St. Paul Mercury Insurance Company v. Tessera, Inc.

Filing 20

STIPULATION AND PROTECTIVE ORDER - CONFIDENTIAL DESIGNATION ONLY, re 19 . Signed by Judge Ronald M. Whyte on 7/11/2012.(rmwlc1, COURT STAFF) (Filed on 7/11/2012)

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SEDGWICK LLP
Bruce D. Celebrezze (State Bar No. 102181)
[e-mail]
Matthew C. Lovell (State Bar No. 189728)
[e-mail]
Dean J. McElroy (State Bar No. 213132)
[e-mail]
333 Bush Street, 30th Floor
San Francisco, CA 94104-2834
Telephone:
415.781.7900
Facsimile:
415.781.2635
Attorneys for Plaintiff ST. PAUL MERCURY
INSURANCE COMPANY

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CONNOR, FLETCHER & WILLIAMS LLP
Michael R. Williams (State Bar No. 192222)
[e-mail]
Shiry Tannenbaum (State Bar No. 261583)
[e-mail]
2211 Michelson Drive, Suite 1100
Irvine, CA 92612
Telephone:
949.622.2600
Facsimile:
949.622.2626
Attorneys for Defendant and Counterclaimant
TESSERA, INC.

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ST. PAUL MERCURY INSURANCE
COMPANY,
Plaintiff,

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v.

Case No. 5:12-cv-1827 RMW
STIPULATION AND PROTECTIVE
ORDER - CONFIDENTIAL
DESIGNATION ONLY

TESSERA, INC.,
Defendant.
In order to facilitate the exchange of information and documents that may be subject to
confidentiality limitations on disclosure due to federal laws, state laws, and privacy rights, the
STIPULATION AND PROTECTIVE ORDER
- CONFIDENTIAL DESIGNATION ONLY

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N.D. Cal. Case No. 5:12-cv-1827 RMW

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Parties (as defined in Paragraph 1 below) to the above-captioned matter, by and through their

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respective counsel of record, stipulate as follows:

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1.

In this Stipulation and Protective Order, the words set forth below shall have the

following meanings:
a.

“Proceeding” means the above-entitled proceeding (U.S. Dist. Ct., N.D.

Cal., Case No. 5:12-cv-1827 RMW).
b.

“Court” means the Honorable Ronald M. Whyte, or any other magistrate

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judge or district judge to which this Proceeding may be assigned, including Court staff

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participating in such proceedings.

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c.

“Confidential” means any information that is in the possession of a

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Designating Party who believes in good faith that such information is entitled to confidential

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treatment under applicable law.

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d.

“Confidential Materials” means any Documents, Testimony, or

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Information (as defined below) designated as “Confidential” pursuant to the provisions of this

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Stipulation and Protective Order.

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e.

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“Designating Party” means the Party that designates Materials as

“Confidential.”
f.

“Disclose” or “Disclosed” or “Disclosure” means to reveal, divulge, give,

or make available Materials, or any part thereof, or any information contained therein.
g.

“Documents” means (i) any “Writing,” “Original,” and “Duplicate” as

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those terms are defined Rule 34(a) of the Federal Rules of Civil Procedure and Rule 1001 of the

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Federal Rules of Evidence, which have been produced in this Proceeding by any person, and

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(ii) any copies, reproductions, or summaries of all or any part of the foregoing.

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h.

“Information” means the content of any Documents or Testimony.

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i.

“Party” or “Parties” shall mean the signatories to this Stipulation and

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Protective Order, St. Paul Mercury Insurance Company (“St. Paul”) and Tessera, Inc.,

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(“Tessera”) individually or collectively.

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j.

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“Testimony” means all depositions, declarations or other testimony taken

or used in this Proceeding.
2.

The Designating Party shall have the right to designate as “Confidential” any

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Documents, Testimony, or Information that the Designating Party in good faith believes to

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contain non-public information that is entitled to confidential treatment under applicable law.

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3.

The entry of this Stipulation and Protective Order does not alter, waive, modify,

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or abridge any right, privilege or protection otherwise available to any Party with respect to the

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discovery of matters, including but not limited to any Party’s right to assert the attorney-client

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privilege, the work product doctrine, or other privileges, or any Party’s right to contest any such

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assertion. Furthermore, St. Paul has agreed to participate in Tessera’s defense of the action

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entitled Powertech Technology Inc. v. Tessera, Inc., U.S.D.C. N.D. Cal. Case No. 4:11-cv-

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06121-CW (the “PTI v. Tessera Action”), under a reservation of rights. The Parties anticipate

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that in the course of this action, it may become reasonably necessary for Tessera to disclose

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Information, Documents, and/or Testimony, including potentially privileged or confidential

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Information, Documents, and/or Testimony, to St. Paul for the purpose, in whole or in part, of

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permitting and facilitating St. Paul’s participation in its defense of the PTI v. Tessera Action.

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Accordingly, the production of Information, Documents, or Testimony by Tessera to St. Paul in

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this action shall not alter, waive, modify, or abridge any attorney-client privilege, work product

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protection, confidentiality, or trade secret protection applicable to such Information,

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Documents, or Testimony.

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4.

Any Documents, Testimony or Information to be designated as “Confidential”

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must be clearly so designated before the Document, Testimony or Information is Disclosed or

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produced. The “Confidential” designation should not obscure or interfere with the legibility of

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the designated Information.

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a.

For Documents (apart from transcripts of depositions or other pretrial or

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trial proceedings), the Designating Party must affix the legend “Confidential” on each page of

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any Document containing such designated Confidential Material.

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b.

For Testimony given in depositions, the Designating Party may either:

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i.

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Identify on the record, before the conclusion of the deposition, all

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“Confidential” Testimony, by specifying all portions of the Testimony that

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qualify as “Confidential;” or
ii.

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Designate the entirety of the Testimony at the deposition as

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“Confidential” (before the deposition is concluded) with the right to identify

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more specific portions of the Testimony as to which protection is sought within

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30 days following receipt of any party’s challenge to the designation of the

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entirety of the Testimony as Confidential. In circumstances where portions of

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the deposition Testimony are designated for protection, the transcript pages

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containing “Confidential” Information may be separately bound by the court

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reporter, who must affix to the top of each page the legend “Confidential,” as

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instructed by the Designating Party.

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c.

For Information produced in some form other than Documents, and for

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any other tangible items, including, without limitation, compact discs or DVDs, the Designating

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Party must affix in a prominent place on the exterior of the container or containers in which the

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Information or item is stored the legend “Confidential.” If only portions of the Information or

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item warrant protection, the Designating Party, to the extent practicable, shall identify the

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“Confidential” portions.

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5.

The inadvertent production by any of the undersigned Parties or non-Parties to

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the Proceeding of any Document, Testimony, or Information in this Proceeding without a

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“Confidential” designation shall be without prejudice to any claim that such item is

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“Confidential,” and such Party shall not be held to have waived any rights by such inadvertent

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production. In the event that any Document, Testimony, or Information that is subject to a

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“Confidential” designation is inadvertently produced without such designation, the Party that

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inadvertently produced the document shall give written notice of such inadvertent production

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within twenty (20) days of discovery of the inadvertent production, together with a further copy

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of the subject Document, Testimony or Information designated as “Confidential” (the

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“Inadvertent Production Notice”). Upon receipt of such Inadvertent Production Notice, the
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Party that received the inadvertently produced Document, Testimony, or Information shall

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promptly destroy the inadvertently produced Document, Testimony, or Information and all

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copies thereof, or, at the expense of the producing Party, return such Document, Testimony, or

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Information together with all copies thereof to counsel for the producing Party and shall retain

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only the “Confidential” designated Materials. Should the receiving Party choose to destroy

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such inadvertently produced Document, Testimony, or Information, the receiving Party shall

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notify the producing Party in writing of such destruction within ten (10) days of receipt of

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written notice of the inadvertent production. This provision is not intended to apply to any

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inadvertent production of any Information protected by the attorney-client or work product

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privileges. In the event that this provision conflicts with any applicable law regarding waiver of

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confidentiality through the inadvertent production of Documents, Testimony, or Information,

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such law shall govern.

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6.

In the event that counsel for a Party receiving Documents, Testimony, or

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Information designated as “Confidential” objects to such designation with respect to any or all

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of such items, said counsel shall advise counsel for the Designating Party, in writing, of such

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objections, the specific Documents, Testimony, or Information to which each objection pertains,

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and the specific reasons and support for such objections (the “Designation Objections”).

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Counsel for the Designating Party shall have thirty (30) days from receipt of the written

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Designation Objections to either (a) agree in writing to de-designate Documents, Testimony, or

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Information pursuant to any or all of the Designation Objections and/or (b) file a motion with

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the Court seeking to uphold any or all designations on Documents, Testimony, or Information

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addressed by the Designation Objections (the “Designation Motion”). Pending a resolution of

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the Designation Motion by the Court, any and all existing designations on the Documents,

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Testimony, or Information at issue in such Motion shall remain in place. The Designating Party

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shall have the burden on any Designation Motion of establishing the applicability of its

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“Confidential” designation. In the event that the Designation Objections are neither timely

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agreed to nor timely addressed in the Designation Motion, then such Documents, Testimony, or

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Information shall be de-designated in accordance with the Designation Objection applicable to
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such material. Failure to challenge a “Confidential” designation shall not preclude a

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subsequent challenge thereto.

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7.

Access to and/or Disclosure of Confidential Materials designated as

“Confidential” shall be permitted only to the following persons:

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a.

The Court.

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b.

(1) Attorneys of record in the Proceeding and the affiliated attorneys,

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paralegals, clerical, and secretarial staff employed by such attorneys who are actively involved

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in the Proceeding and are not employees of any Party. (2) In-house counsel to the undersigned

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Parties and the paralegal, clerical, and secretarial staff employed by such counsel. Provided,

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however, that each non-lawyer given access to Confidential Materials shall be advised that such

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Materials are being Disclosed pursuant to, and are subject to, the terms of this Stipulation and

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Protective Order and that they may not be Disclosed other than pursuant to its terms.

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c.

Those officers, directors, partners, members, employees, and agents of all

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nondesignating Parties that have been designated by such Parties to assist counsel in the

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prosecution and defense of this Proceeding; provided, however, that prior to the Disclosure of

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Confidential Materials to any such officer, director, partner, member, employee, or agent,

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counsel for the Party making such Disclosure shall deliver a copy of this Stipulation and

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Protective Order to such person, shall explain that such person is bound to follow the terms of

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such Order, and shall secure the signature of such person on a statement in the form attached

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hereto as Exhibit A.

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d.

Court reporters in this Proceeding (whether at depositions, hearings, or

any other proceeding).
e.

Any deposition, trial, or hearing witness in the Proceeding who

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previously has had access to the Confidential Materials, or who is currently or was previously

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an officer, director, partner, member, employee, or agent of an entity that has had access to the

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Confidential Materials.

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f.

Any deposition or non-trial hearing witness in the Proceeding who

previously did not have access to the Confidential Materials; provided, however, that each such
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witness given access to Confidential Materials shall be advised that such Materials are being

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Disclosed pursuant to, and are subject to, the terms of this Stipulation and Protective Order and

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that they may not be Disclosed other than pursuant to its terms.

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g.

Mock jury participants, provided, however, that prior to the Disclosure of

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Confidential Materials to any such mock jury participant, counsel for the Party making such

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Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall

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explain that such person is bound to follow the terms of such Order, and shall secure the

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signature of such person on a statement in the form attached hereto as Exhibit A.

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h.

Outside experts or expert consultants consulted by the undersigned

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Parties or their counsel in connection with the Proceeding, whether or not retained to testify at

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any oral hearing; provided, however, that prior to the Disclosure of Confidential Materials to

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any such expert or expert consultant, counsel for the Party making such Disclosure shall deliver

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a copy of this Stipulation and Protective Order to such person, shall explain its terms to such

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person, and shall secure the signature of such person on a statement in the form attached hereto

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as Exhibit A. It shall be the obligation of counsel, upon learning of any breach or threatened

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breach of this Stipulation and Protective Order by any such expert or expert consultant, to

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promptly notify counsel for the Designating Party of such breach or threatened breach.

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i.

Outside vendors providing counsel for the Parties with litigation support

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services, including for example photocopying, videotaping, translating, preparing exhibits or

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demonstrations, and organizing, storing, or retrieving data in any form or medium, including the

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employees or subcontractors of such outside vendors; provided, however, that prior to the

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Disclosure of Confidential Materials to any such outside vendor, counsel for the Party making

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such Disclosure shall deliver a copy of this Stipulation and Protective Order to such person, shall

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explain its terms to such person, and shall secure the signature of such person on a statement in

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the form attached hereto as Exhibit A.

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j.

Any other person that the Designating Party agrees to in writing.

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8.

Confidential Materials shall be used by the persons receiving them only for the

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purposes of preparing for, conducting, participating in the conduct of, and/or prosecuting and/or

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defending the Proceeding, and not for any business or other purpose whatsoever.

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9.

To the extent that any Party produces Information that previously was produced

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or generated in the PTI v. Tessera Actionand such Information was designated as “Confidential”

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or “Highly Confidential – Attorneys’ Eyes Only” by one or more of the parties to the PTI v.

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Tessera Action then, with respect to such Information, the Parties shall comply in all respects

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with the terms of the Protective Order Regarding Confidential Information entered by the court

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in the PTI v. Tessera Action (the “PTI v. Tessera Action Protective Order”), a copy of which is

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attached to this Order as Exhibit B and incorporated into this Order by this reference. To the

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extent that the provisions of this Order and the PTI v. Tessera Action Protective Order conflict,

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the terms of the PTI v. Tessera Action Protective Order shall govern with respect to Information

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designated as “Confidential” or “Highly Confidential – Attorneys’ Eyes Only” in the PTI v.

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Tessera Action. Without limiting the generality of the preceding sentence, the procedures set

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forth in paragraph 6 of this Order shall not apply to Information designated as “Confidential” or

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“Highly Confidential – Attorneys’ Eyes Only” in the PTI v. Tessera Action. If any documents

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are withheld from St. Paul on the basis that the PTI v. Tessera Action Protective Order

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precludes their production, upon the request of St. Paul, Tessera will ask the parties in the PTI v.

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Tessera Action for permission to produce such document(s) to St. Paul. If Tessera fails to make

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such a request or Tessera’s request is denied by the parties in the PTI v. Tessera Action, then St.

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Paul may seek an order from the Court in the PTI Litigation permitting Tessera to produce the

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requested documents to St. Paul.

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10.

This Order does not apply to any party’s use of:

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a.

Its own documents or information;

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b.

Documents that were in its possession, custody, or control prior to the
filing of this lawsuit;

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c.

Documents or information concerning or reflecting transactions or
communications to which it was a party; or

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d.

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independently of discovery in this action;

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unless and to the extent any such documents or information were (i) exchanged among any of the
Parties before the filing of this lawsuit, and (ii) have been designated as “Confidential” by any
Party to the Proceeding within 30 days after all Parties’ execution of this Stipulation and
Protective Order.

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to the Proceeding, to modify or grant relief from any provision of this Stipulation and Protective
Order.
12.

a.

Operate as an admission by any person that any particular Document,

Testimony or Information marked “Confidential” contains or reflects trade secrets, proprietary,
confidential or competitively sensitive business, commercial, financial or personal information;
or
b.

Prejudice in any way the right of any Party (or any other person subject to

the terms of this Stipulation and Protective Order):
i.

To seek a determination by the Court of whether any particular

Confidential Material should be subject to protection as “Confidential” under the
terms of this Stipulation and Protective Order; or

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ii.

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To seek relief from the Court on appropriate notice to all other

Parties to the Proceeding from any provision(s) of this Stipulation and Protective

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Order, either generally or as to any particular Document, Material, or

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Entering into, agreeing to, and/or complying with the terms of this Stipulation

and Protective Order shall not:

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Any Party to the Proceeding (or other person subject to the terms of this

Stipulation and Protective Order) may ask the Court, after appropriate notice to the other Parties

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Documents or information developed or obtained lawfully and

Information.
13.

Any Party to the Proceeding that has not executed this Stipulation and Protective

Order as of the time it is presented to the Court for signature may thereafter become a Party to

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this Stipulation and Protective Order by its counsel’s signing and dating a copy thereof and

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filing the same with the Court, and serving copies of such signed and dated copy upon the other

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Parties to this Stipulation and Protective Order.

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14.

Any Information that may be produced by a non-Party witness in the Proceeding

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pursuant to subpoena or otherwise may be designated by such non-Party as “Confidential”

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under the terms of this Stipulation and Protective Order, and any such designation by a non-

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Party shall have the same force and effect, and create the same duties and obligations, as if

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made by one of the undersigned Parties hereto. Any such designation shall also function as a

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consent by such producing Party to the authority of the Court in the Proceeding to resolve and

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conclusively determine any motion or other application made by any person or Party with

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respect to such designation, or any other matter otherwise arising under this Stipulation and

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Protective Order. Further, a Party can designate documents produced by third Parties as

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“Confidential.”

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If any person subject to this Stipulation and Protective Order who has custody of

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any Confidential Materials receives a subpoena or other process (“Subpoena”) from any

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government or other person or entity demanding production of Confidential Materials, the

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recipient of the Subpoena shall promptly give notice of the same by electronic mail

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transmission, followed by either express mail or overnight delivery, to counsel of record for the

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Designating Party, and shall furnish such counsel with a copy of the Subpoena. Upon receipt of

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this notice, the Designating Party may, in its sole discretion and at its own cost, move to quash

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or limit the Subpoena, otherwise oppose production of the Confidential Materials, and/or seek

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to obtain confidential treatment of such Confidential Materials from the subpoenaing person or

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entity to the fullest extent available under law. The recipient of the Subpoena may not produce

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any Documents, Testimony, or Information pursuant to the Subpoena prior to the date specified

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for production on the Subpoena.

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16.

Nothing in this Stipulation and Protective Order shall be construed to preclude

either Party from asserting in good faith that certain Confidential Materials require additional

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protection. The Parties shall meet and confer to agree upon the terms of such additional

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protection.

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17.

If, after execution of this Stipulation and Protective Order, any Confidential

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Materials submitted by a Designating Party under the terms of this Stipulation and Protective

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Order is Disclosed by a non-Designating Party to any person other than in the manner

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authorized by this Stipulation and Protective Order, the non-Designating Party responsible for

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the Disclosure shall bring all pertinent facts relating to the Disclosure of such Confidential

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Materials to the immediate attention of the Designating Party.

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18.

This Stipulation and Protective Order is entered into without prejudice to the

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right of any Party to knowingly waive the applicability of this Stipulation and Protective Order

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to any Confidential Materials designated by that Party. If the Designating Party uses

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Confidential Materials in a non-Confidential manner, then the Designating Party shall advise

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counsel for the other Parties that the designation no longer applies.

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19.

Where any Confidential Materials, or Information derived from Confidential

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Materials, is included in any motion or other proceeding governed by Rule 5.2 of the Federal

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Rules of Civil Procedure, Civil Local Rule 79-5, or General Order No. 62, the party shall follow

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those rules. If Confidential Materials or Information derived from Confidential Materials are

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submitted to or otherwise Disclosed to the Court in connection with discovery motions or other

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proceedings not governed by Rule 5.2 of the Federal Rules of Civil Procedure, Civil Local Rule

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79-5, or General Order No. 62, the same shall be separately filed under seal with the clerk of the

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Court in an envelope marked: “CONFIDENTIAL – FILED UNDER SEAL PURSUANT TO

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PROTECTIVE ORDER AND WITHOUT ANY FURTHER SEALING ORDER REQUIRED.”

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20.

The Parties shall meet and confer regarding the procedures for use of

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Confidential Materials at any hearing or at trial and, if any Party seeks to protect the use of such

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Confidential Materials to any greater degree than that protection afforded by Rule 5.2 of the

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Federal Rules of Civil Procedure, Civil Local Rule 79-5, or General Order No. 62, or any other

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order of this Court, such party may move the Court for entry of an appropriate order.

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21.

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Nothing in this Stipulation and Protective Order shall affect the admissibility into

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evidence of Confidential Materials, or abridge the rights of any person to seek judicial review or

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to pursue other appropriate judicial action with respect to any ruling made by the Court

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concerning the issue of the status of Confidential Materials.
22.

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This Stipulation and Protective Order shall continue to be binding after the

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conclusion of this Proceeding and all subsequent proceedings arising from this Proceeding,

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except that a Party may seek the written permission of the Designating Party or may move the

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Court for relief from the provisions of this Stipulation and Protective Order. To the extent

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permitted by law, the Court shall retain jurisdiction to enforce, modify, or reconsider this

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Stipulation and Protective Order, even after the Proceeding is terminated.
23.

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Within thirty (30) days after the settlement or other termination of the

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Proceeding, the undersigned Parties shall confirm to the Designating Parties that they have

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destroyed all Confidential Materials and all copies thereof (except that counsel for each Party

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may maintain in its files, in continuing compliance with the terms of this Stipulation and

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Protective Order, all work product, and two copies of each pleading filed with the Court,

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discovery response, deposition transcript, and deposition exhibit).
24.

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After this Stipulation and Protective Order has been signed by counsel for all

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Parties, it shall be presented to the Court for entry. Counsel agree to be bound by the terms set

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forth herein with regard to any Confidential Materials that have been produced before the Court

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signs this Stipulation and Protective Order.
25.

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The Parties and all signatories to the Certification attached hereto as Exhibit A

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agree to be bound by this Stipulation and Protective Order pending its approval and entry by the

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Court. In the event that the Court modifies this Stipulation and Protective Order, or in the event

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that the Court enters a different Protective Order, the Parties agree to be bound by this

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Stipulation and Protective Order until such time as the Court may enter such a different Order.

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It is the Parties’ intent to be bound by the terms of this Stipulation and Protective Order pending

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its entry so as to allow for immediate production of Confidential Materials under the terms

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herein.
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This Stipulation and Protective Order may be executed in counterparts, and a facsimile

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or electronic copy of a signature page shall have the same force and effect as an original

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signature page.

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DATED: July 9, 2012

SEDGWICK LLP

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By: /s/ Dean J. McElroy
Bruce D. Celebrezze
Matthew C. Lovell
Dean J. McElroy
Attorneys for Plaintiff ST. PAUL MERCURY
INSURANCE COMPANY

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DATED: July 9, 2012

CONNOR, FLETCHER & WILLIAMS LLP

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By: /s/ Michael R. Williams
Michael R. Williams
Shiry Tannenbaum
Attorneys for Defendant TESSERA, INC.

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ORDER

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GOOD CAUSE APPEARING, the Court hereby approves this Stipulation and Protective
Order.
IT IS SO ORDERED.
Dated: ______________

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UNITED STATES DISTRICT JUDGE

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EXHIBIT A

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CERTIFICATION RE CONFIDENTIAL DISCOVERY MATERIALS

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I hereby acknowledge that I, ___________________________________[NAME],

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______________________________________________ [POSITION AND EMPLOYER], am

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about to receive Confidential Materials supplied in connection with the Proceeding, United

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States District Court, Northern District of California, Case No. CV 12 1827 RMW. I certify that

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I understand that the Confidential Materials are provided to me subject to the terms and

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restrictions of the Stipulation and Protective Order filed in this Proceeding. I have been given a

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copy of the Stipulation and Protective Order; I have read it, and I agree to be bound by its terms.

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I understand that Confidential Materials, as defined in the Stipulation and Protective

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Order, including any notes or other records that may be made regarding any such materials, shall

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not be Disclosed to anyone except as expressly permitted by the Stipulation and Protective

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Order. I will not copy or use, except solely for the purposes of this Proceeding, any Confidential

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Materials obtained pursuant to this Protective Order, except as provided therein or otherwise

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ordered by the Court in the Proceeding.

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I further understand that I am to retain all copies of all Confidential Materials provided to

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me in the Proceeding in a secure manner, and that all copies of such Materials are to remain in

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my personal custody until termination of my participation in this Proceeding, whereupon the

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copies of such Materials will be returned to counsel who provided me with such Materials.

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I declare under penalty of perjury, pursuant to 28 U.S.C. §1746 that the foregoing is true

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and correct. Executed this _____ day of ______, 2012, at __________________.

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DATED:

BY:

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_________________________________
Signature
Title
Address_____________________
City, State, Zip
Telephone Number

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STIPULATION AND PROTECTIVE ORDER
- CONFIDENTIAL DESIGNATION ONLY

-1-

N.D. Cal. Case No. 5:12-cv-1827 RMW

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