GSI Technology, Inc. v. Cypress Semiconductor Corporation

Filing 44

STIPULATED PROTECTIVE ORDER (MODIFIED BY THE COURT). Signed by Magistrate Judge Howard R. Lloyd on December 4, 2012. (hrllc1, COURT STAFF) (Filed on 12/4/2012)

1
2
3
4
5
6
7
8

SHARTSIS FRIESE LLP
ARTHUR J. SHARTSIS (Bar #51549)
[e-mail]
MARY JO SHARTSIS (Bar #55194)
[e-mail]
ROBERT E. SCHABERG (Bar #81430)
[e-mail]
One Maritime Plaza, 18th Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
GSI TECHNOLOGY, INC.

9

UNITED STATES DISTRICT COURT

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10

NORTHERN DISTRICT OF CALIFORNIA

11

SAN JOSE DIVISION

12
13
14

GSI TECHNOLOGY, INC., a Delaware
corporation,

15

Plaintiff,

16

v.

17

CYPRESS SEMICONDUCTOR
CORPORATION, a Delaware corporation,

18

*E-FILED: December 4, 2012*

Case No. 5:11-cv-03613-EJD
STIPULATED PROTECTIVE ORDER
FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION
AND/OR TRADE SECRETS
(MODIFIED BY THE COURT)

Defendant.

19
20

Plaintiff GSI Technology, Inc. and Defendant Cypress Semiconductor Corporation hereby

21
22

stipulate and agree as follows:

23

1.

PURPOSES AND LIMITATIONS

24

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

25

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

26

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

27

Accordingly, the parties hereby stipulate to and petition the Court to enter the following

28

Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket
Case No.: 5:11-cv03613-EJD

STIPULATED PROTECTIVE ORDER

1

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

2

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

3

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

4

set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file

5

confidential information under seal; Civil Local Rule 79-5 and General Order 62 set forth the

6

procedures that must be followed and the standards that will be applied when a party seeks

7

permission from the Court to file material under seal.

8

2.

9

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10
11

DEFINITIONS
2.1

Challenging Party:

a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

“CONFIDENTIAL” Information or Items: information (regardless of how it is

12

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

13

of Civil Procedure 26(c), including without limitation: (1) information protected pursuant to

14

Federal Rule of Civil Procedure 5.2; (2) information protected by any federal, California, or other

15

privacy statute, such as the California Right to Financial Privacy Act; and (3) information

16

protected by an existing contractual obligation requiring the Designating Party to maintain the

17

confidentiality of the information. Nothing in this paragraph shall preclude a Party from redacting

18

personal information, including social security numbers or dates of birth, as required by

19

governing law or contract or otherwise pursuant to the applicable policies of the Party..

20

2.3

Counsel (without qualifier): Outside Counsel of Record and House Counsel as

21

well as their support staff, including but not limited to attorneys, paralegals, secretaries, law

22

clerks, and investigators.

23

2.4

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

24

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

25

CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”

26
27

2.5

Disclosure or Discovery Material: all items or information, including from any

non-party, regardless of the medium or manner in which it is generated, stored, or maintained

28
Case No.: 5:11-cv03613-EJD

-2STIPULATED PROTECTIVE ORDER

1

(including, among other things, testimony, transcripts, and tangible things), that are produced or

2

generated in disclosures or responses to discovery in this matter.

3

2.6

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

4

the litigation, along with his or her employees and support personnel, who (1) has been retained

5

by a Party or its counsel to serve as an expert witness or as a consultant in this action, (2) is not a

6

past or current employee of a Party or of a Party’s competitor, and (3) at the time of retention, is

7

not anticipated to become an employee of a Party or of a Party’s competitor.

8

2.7

“HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or

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

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

9

Party or Non-Party would create a substantial risk of serious harm that could not be avoided by

11

less restrictive means.

12
13

2.8

include Outside Counsel of Record or any other outside counsel.

14
15

House Counsel: attorneys who are employees of a Party. House Counsel does not

2.9

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

entity not named as a Party.

16

2.10

Outside Counsel of Record: attorneys, as well as their support staff, including but

17

not limited to paralegals, secretaries, law clerks and investigators) who are not employees of a

18

Party but are retained by a Party to represent or advise that Party and have appeared in this action

19

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

20

Party.

21
22
23
24
25

2.11

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).
2.12

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

Material in this action.
2.13

Professional Vendors: persons or entities that provide litigation support services

26

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

27

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

28

subcontractors.
Case No.: 5:11-cv03613-EJD

-3STIPULATED PROTECTIVE ORDER

1
2

2.14

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

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”

3

2.15

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

4

Producing Party.

5

3.

6

SCOPE
3.1

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

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

8

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

9

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

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

7

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

11

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

12

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

13

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

14

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

15

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

16

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

17

Party; and (c) any information obtained outside of litigation with the consent of the Producing

18

Party and not subject to a Non-Disclosure Agreement. Any use of Protected Material at trial shall

19

be governed by a separate agreement or order.

20
21
22

3.2

Nothing in this Order shall prevent or restrict a Producing Party’s own disclosure

or use of its own Protected Material for any purpose.
3.3

Nothing in this Order shall be construed to prejudice any Party’s rights to use any

23

Protected Material in Court or in any Court filing with the written consent of the Designating

24

Party or by order of the Court.

25

3.4

This Order is without prejudice to the right of any Party to seek further or

26

additional protection of any Discovery Material or to modify this Order in any way, including,

27

without limitation, an order that certain matter not be produced at all.

28
Case No.: 5:11-cv03613-EJD

-4STIPULATED PROTECTIVE ORDER

1

3.5

Nothing in this Order shall be construed to prevent Outside Counsel of Record or

2

House Counsel from advising their clients with respect to this case in whole or in part upon

3

Protected Materials, provided the Protected Materials are not disclosed by such Counsel except as

4

provided in this Order.

5

4.

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

7

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

8

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

9

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

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

6

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

11

including the time limits for filing any motions or applications for extension of time pursuant to

12

applicable law.

13

5.

14

DESIGNATING PROTECTED MATERIAL
5.1

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

15

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

16

to limit any such designation to specific material that qualifies under the appropriate standards.

17

To the extent it is practical to do so, the Designating Party must designate for protection only

18

those parts of material, documents, items, or oral or written communications that qualify—so that

19

other portions of the material, documents, items, or communications for which protection is not

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

withdrawing the mistaken designation.
Case No.: 5:11-cv03613-EJD

-5STIPULATED PROTECTIVE ORDER

1

5.2

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

2

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

3

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

4

designated before the material is disclosed or produced.

5

Designation in conformity with this Order requires:

6

(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

8

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

9

EYES ONLY” to each page that contains protected material. If only a portion or portions of the

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

7

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

11

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

12

each portion, the level of protection being asserted.

13

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

14

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

15

material it would like copied and produced. During the inspection and before the designation, all

16

of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL—

17

ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants

18

copied and produced, the Producing Party must determine which documents, or portions thereof,

19

qualify for protection under this Order. Then, before producing the specified documents, the

20

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

21

CONFIDENTIAL—ATTORNEYS’ EYES ONLY”) to each page that contains Protected

22

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

23

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

24

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

25

asserted.

26

(b)

for testimony given in deposition or in other pretrial or trial proceedings,

27

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

28

other proceeding, all protected testimony and specify the level of protection being asserted.
Case No.: 5:11-cv03613-EJD

-6STIPULATED PROTECTIVE ORDER

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

2

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

3

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

4

is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to

5

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

6

portions of the testimony that are appropriately designated for protection within the 21 days shall

7

be covered by the provisions of this Stipulated Protective Order. Pending designation as set forth

8

above,

9

CONFIDENTIAL—ATTORNEY’S EYES ONLY” information. Alternatively, a Designating

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

1

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

11

that

12

CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”

the

the

entire

entire

transcript,

transcript

including

shall

be

exhibits,

treated

as

shall

be

deemed

“CONFIDENTIAL”

as

or

“HIGHLY

“HIGHLY

13

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or

14

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

15

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

16

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

17

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

18

CONFIDENTIAL—ATTORNEYS’ EYES ONLY.”

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

27

actually designated. If any portion of a videotaped deposition is designated, the original and all

28
Case No.: 5:11-cv03613-EJD

-7STIPULATED PROTECTIVE ORDER

1

copies of any videocassette, videotape, DVD or other media container shall be labeled with the

2

appropriate legend.

3

Any Protected Material that is used in the taking of a deposition shall remain subject to

4

the provisions of this Order, along with the transcript pages and videotape of the deposition

5

testimony dealing with such Protected Material. Counsel for any Producing Party shall have the

6

right to exclude from oral depositions, other than the deponent and deponent’s counsel, any

7

person who is not authorized by this Protective Order to receive or access Protected Material

8

based on the designation of such Protected Material. Such right of exclusion shall be applicable

9

only during periods of examination or testimony regarding such Protected Material.

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10

(c)

for information produced in some form other than documentary and for any

11

other tangible items, that the Producing Party affix in a prominent place on the exterior of the

12

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

13

or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” If only a portion or portions

14

of the information or item warrant protection, the Producing Party, to the extent practicable, shall

15

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

16

5.3

Inadvertent Failures to Designate.

If a Producing Party discovers that

17

“CONFIDENTIAL”

18

information or items that it produced were not designated as Protected Material, or that it

19

produced information or items that were designated as Protected Material but had designated

20

them in the incorrect category, the Producing Party may notify all other Parties of the error and

21

identify the affected information or items and their new designation or re-designation. Thereafter,

22

the information or items so designated or re-designated will be treated as Protected Material.

23

After providing such notice, the Producing Party shall provide re-labeled copies of the

24

information or items to the Receiving Party reflecting the change in designation.

or

“HIGHLY

CONFIDENTIAL—ATTORNEYS’

EYES

ONLY”

25

A timely corrected inadvertent failure to designate qualified information or items does not,

26

standing alone, waive the Designating Party’s right to secure protection under this Order for such

27

material. Upon timely correction of a designation, the Receiving Party must make reasonable

28

efforts to assure that the material is treated in accordance with the provisions of this Order. Upon
Case No.: 5:11-cv03613-EJD

-8STIPULATED PROTECTIVE ORDER

1

receiving the Protected Material with the correct confidentiality designation, the Receiving Party

2

shall return or securely destroy, at the Receiving Party’s option, all Discovery Material

3

reasonably accessible to the Receiving Party that was not designated properly. Unauthorized or

4

inadvertent disclosure does not change the status of Discovery Material or waive the right to hold

5

the disclosed document or information as Protected Material.

6

6.

7

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

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

9

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

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

8

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

11

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

12

original designation is disclosed.

13

6.2

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

a timely manner.

27

6.3

28

Judicial Intervention. If the Parties cannot resolve a challenge without court
parties shall comply with the undersigned's Standing Order re Civil
intervention, the Designating Party shall file and serve a motion to retain confidentiality under
Case No.: 5:11-cv03613-EJD

-9STIPULATED PROTECTIVE ORDER

Discovery Disputes
1

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if

2

applicable) within 21 days of the initial notice of challenge or within 14 days of the parties

3

6

agreeing that the meet and confer process will not resolve their dispute, whichever is earlier.
Any Discovery Dispute Joint Report ("DDJR") shall affirm that
Each such motion must be accompanied by a competent declaration affirming that the movant has
have been satisfied.
complied with the meet and confer requirements imposed in the preceding paragraph ^. Failure by
seek judicial intervention
the Designating Party to make such a motion including the required declaration within 21 days (or

7

14 days, if applicable) shall automatically waive the confidentiality designation for each

8

10

challenged designation. The parties may stipulate without court order to amend the time period
seek relief with
within which a motion shall be filed. In addition, the Challenging Party may file a motion
respect to
challenging a confidentiality designation at any time if there is good cause for doing so, including

11

a challenge to the designation of a deposition transcript or any portions thereof. Any motion

12

brought pursuant to this provision must be accompanied by a competent declaration affirming that

13

the movant has complied with the meet and confer requirements imposed by the preceding

14

paragraph.

4
5

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

9

15

The burden of persuasion in any such challenge proceeding shall be on the Designating

16

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

17

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

18
19

sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
seek relief
file a motion to retain confidentiality as described above, all parties shall continue to afford the

20

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

21

designation until the Court rules on the challenge.

22

7.

23

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

24

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

25

defending, or attempting to settle this litigation or related appellate proceeding, and not for any

26

other purpose whatsoever. Such Protected Material may be disclosed only to the categories of

27

persons and under the conditions described in this Order.

When the litigation has been

28
Case No.: 5:11-cv03613-EJD

- 10 STIPULATED PROTECTIVE ORDER

1

terminated, a Receiving Party must comply with the provisions of Section 13 below (FINAL

2

DISPOSITION).

3
4
5

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

6

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

7

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

8

(a)

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

non-attorney employees and contractors of said Outside Counsel of Record to whom it is

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

9

reasonably necessary to disclose the information for this litigation and who have signed the

11

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

12

(b)

current or former officers, directors, and employees (including House

13

Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and

14

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

15

(c)

Experts (as defined in this Order) retained by the Receiving Party to assist

16

in this action, provided that disclosure is only to the extent reasonably necessary to perform such

17

services and provided that such Expert has signed the “Acknowledgment and Agreement to Be

18

Bound” (Exhibit A);

19

(d)

the Court and its personnel;

20

(e)

court reporters, stenographers, videographers retained to record testimony

21

in this action and their staff, professional jury or trial consultants, and Professional Vendors to

22

whom disclosure is reasonably necessary for this litigation and who have signed the

23

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

24

(f)

during their testimony or preparation for their testimony, witnesses in the

25

action to whom disclosure is reasonably necessary and who have signed the “Acknowledgment

26

and Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or

27

ordered by the Court. Pages of transcribed deposition testimony or exhibits to depositions that

28
Case No.: 5:11-cv03613-EJD

- 11 STIPULATED PROTECTIVE ORDER

1

reveal Protected Material must be separately bound by the court reporter and may not be

2

disclosed to anyone except as permitted under this Stipulated Protective Order.

3
4

(g)

custodian or other person who otherwise possessed or knew the information;

5
6

(h)

(i)

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

any mediator who is assigned to hear this matter, and his or her staff, who

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

9
10

mock jurors who have signed the “Acknowledgement and

Agreement to Be Bound” (Exhibit A);

7
8

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

(j)
7.3

any other person with the prior written consent of the Producing Party.

Disclosure of “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY”

11

Information or Items. Unless otherwise ordered by the Court or permitted in writing by the

12

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

13

CONFIDENTIAL—ATTORNEYS’ EYES ONLY” only to:

14

(a)

Persons designated in Sections 7.2(d), (e), (f), (g), (h), (i) and (j);

15

(b)

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

16

attorneys who are principals or employees of said Outside Counsel of Record, provided that such

17

Outside Counsel is not involved in competitive decision-making on behalf of a Party or a

18

competitor of a Party, to whom it is reasonably necessary to disclose the information for this

19

litigation, as well as non-attorney employees of said Outside Counsel of Record to whom it is

20

reasonably necessary to disclose the information for this litigation and who have signed the

21

“Acknowledgement and Agreement to Be Bound” that is attached hereto as Exhibit A;

22

(c)

Designated House Counsel of the Receiving Party, (1) who have no

23

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

24

this litigation, (3) who have signed the “Acknowledgment and Agreement to Be Bound”

25

(Exhibit A), and (4) as to whom the procedures set forth in Section 7.4(a), below, have been

26

followed;

27
28

(d)

Experts (as defined in this Order) retained by the Receiving Party to assist

in this action, provided that disclosure is only to the extent reasonably necessary to perform such
Case No.: 5:11-cv03613-EJD

- 12 STIPULATED PROTECTIVE ORDER

1

services, that such Expert is not involved in competitive decision-making on behalf of a Party or a

2

competitor of a Party, that such Expert has signed the “Acknowledgment and Agreement to Be

3

Bound” (Exhibit A), and that the procedures set forth in Section 7.4(b) below have been followed;

4

and

5
6
7

(e)

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

custodian or other person who otherwise possessed or knew the information.
7.4

Procedures

for

Approving

or

Objecting

to

Disclosure

of

“HIGHLY

8

CONFIDENTIAL—ATTORNEYS’ EYES ONLY” Information or Items to Designated House

9

Counsel or Experts.

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10

(a)

Unless otherwise ordered by the Court or agreed to in writing by the

11

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

12

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

13

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

14

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

15

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

16

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

17

involved, or may become involved, in any competitive decision-making.

18

(b)

Unless otherwise ordered by the Court or agreed to in writing by the

19

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

20

information or item that has been designated “HIGHLY CONFIDENTIAL—ATTORNEYS’

21

EYES ONLY” pursuant to Section 7.3(d) first must make a written request to the Designating

22

Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL—ATTORNEYS’

23

EYES ONLY” information that the Receiving Party seeks permission to disclose to the Expert

24

without disclosure of the identity of the Expert as long as the Expert is not a current officer,

25

director, or employee of a competitor of a Party or anticipated to become one.

26

(c)

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

27

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

28

Designated House Counsel or Expert unless, within 14 days of delivering the request, the Party
Case No.: 5:11-cv03613-EJD

- 13 STIPULATED PROTECTIVE ORDER

1

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

2

detail the grounds on which it is based.

3
4
5
6
7

(d)

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
parties
agreement within seven days of the written objection. If no agreement is reached, the Party
shall comply with the undersigned's Standing Order re Civil Discovery Disputes.
seeking to make the disclosure to Designated House Counsel or Expert may file a motion as

9

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

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

8

provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order
DDJR
62, if applicable) seeking permission from the Court to do so. Any such motion must describe the

House Counsel or Expert is reasonably necessary, assess the risk of harm that the disclosure

11

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

12

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

13

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

14

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

15

approve the disclosure.

16

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

17

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

18

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

19

Material to its Designated House Counsel or Expert.

20
21

8.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
OTHER LITIGATION

22

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

23

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

24

“HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” that Party must:

25
26
27
28

(a)

within three business days notify in writing the Designating Party. Such

notification shall include a copy of the subpoena or court order;
(b)

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

issue in the other litigation that some or all of the material covered by the subpoena or order is
Case No.: 5:11-cv03613-EJD

- 14 STIPULATED PROTECTIVE ORDER

1

subject to this Protective Order.

2

Protective Order; and

3
4

(c)

Such notification shall include a copy of this Stipulated

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

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

6

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

7

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” before a

8

determination by the court from which the subpoena or order issued, unless the Party has obtained

9

the Designating Party’s permission. The Designating Party shall bear the burden and expense of

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

5

seeking protection in that court of its Protected Material, and nothing in these provisions should

11

be construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful

12

directive from another court. See Paragraph 14.

13
14

9.

15

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-

16

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

17

ATTORNEYS’ EYES ONLY.” Such information produced by Non-Parties in connection with

18

this litigation is protected by the remedies and relief provided by this Order. Nothing in these

19

provisions should be construed as prohibiting a Non-Party from seeking additional protections.

20

(b)

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

21

produce a Non-Party’s confidential information in its possession or control, and the Party is

22

subject to an agreement with the Non-Party not to produce the Non-Party’s confidential

23

information, then the Party shall:

24

1.

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

25

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

26

Party;

27
28
Case No.: 5:11-cv03613-EJD

- 15 STIPULATED PROTECTIVE ORDER

1

2.

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

2

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

3

description of the information requested; and

4
5

3.

make the information requested available for inspection by the

Non-Party.

6

(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

8

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

9

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

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

7

in its possession or control that is subject to the confidentiality agreement with the Non-Party

11

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

12
13

bear the burden and expense of seeking protection in this Court of its Protected Material.See
Paragraph 14.
10.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21
22

11.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
PROTECTED MATERIAL

23

The inadvertent production of material subject to a claim of attorney-client privilege, work

24

product protection or other privilege or protection shall not constitute automatic waiver of such

25

privilege or protection pursuant to Federal Rule of Evidence 502. When a Producing Party gives

26

notice to a Receiving Party that certain inadvertently produced material is subject to a claim of

27

privilege or other protection, the obligations of the Receiving Party are those set forth in Federal

28

Rule of Civil Procedure 26(b)(5)(B).
Case No.: 5:11-cv03613-EJD

This provision is not intended to modify whatever

- 16 STIPULATED PROTECTIVE ORDER

1

procedure may be established in an e-discovery order that provides for production without prior

2

privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the parties

3

reach an agreement on the effect of disclosure of a communication or information covered by the

4

attorney-client privilege or work product protection, the parties may incorporate their agreement

5

in the stipulated protective order submitted to the Court.

6

12.

7
8
9

MISCELLANEOUS
12.1

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

seek its modification by the Court in the future.
12.2

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

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10

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

11

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

12

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

13

covered by this Protective Order.

14

12.3

Filing Protected Material. Without written permission from the Designating Party

15

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

16

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

17

Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected

18

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

19

specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a

20

sealing order will issue only upon a request establishing that the Protected Material at issue is

21

privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a

22

Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule

23

79-5(d) and General Order 62 is denied by the Court, then the Receiving Party may file the

24

Protected Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise

25

instructed by the Court.

26

12.4

Termination of the Action and Retention of Jurisdiction. The Parties agree that the

27

terms of this Protective Order shall survive and remain in effect after the Final Disposition of this

28

action as defined in Section 4 (DURATION). The Court shall retain jurisdiction after Final
Case No.: 5:11-cv03613-EJD

- 17 STIPULATED PROTECTIVE ORDER

1

Disposition to hear and resolve any disputes arising out of this Protective Order for a period of six

2

months.

3

12.5

Successors. This Order shall be binding upon the Parties hereto, their attorneys,

4

and their successors, executors, personal representatives, administrators, legal representatives,

5

assigns, subsidiaries, divisions, employees, agents, retained consultants and experts, and any

6

persons or organizations over which they have direct control.

7

12.6

Modification by Court. This Order is subject to further court order based upon

8

public policy or other considerations, and the Court may modify this Order sua sponte in the

9

interests of justice. The United States District Court for the Northern District of California is

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10

responsible for the interpretation and enforcement of this Order.

11

Protected Material, however designated, produced under the protection of this Order shall be

12

resolved by the United States District Court for the Northern District of California.

13

12.7

All disputes concerning

Discovery Rules Remain Unchanged. Identification of any individual pursuant to

14

this Order does not make that individual available for deposition or any other form of discovery

15

outside of the restrictions and procedures of the Federal Rules of Civil Procedure, the Local Rules

16

for the United States District Court for the Northern District of California, or the Court’s own

17

orders.

18

13.

FINAL DISPOSITION

19

Within 60 days after the final disposition of this action, as defined in Section 4

20

(DURATION), each Receiving Party must return all Protected Material to the Producing Party or

21

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

22

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

23

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

24

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

25

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

26

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

27

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

28

or capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled
Case No.: 5:11-cv03613-EJD

- 18 STIPULATED PROTECTIVE ORDER

1

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

2

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

3

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

4

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

5

subject to this Protective Order as set forth in Section 4.*

6
7

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED:

November 1, 2012

/s/ Mary Jo Shartsis
Mary Jo Shartsis
Shartsis Friese LLP
Attorneys for Plaintiff GSI Technology, Inc.

DATED:

November 1, 2012

/s/ Lee H. Rubin
Lee H. Rubin
Mayer Brown LLP
Attorneys for Defendant
Cypress Semiconductor Corporation

8
9

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10
11
12
13
14

AS MODIFIED BY THE COURT,
PURSUANT TO STIPULATION,^ IT IS SO ORDERED.

15

4
DATED: December ___, 2012

16

Howard R. Lloyd
United States Magistrate Judge

17
18
19
20

*14. In the event of any discovery or disclosure dispute, the parties and any
affected non-parties shall comply with the undersigned's Standing Order re
Civil Discovery Disputes.

21
22
23
24
25
26
27
28
Case No.: 5:11-cv03613-EJD

- 19 STIPULATED PROTECTIVE ORDER

1

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2
I,

3

__________________________________________________________________

[name and full address and telephone number], 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 __________ in the case of GSI

7

Technology, Inc. v. Cypress Semiconductor Corporation, Case No. 5:11-cv-03613-EJD. I agree

8

to comply with and to be bound by all the terms of this Stipulated Protective Order and I

9

understand and acknowledge that failure to so comply could expose me to sanctions and

10
S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

4

punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner

11

any information or item that is subject to this Stipulated Protective Order to any person or entity

12

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 the

14

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

15

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

16

I hereby appoint ____________________ [name and full address and telephone number]

17

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

18

related to enforcement of this Stipulated Protective Order.

19

Date:

20

City and State where sworn and signed:

21

Printed Name:

22

Signature:

23
24
25
26
27
28
Case No.: 5:11-cv03613-EJD

STIPULATED PROTECTIVE ORDER

1

DECLARATION UNDER CIVIL LOCAL RULE 5.1

2

I, Mary Jo Shartsis, am the ECF User whose ID and password are being used to file this

3

Stipulated Protective Order For Litigation Involving Patents, Highly Sensitive Confidential

4

Information And/Or Trade Secrets. In compliance with Civil Local Rule 5.1(i), I hereby attest

5

that I have the concurrence of each of the signatories indicated by a “conformed” signature (/s/)

6

within this e-filed document.

7

DATED: November 1, 2012

8
9

/s/ Mary Jo Shartsis
MARY JO SHARTSIS

8301\001\1834408.4

S HARTSIS F RIESE LLP
ONE MARITIME PLAZA
EIGHTEENTH FLOOR
SAN FRANCISCO, CA 94111

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Case No.: 5:11-cv03613-EJD

- 21 STIPULATED PROTECTIVE ORDER