’s Standing Order re Civil Discovery Disputes. The DDJR
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shall affirm that the above meet and confer requirements have been satisfied. The DDJR must be
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filed within 5 business days after the conclusion of the meet and confer sessions (or 5 business days
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after reaching impasse as to a particular issue). In no event may a DDJR be filed later than 7 days
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after the discovery cut-off date(s) as prescribed in Civil L.R. 37-3. Failure by the Designating Party
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to defend its confidentiality designation(s) through the DDJR shall automatically waive the
For the Northern District of California
United States District Court
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confidentiality designation for each challenged designation.
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9.1
6.1
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7.1 Basic Principles. A Receiving Party may use Protected Material that is
disclosed or produced by another Party or by a Non-Party in connection with this case only
for prosecuting, defending, or attempting to settle this litigation. Such Protected Material
may be disclosed only to the categories of persons and under the conditions described in this
Order. When the litigation has been terminated, a Receiving Party must comply with the
provisions of section 14 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a
location and in a secure manner that ensures that access is limited to the persons authorized
under this Order.
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving
Party may disclose any information or item designated “CONFIDENTIAL” only to:
(a)
the Receiving Party’s Outside Counsel of Record in this action, as
well as employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom
disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
(d) the court and its personnel; and anyone as may be ordered by the court;
(e) court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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(f) during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
court. Pages of transcribed deposition testimony or exhibits to depositions that reveal
Protected Material must be separately bound by the court reporter and may not be disclosed
to anyone except as permitted under this Stipulated Protective Order.
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(g) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
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7.3
ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless
otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving
Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only
to:
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(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
the information for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A;
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(b) Designated House Counsel of the Receiving Party (1) who has no
involvement in competitive decision-making, (2) to whom disclosure is reasonably
necessary for this litigation, (3) who has signed the “Acknowledgment and Agreement to Be
Bound” (Exhibit A), and (4) as to whom the procedures set forth in paragraph 7.4(a)(1),
below, have been followed;1
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Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
(c) Experts of the Receiving Party (1) to whom disclosure is reasonably
necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to
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This Order contemplates that Designated House Counsel shall not have access to any
information or items designated “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2),
below, have been followed;
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(d) the court and its personnel; and anyone as may be ordered by the court;
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(e) court reporters and their staff, professional jury or trial consultants, and
Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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(f) the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
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7.4
Procedures for Approving or Objecting to Disclosure of “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
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SOURCE CODE” Information or Items to Designated House Counsel or Experts.
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(a)(1) Unless otherwise ordered by the court or agreed to in writing by the
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Designating Party, a Party that seeks to disclose to Designated House Counsel any
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information or item that has been designated “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make a written
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request to the Designating Party that (1) sets forth the full name of the Designated House
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Counsel and the city and state of his or her residence and (2) describes the Designated
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House Counsel’s current and reasonably foreseeable future primary job duties and
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responsibilities in sufficient detail to determine if House Counsel is involved, or may
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become involved, in any competitive decision-making.
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(a)(2) Unless otherwise ordered by the court or agreed to in writing by the
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Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
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information or item that has been designated “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
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pursuant to paragraph 7.3(c) first must make a written request to the Designating Party that
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(1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’
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EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information that the
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Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the
Expert and the city and state of his or her primary residence, (3) attaches a copy of the
Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) identifies each
person or entity from whom the Expert has received compensation or funding for work in
his or her areas of expertise or to whom the expert has provided professional services,
including in connection with a litigation, at any time during the preceding five years,2 and
(6) identifies (by name and number of the case, filing date, and location of court) any
litigation in connection with which the Expert has offered expert testimony, including
through a declaration, report, or testimony at a deposition or trial, during the preceding five
years.
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(b) A Party that makes a request and provides the information specified in the
preceding respective paragraphs may disclose the subject Protected Material to the identified
Designated House Counsel or Expert unless, within 14 days of delivering the request, the
Party receives a written objection from the Designating Party. Any such objection must set
forth in detail the grounds on which it is based.
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(c) A Party that receives a timely written objection must meet and confer with
the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
agreement within seven days of the written objection. If no agreement is reached, the Party
parties must comply with Section 6.3, above, and the undersigned Standing Order re: Civil
seeking to make the disclosure to Designated House Counsel or the Expert may file a motion
Discovery Disputes. Any report filed pursuant to the Standing Order
as provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if
applicable) seeking permission from the court to do so. Any such motion must describe the
circumstances with specificity, set forth in detail the reasons why disclosure to Designated
House Counsel or the Expert is reasonably necessary, assess the risk of harm that the
disclosure would entail, and suggest any additional means that could be used to reduce that
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If the Expert believes any of this information is subject to a confidentiality obligation to a
third-party, then the Expert should provide whatever information the Expert believes can be
disclosed without violating any confidentiality agreements, and the Party seeking to disclose
to the Expert shall be available to meet and confer with the Designating Party regarding any
such engagement.
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the report
risk. In addition, any such motion must be accompanied by a competent declaration
describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and the
content of the meet and confer discussions) and setting forth the reasons advanced by the
Designating Party for its refusal to approve the disclosure.
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In any such proceeding, the Party opposing disclosure to Designated House
Counsel or the Expert shall bear the burden of proving that the risk of harm that the
disclosure would entail (under the safeguards proposed) outweighs the Receiving Party’s
need to disclose the Protected Material to its Designated House Counsel or Expert.
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8.
SOURCE CODE
(a) To the extent production of source code becomes necessary in this case, a
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Producing Party may designate source code as “HIGHLY CONFIDENTIAL – SOURCE
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CODE” if it comprises or includes confidential, proprietary or trade secret source code.
(b)
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Protected Material designated as “HIGHLY CONFIDENTIAL –
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SOURCE CODE” shall be subject to all of the protections afforded to “HIGHLY
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CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, including the Prosecution
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Bar set forth in Paragraph 8, and may be disclosed only to the individuals to whom
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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be
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disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House
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Counsel.
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(c)
Any source code produced in discovery shall be made available for
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inspection, in a format allowing it to be reasonably reviewed and searched, during normal
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business hours or at other mutually agreeable times, at an office of the Producing Party’s
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counsel or another mutually agreed upon location. The source code shall be made available
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for inspection on a secured computer in a secured room without Internet access or network
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access to other computers, and the Receiving Party shall not copy, remove, or otherwise
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transfer any portion of the source code onto any recordable media or recordable device. The
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Producing Party may visually monitor the activities of the Receiving Party’s representatives
- 14 Protective Order
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during any source code review, but only to ensure that there is no unauthorized recording,
copying, or transmission of the source code.
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(d)
The Receiving Party may request paper copies of limited portions of
source code that are reasonably necessary for the preparation of court filings, pleadings,
expert reports, or other papers, or for deposition or trial, but shall not request paper copies
for the purpose of reviewing the source code other than electronically as set forth in
paragraph (c) in the first instance. For the avoidance of any doubt, “limited portions of
source code” shall not include the entirety of the source code made available for inspection.
The Producing Party shall provide all requested portions of source code in paper form,
including bates numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.”
The Producing Party may challenge the amount of source code requested in hard copy form
pursuant to the dispute resolution procedure and timeframes set forth in Paragraph 6
whereby the Producing Party is the “Challenging Party” and the Receiving Party is the
“Designating Party” for purposes of dispute resolution. If the Producing Party challenges
the amount of source code requested, it shall be under no obligation to produce hard copies
of the requested source code until either (1) the Parties reach an agreement regarding the
amount of source requested or (2) the dispute resolution procedure described above has been
completed.
(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 maintain all paper copies of any printed portions of the source code in a secured,
locked area. The Receiving Party shall not create any electronic or other images of the paper
copies and shall not convert any of the information contained in the paper copies into any
electronic format. The Receiving Party shall only make additional paper copies if such
additional copies are (1) necessary to prepare court filings, pleadings, or other papers
(including a testifying expert’s expert report), (2) necessary for deposition, or (3) otherwise
necessary for the preparation of its case. Any paper copies used during a deposition shall be
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- 15 Protective Order
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retrieved by the Producing Party at the end of each day and must not be given to or left with
a court reporter or any other unauthorized individual.
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9.
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5
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED
IN OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation
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7
that compels disclosure of any information or items designated in this action as
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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
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“HIGHLY CONFIDENTIAL – SOURCE CODE,” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
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include a copy of the subpoena or court order;
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(b) promptly notify in writing the party who caused the subpoena or order to
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issue in the other litigation that some or all of the material covered by the subpoena or order
14
is subject to this Protective Order. Such notification shall include a copy of this Stipulated
15
Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued
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by the Designating Party whose Protected Material may be affected.3
If the Designating Party timely seeks a protective order, the Party served with
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the subpoena or court order shall not produce any information designated in this action as
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“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” Or
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“HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court from
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which the subpoena or order issued, unless the Party has obtained the Designating Party’s
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permission. The Designating Party shall bear the burden and expense of seeking protection
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in that court of its confidential material – and nothing in these provisions should be
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3
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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.
- 16 Protective Order
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construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful
directive from another court.
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5
10.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
PRODUCED IN THIS LITIGATION
(a) The terms of this Order are applicable to information produced by a Non-
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Party in this action and designated as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” Such
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information produced by Non-Parties in connection with this litigation is protected by the
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remedies and relief provided by this Order. Nothing in these provisions should be construed
11
as prohibiting a Non-Party from seeking additional protections.
(b) In the event that a Party is required, by a valid discovery request, to
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produce a Non-Party’s confidential information in its possession, and the Party is subject to
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an agreement with the Non-Party not to produce the Non-Party’s confidential information,
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then the Party shall:
1.
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promptly notify in writing the Requesting Party and the Non-
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Party that some or all of the information requested is subject to a confidentiality agreement
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with a Non-Party;
2.
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promptly provide the Non-Party with a copy of the Stipulated
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Protective Order in this litigation, the relevant discovery request(s), and a reasonably
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specific description of the information requested; and
3.
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make the information requested available for inspection by the
Non-Party.
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(c) If the Non-Party fails to object or seek a protective order from this court
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within 14 days of receiving the notice and accompanying information, the Receiving Party
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may produce the Non-Party’s confidential information responsive to the discovery request.
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If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any
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information in its possession or control that is subject to the confidentiality agreement with
- 17 Protective Order
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the Non-Party before a determination by the court.4 Absent a court order to the contrary, the
Non-Party shall bear the burden and expense of seeking protection in this court of its
Protected Material.
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11.
5
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
6
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
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Protected Material to any person or in any circumstance not authorized under this Stipulated
8
Protective Order, the Receiving Party must immediately (a) notify in writing the Designating
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Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized
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copies of the Protected Material, (c) inform the person or persons to whom unauthorized
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disclosures were made of all the terms of this Order, and (d) request such person or persons
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to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as
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Exhibit A.
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12.
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PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain
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INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
inadvertently produced material is subject to a claim of privilege or other protection, the
obligations of the Receiving Parties are those set forth in Federal Rule of Civil Procedure
26(b)(5)(B). This provision is not intended to modify whatever procedure may be
established in an e-discovery order that provides for production without prior privilege
review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties reach an
agreement on the effect of disclosure of a communication or information covered by the
attorney-client privilege or work product protection, the parties may incorporate their
agreement in the stipulated protective order submitted to the court.
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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.
- 18 Protective Order
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13.
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13.1
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13.2
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producing any information or item on any ground not addressed in this Stipulated Protective
Order. Similarly, no Party waives any right to object on any ground to use in evidence of
any of the material covered by this Protective Order.
13.3
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Export Control. Disclosure of Protected Material shall be subject to
all applicable laws and regulations relating to the export of technical data contained in such
Protected Material, including the release of such technical data to foreign persons or
nationals in the United States or elsewhere. The Producing Party shall be responsible for
identifying any such controlled technical data, and the Receiving Party shall take measures
necessary to ensure compliance.
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Right to Assert Other Objections. By stipulating to the entry of this
Protective Order no Party waives any right it otherwise would have to object to disclosing or
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Right to Further Relief. Nothing in this Order abridges the right of
any person to seek its modification by the court in the future.
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5
MISCELLANEOUS
13.4
Filing Protected Material. Without written permission from the
Designating Party or a court order secured after appropriate notice to all interested persons, a
Party may not file in the public record in this action any Protected Material. A Party that
seeks to file under seal any Protected Material must comply with Civil Local Rule 79-5.
Protected Material may only be filed under seal pursuant to a court order authorizing the
sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5, a
sealing order will issue only upon a request establishing that the Protected Material at issue
is privileged, protectable as a trade secret, or otherwise entitled to protection under the law.
If a Receiving Party's request to file Protected Material under seal pursuant to Civil Local
Rule 79-5(d) is denied by the court, then the Receiving Party may file the Protected Material
in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the
court.
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14.
FINAL DISPOSITION
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Within 60 days after the final disposition of this action, as defined in
paragraph 4, each Receiving Party must return all Protected Material to the Producing Party
or destroy such material. As used in this subdivision, “all Protected Material” includes all
copies, abstracts, compilations, summaries, and any other format reproducing or capturing
any of the Protected Material. Whether the Protected Material is returned or destroyed, the
Receiving Party must submit a written certification to the Producing Party (and, if not the
same person or entity, to the Designating Party) by the 60 day deadline that (1) identifies (by
category, where appropriate) all the Protected Material that was returned or destroyed and
(2) affirms that the Receiving Party has not retained any copies, abstracts, compilations,
summaries or any other format reproducing or capturing any of the Protected Material.
Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and
consultant and expert work product, even if such materials contain Protected Material. Any
such archival copies that contain or constitute Protected Material remain subject to this
Protective Order as set forth in Section 4 (DURATION).
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
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Dated: November 3, 2011
/s/ Todd Kennedy
TODD KENNEDY
Attorneys for Plaintiff Innovative Automation,
LLC
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GUTRIDE SAFIER LLP
Dated: November 3, 2011
HOWARD RICE NEMEROVSKI
CANADY FALK & RABKIN PC
/s/ Edward A. Bayley
EDWARD A. BAYLEY
Attorneys for Defendant and Counterclaimant
Primera Technology, Inc.
- 20 Protective Order
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PURSUANT TO STIPULATION, IT IS SO ORDERED.
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November 18, 2011
DATED: ________________________ _____________________________________
Hon. Howard R. Lloyd
United States Magistrate Judge
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- 21 Protective Order
EXHIBIT A
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ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
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I, _____________________________ [print or type full name], of
_________________ [print or type full address], declare under penalty of perjury that I have
read in its entirety and understand the Stipulated Protective Order that was issued by the
United States District Court for the Northern District of California on _______ [date] in the
case of ___________ [insert formal name of the case and the number and initials assigned to
it by the court]. I agree to comply with and to be bound by all the terms of this Stipulated
Protective Order, and I understand and acknowledge that failure to so comply could expose
me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not
disclose in any manner any information or item that is subject to this Stipulated Protective
Order to any person or entity except in strict compliance with the provisions of this Order.
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I further agree to submit to the jurisdiction of the United States District Court
for the Northern District of California for the purpose of enforcing the terms of this
Stipulated Protective Order, even if such enforcement proceedings occur after termination of
this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and telephone
number] as my California agent for service of process in connection with this action or any
proceedings related to enforcement of this Stipulated Protective Order.
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Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]
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CERTIFICATION PURSUANT TO GENERAL ORDER 45
2
Pursuant to General Order 45X.B, I attest that the above signatory for Primera
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Technology, Inc. has concurred and consented to the filing of this document.
DATED: November 4, 2011.
__/s/ Todd Kennedy_____________
Todd Kennedy
Attorney for Plaintiff Innovative
Automation, LLC
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