Becker et al v. Skype Inc.

Filing 66

STIPULATED PROTECTIVE ORDER (MODIFIED BY THE COURT) re 42 Stipulation, filed by Skype Inc., Microsoft Corporation. Signed by Magistrate Judge Howard R. Lloyd on 1/3/2014. (hrllc1, COURT STAFF) (Filed on 1/3/2014)

2
3
4
5

6
7

8

9

10
11
12
13

14

*E-Filed: January 3, 2014*

RobertS. Ams (#65071, [e-mail])
Jonathan E. Davis (#191346, [e-mail])
Steven R. Weinmann (#190956, [e-mail])
THE ARNS LAW FIRM
515 Folsom Street, 3rd Floor
San Francisco, CA 94105
Tel:
[phone]
Fax: [phone]
Jonathan M. Jaffe (#267012, [e-mail])
JONATHAN JAFFE LAW
3055 Hillegass Avenue
Berkeley, CA 94705
Tel:
(51 0) 725-4293
Fax: [phone]
Attorneys for Plaintiffs
Joseph E. Addiego III
(#169522, [e-mail])
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendants
Skype Inc. and Microsoft Corporation

15
16

UNITED STATES DISTRICT COURT
17

NORTHERN DISTRICT OF CALIFORNIA

18

SAN JOSE DIVISION

19

20
21

CANTON BECKER, JOSEPHINE ASPLUND,
and DARRIN WESLEY, individually and on
behalf of all others similarly situated,

22
23

24
25

Plaintiffs,

v.
SKYPE INC., a Delaware Corporation;
MICROSOFT CORPORATION, and DOES
1-100,

26

Defendants.
27

28
-1-

Stipulated Protective Order
Case No. C-12-06477 EJD

)
)

Case No. 12-cv-06477 EJD (HRL)

)
)
)
)
)
)
)
)
)

STIPULATED PROTECTIVE
ORDER FOR LITIGATION
INVOLVING HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION
AND/OR TRADE SECRETS
Judge:
Hon. Edward J. Davila
Courtroom:
4

(MODIFIED BY THE COURT)

1.
2

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

3

confidential, proprietary, or private information for which special protection from public
4

disclosure and from use for any purpose other than prosecuting this litigation may be
5

warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the
6

following Stipulated Protective Order. The parties acknowledge that this Order does not confer
7

blanket protections on all disclosures or responses to discovery and that the protection it affords
8
9

10
II

12

from public disclosure and use extends only to the limited information or items that are entitled
to confidential treatment under the applicable legal principles. The parties further
acknowledge, as set forth in Section 13.3, below, that this Stipulated Protective Order does not
entitle them to file confidential information under seal; Civil Local Rule 79-5 and General

13

Order 62 setsforth the procedures that must be followed and the standards that will be applied

14

when a party seeks permission from the court to file material under seal.

15

2.

16
17
18

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

19

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

20

Rule of Civil Procedure 26(c).

21

22
23

2.3

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

well as their support staff).

2.4

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

24

that it produces in disclosures or in responses to discovery as "CONFIDENTIAL" or

25

"HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY".

26
27

2.5

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

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

28
-2-

Stipulated Protective Order

Case No. C-12-06477 EJD

things, documents, interrogatory responses, responses to requests for admission, testimony,
2

transcripts, and tangible things), that are produced or generated in disclosures or responses to
3

discovery in this matter.
4

2.6

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

5

to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness
6

or as a consultant in this action, (2) is not a past or current employee of a Party or of a Party's
7

8

9
10
11

competitor, and (3) at the time of retention, is not, in good faith, reasonably anticipated to
become an employee of a Party or of a Party's competitor.

2.7

"HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" Information or

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

12

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

13

less restrictive means.

14 .

2.8

House Counsel: attorneys (and their support staff) who are employees of a party

15

to this action. House Counsel does not include Outside Counsel of Record or any other outside

16

counsel.

17
18

19

2.9

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

legal entity not named as a Party to this action.
2.10

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

20

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

21

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

22

that party.

23

24
25
26

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.

27

28
-3-

Stipulated Protective Order

Case No. C-12-06477 EJD

2.13

Professional Vendors: persons or entities that provide litigation support services

2

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
3

organizing, storing, or retrieving data in any form or medium) and their employees and
4

subcontractors.
5

2.14

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

6

"CONFIDENTIAL" or"HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY."
7

2.15

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

8

9
10
11
12

Producing Party.

3.

SCOPE

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

13

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

14

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

15

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

16

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

17

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

18

Receiving Party as a result of publication not involving a violation of this Order; and (b) any

19

information known to the Receiving Party prior to the disclosure or obtained by the Receiving

20

Party after the disclosure from a source who obtained the information lawfully and under no

21

obligation of confidentiality to the Designating Party. Any use of Protected Material at trial

22

shall be governed by a separate agreement or order. The Parties agree that this Order does not

23

sufficiently address the protection of source code. If source code is sought in discovery, the

24

Parties will seek an additional Stipulated Order to protect disclosure of source code

25

information.

26
27

28
-4-

Stipulated Protective Order

Case No. C-12-06477 EJD

4.

DURATION

2

Even after final disposition ofthis litigation, the confidentiality obligations imposed by
3

this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
4

order otherwise directs. Final disposition shall be deemed to be the later of (I) dismissal of all
5

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
6

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
7

action, including the time limits for filing any motions or applications for extension of time
8
9

10
II

12

pursuant to applicable law. After the final disposition of this action, this court will retain
jurisdiction to enforce the terms of this protective order. for a period of six months.

5.

DESIGNATING PROTECTED MATERIAL
5.1

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

been made for an improper purpose (e.g., to uunecessarily encumber or retard the case

21

development process or to impose uunecessary expenses and burdens on other parties) may

22

expose the Designating Party to sanctions upon sufficient findings as required under existing

23

provisions of the Federal Rules of Civil Procedure.

24

25
26
27

. If it comes to a Designating Party's attention that information or items that it designated
for protection do not qualify for protection at all or do not qualify for the level of protection
initially asserted, that Designating Party must promptly notify all other parties that it is
withdrawing the mistaken designation.

28
-5Stipulated Protective Order

Case No. C-12-06477 EJD

5.2
2

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

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

3

ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be
4

clearly so 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

7

8

9
10
II
12

13

documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that
the Producing Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIALATTORNEYS' EYES ONLY" to each page that contains protected material. For documents
produced in native format, the Producing Party shall append "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL" to the filename.
A Party or Non-Party that makes original documents or materials available for

14 ,

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

15

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

16

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

17

CONFIDENTIAL- ATTORNEYS' EYES ONLY". After the inspecting Party has identified

18

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

19

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

20

the specified documents, the Producing Party must affix the appropriate legend

21

("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" to each

22

page that contains Protected Material.

23

24

25
26
27

(b)

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

that the Designating Party identifies on the record or up to 30 days after completion of the
deposition, whether protection is sought and the level of protection being asserted. Only those
portions of the testimony that are appropriately designated for protection within the 30 days
shall be covered by the provisions ofthis Stipulated Protective Order. If no designation is

28
-6Stipulated Protective Order

Case No, C-12-06477 EJD

made at the deposition, the transcript shall be treated as "HIGHLY CONFIDENTIAL2

ATTORNEYS' EYES ONLY" during the 30-day period referenced above. Alternatively, a

3

Designating Party may specify, at the deposition or up to 30 days afterwards, that the entire
4

transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL5

ATTORNEYS' EYES ONLY." After the expiration of that period, the transcript shall be
6

treated only as actually designated.
7

Parties shall give the other parties notice if they reasonably expect a deposition, hearing
8

9
10
II

12

13
14

or other proceeding to include Protected Material so that the other parties can ensure that only
authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound"
(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a
deposition shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL-ATTORNEYS' EYES ONLY."
Transcripts containing Protected Material shall have an obvious legend on the title page

15

that the transcript contains Protected Material. The Designating Party shall inform the court

16

reporter of these requirements.
(c)

17

for information produced in some form other than documentary and for

18

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

19

the container or containers in which the information or item is stored the legend

20

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY". If only

21

a portion or portions of the information or item warrant protection, the Producing Party, to the

22

extent practicable, shall identify the protected portion(s) and specify the level of protection

23

being asserted.

24

25
26
27

5.3

Inadvertent Failures to Designate. If timely cotTected, an inadvertent failure to

designate qualified information or items does not, standing alone, waive the Designating
Party's right to secure protection under this Order for such material. Upon timely correction of
a designation after the incotTect designation is actually discovered by the Designating Party, the

28
-7-

Stipulated Protective Order

Case No. C-12-06477 EJD

Receiving Party must make reasonable efforts to assure that the material is treated in
2

accordance with the provisions of this Order.

3

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS

4

6.1

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

5

confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality
6

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
7

burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
8
9

10
II

12

challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2

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

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

13

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

14

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

15

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

16

challenge in good faith and must begin the process by conferring within 14 days of the date of

17

service of notice. In conferring, the Challenging Party must explain the basis for its belief that

18

the confidentiality designation was not proper and must give the Designating Party an

19

opportunity to review the designated material, to reconsider the circumstances, and, if no

20

change in designation is offered, to explain the basis for the chosen designation. A Challenging

21

Party may proceed to the next stage ofthe challenge process only if it has engaged in this meet

22

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

23

the meet and confer process in a timely marmer.

24

25
26
27

6.3

Judicial Intervention. If the Parties carmot resolve a challenge without court

intervention, the Challenging Party may file a motion challenging a confidentiality designation
parties shall comply with the undersigned's Standing Order re Civil Discovery Disputes.
at any time if there is good cause for doing so, including a challenge to the designation of a
deposition transcript or any portions thereof. Any motion brought pursuant to this provision

28
-8Stipulated Protective Order

Case No. C-12-06477 EJD

2

must be accompanied by a competent declaration affirming that the movant has complied with
Any Discovery Dispute Joint Resolution shall affirm that
the meet and confer requirements imposed by the preceding paragraph. have been met.

3

The burden of persuasion in any such challenge proceeding shall be on the Designating
4

Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
5

unnecessary expenses and burdens on other parties) may expose the Challenging Party to
6

sanctions. All parties shall continue to afford the material in question the level of protection to
7

8

9
10
II

which it is entitled under the Producing Party's designation until the court rules on the
challenge.

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Principles. A Receiving Party and/or Receiving Party's counsel may

12

access and use (only insofar as more specifically provided in this Order) Protected Material that

13

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

14

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

15

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

16

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

17

Section 14 below (FlNAL DISPOSITION).

18

Protected Material must be stored and maintained by Receiving Party and Receiving

19

Party's counsel at a location and in a secure manner 1 that ensures that access is limited to the

20

persons authorized under this Order.

21

7.2

Disclosure of"CONFIDENTIAL" Information or Items. Unless otherwise

22

ordered by the court or permitted in writing by the Designating Party, any information or item

23

designated "CONFIDENTIAL" by the Designating Party shall be disclosed only to:

24

25
26

27
1

28

It may be appropriate under certain circumstances to require the Receiving Party to
store any electronic Protected Material in password-protected form.
-9-

Stipulated Protective Order
Case No. C-12-06477 EJD

(a)

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

2

as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose
3

the information for this litigation;
4

(b)

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

5

Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
6

signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) (for the sake of clarity,
7

the parties agree that "CONFIDENTIAL" information or items shall not be disclosed to the
8

9

named plaintiffs in this action);
(c)

10
11
12

13

Experts (as defined in this Order) of the Receiving Party to whom

disclosure is reasonably necessary for this litigation and who have signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A) and as to whom the procedures
set forth in Section 7.4(a), below, have been followed;

14

(d)

the court and its personnel;

15

(e)

court reporters and their staff, professional jury or trial consultants, and

16

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

17

have signed the "Acknowledgment and Agreement to Be Bound" that is attached hereto as

18

Exhibit A;
(f)

19

during their depositions, witnesses in the action to whom disclosure is reasonably

20

necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise

21

agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to

22

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

23

to anyone except as permitted under this Stipulated Protective Order;

24

25
26
27

(g)

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

custodian or other person who otherwise possessed or knew the information.
7.3

Disclosure of"HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY"

Information or Items: Unless otherwise ordered by the court or permitted in writing by the

28
-10-

Stipulated Protective Order

Case No. C-12-06477 EJD

Designating Party, any information or item designated "HIGHLY CONFIDENTIAL2

ATTORNEYS' EYES ONLY" by the Designating Party shall be disclosed only to:

3

(a)

the Receiving Party's Counsel in this action, as well as employees of

4

said Counsel to whom it is reasonably necessary to disclose the information for this litigation
5

(for the sake of clarity, the parties agree that "HIGHLY CONFIDENTIAL- ATTORNEYS'
6

EYES ONLY" information or items shall not be disclosed to the named plaintiffs in this
7

8

action);
(b)

9
10
II

12

Experts of the Receiving Party (1) to whom disclosure is reasonably

necessary for this litigation, (2) who have signed the "Acknowledgment and Agreement to Be
Bound" (Exhibit A), and (3) as to whom the procedures set forth in Section 7.4(a), below, have
been followed;

13

(c)

the court and its personnel;

14

(d)

court reporters and their staff, professional jury or trial consultants, and

15

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

16

have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and
(e)

17
18

19

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

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES

20

ONLY" information or items may be disclosed to an Expert without disclosure of the identity

21

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

22

a competitor of a Party or anticipated to become one.

23

(a)

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

24

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

25

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

26

any information or item that has been designated "HIGHLY CONFIDENTIAL-

27

ATTORNEYS' EYES ONLY" pursuant to Section 7.3(b) first must make a written request to

28
-IIStipulated Protective Order
Case No. C-12-06477 EJD

the Designating Party that (1) identifies the general categories of"HIGHLY CONFIDENTIAL
2

-ATTORNEYS' EYES ONLY" information that the Receiving Party seeks permission to

3

disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or
4

her primary residence, (3) attaches a copy of the Expert's current resume, (4) identifies the
5

Expert's current employer(s), (5) identifies each person or entity from whom the Expert has
6

received compensation or funding for work in his or her areas of expertise or to whom the
7

expert has provided professional services, including in connection with a litigation, at any time
8
9
10
11

12

during the preceding five years, 2 and (6) identifies (by name and number of the case, filing
date, and location of court) any litigation in connection with which the Expert has offered
expert testimony, including through a declaration, report, or testimony at a deposition or trial,
during the preceding five years.
(b)

13

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

14

Section 7.4(a) may disclose the subject Protected Material to the identified Expert 15 days after

15

making its 7.4(a) disclosure unless, within 14 days of delivering the request, the Party receives

16

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

17

grounds on which it is based.
(c)

18
19

20
21

22
23
24

A Party that receives a timely written objection must meet and confer

with the Designating Party to try to resolve the matter by agreement within seven days of the
Parties may seek judicial relief per the
written objection. If no agreement is reached, the Party seeking to make the disclosure to the
undersigned's Standing Order re Civil Discovery Disputes.
Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local
Rule 79-5 and General Order 62, if applicable) seeking permission from the court to do so.
Discovery Dispute Joint Report
Any such motion must describe the circumstances with specificity, set forth in detail the
reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that

25

26
27

28

2

If the Expert believes any of this information is subject to a confidentiality obligation
to a third-party, then the Expert should provide whatever information the Expert believes can
be disclosed without violating any confidentiality agreements, and the Party seeking to disclose
to the Expert shall be available to meet and confer with the Designating Party regarding any
such engagement.
-12-

Stipulated Protective Order
Case No. C-12-06477 EJD

2

the disclosure would entail, and suggest any additional means that could be used to reduce that
DDJR
risk. In addition, any such motion must be accompanied by a competent declaration describing

3

the parties' efforts to resolve the matter by agreement (i.e., the extent and the content of the
4

meet and confer discussions) and setting forth the reasons advanced by the Designating Party
5

for its refusal to approve the disclosure.
6

In any such proceeding, the Party opposing disclosure to the Expert shall bear the
7

burden of proving that the risk of harm that the disclosure would entail (under the safeguards
8
9

proposed) outweighs the Receiving Party's need to disclose the Protected Material to its Expert.
(d)

IO
II
I2

Notwithstanding the above, Discovery Material may be provided to

experts or consultants only to the extent necessary for such expert or consultant to prepare a
written opinion, to prepare to testify, or to assist counsel or the Parties, provided that such

I3

expert or consultant is using said Discovery Material solely in connection with this Litigation,

I4 .

and further provided that such expert or consultant has previously executed an undertaking in

I5

the form attached hereto as Exhibit A, agreeing in writing to be bound by the terms and

16

conditions of this Stipulation, consenting to the jurisdiction of this Court for purposes of

17

enforcement of the terms of this Stipulation, and agreeing not to disclose or use any Discovery

18

Material for purposes other than those permitted hereunder.

19

8.

20

PROSECUTION BAR
Absent written consent from the Producing Party, any individual who receives access to

21

"HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" information of the opposing

22

party shall not be involved in the prosecution of patents or patent applications relating to the

23

subject matter of the "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY"

24

information he or she received before any foreign or domestic agency, including the United

25
26
27

States Patent and Trademark Office ("the Patent Office"). For purposes of this paragraph,
"prosecution" includes directly or indirectly drafting, amending, advising, or otherwise
affecting the scope or maintenance of patent claims. To avoid any doubt, "prosecution" as used

28
-13Stipulated Protective Order
Case No. C-12-06477 EJD

in this paragraph does not include representing a party challenging a patent before a domestic
2

or foreign agency (including, but not limited to, a reissue protest, ex parte reexamination or
3

inter partes reexamination). This Prosecution Bar shall begin when access to "HIGHLY
4

CONFIDENTIAL- ATTORNEYS' EYES ONLY information is first received by the affected
5

individual and shall end five (5) years after final termination of this action.
6

9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN

7
8
9

10
II

12
13

14

OTHER LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that
compels disclosure of any information or items designated in this action as "CONFIDENTIAL"
or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" that Party must:
(a)

promptly 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

15

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

16

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

17

Protective Order; and

18
19

20

(c)

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

21

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

22

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" before a

23

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

24

obtained the Designating Party's permission. The Designating Party shall bear the burden and

25

expense of seeking protection in that court of its confidential material- and nothing in these

26
27

provisions should be construed as authorizing or encouraging a Receiving Party in this action to
disobey a lawful directive from another court.

28
·14·
Stipulated Protective Order

Case No. C-12-06477 EJD

10.
2

A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN
THIS LITIGATION

3

(a)

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

4

Non-Party in this action and designated as "CONFIDENTIAL" or "HIGHLY
5

CONFIDENTIAL- ATTORNEYS' EYES ONLY". Such information produced by Non6

Parties in connection with this litigation is protected by the remedies and relief provided by this
7

Order. Nothing in these provisions should be construed as prohibiting a Non-Party from
8

seeking additional protections.
9

(b)

10
II

12
13

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

produce a Non-Party's confidential information in its possession, and the Party is subject to an
agreement with the Non-Party not to produce the Non-Party's confidential information, then
the Party shall:

1.

14

promptly notify in writing the Requesting Party and the Non-

15

Party that some or all of the information requested is subject to a confidentiality agreement

16

with a Non-Party;

2.

17

promptly provide the Non-Party with a copy ofthe Stipulated

18

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

19

description of the information requested; and

3.

20
21

22

make the information requested available for inspection by the

Non-Party.
(c)

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

23

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

24

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

25

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

26

information in its possession or control that is subject to the confidentiality agreement with the

27

28
-15-

Stipulated Protective Order
Case No. C-12-06477 EJD

Non-Party before a determination by the court. 3 Absent a court order to the contrary, the Non2

Party shall bear the burden and expense of seeking protection in this court of its Protected

3

Material.
4

11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

5

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
6

Material to any person or in any circumstance not authorized under this Stipulated Protective
7

Order, the Receiving Party must immediately (a) notify in writing the Designating Party ofthe
8

9
10

11

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the
Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of this Order, and (d) request such person or persons to execute the

12

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

13

12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE

14

PROTECTED MATERIAL.

15

If Discovery Material that is subject to a claim of attorney-client privilege, attorney

16

work product protection, or any other applicable privilege is inadvertently produced or

17

disclosed ("Inadvertent Production Material"), such inadvertent production shall in no way

18

prejudice or otherwise constitute a waiver of, or estoppel as to, any claim of attorney-client

19

privilege, attorney work product protection, or other applicable privilege.

20

(a)

If a claim of inadvertent production is made, pursuant to this Stipulated

21

Protective Order, with respect to Discovery Material then in the custody of another Party, that

22

Party shall: (i) refrain from any further examination or disclosure of the claimed Inadvertent

23

Production Material; (ii) promptly make a good-faith effort to return the claimed Inadvertent

24

Production Material and all copies thereof (including sununaries and excerpts) to counsel for

25

the Producing Party, or destroy all such claimed Inadvertent Production Material (including

26
27

28

3

The purpose of this provision is to alert the interested parties to the existence of
confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its
confidentiality interests in this court.
-16Stipulated Protective Order
Case No. C-12-06477 EJD

summaries and excerpts) and certify in writing to that fact; and (iii) not use the Inadvertent
2

Production Material for any purpose until further order of the Court expressly authorizing such

3

use.
4
5

If a dispute arises, the parties shall comply with the undersigned's Standing Order
(b)
A Party may move the Court for an order compelling production of the
re Civil Discovery Disputes. The DDJR shall be filed under seal in compliance with L.R. 79-5
claimed Inadvertent Production Material. The motion shall be filed under seal and shall not

6

assert as a ground for entering such an order the fact or circumstance of the inadvertent
7

production. While such a motion is pending, the Discovery Material in question shall be
8

9

treated in accordance with paragraph 12(a) above.
(c)

10

11
12
13

If a Party, in reviewing Discovery Material it has received from the other

Party or any non-Party, finds anything the reviewing Party believes in good faith may be
Inadvertent Production Material, the Party shall: (i) refrain from any further examination or
disclosure of the potentially Inadvertent Production Material; (ii) promptly identify the material

14 ·

in question to the Producing Party (by document number or other equally precise description);

15

and (iii) give the Producing Party seven (7) days to respond as to whether the material was, in

16

fact, inadvertently produced. If the Producing Party makes a claim of inadvertent production,

17

the provisions of paragraph 12(a) shall apply.

18

13.

19
20
21

MISCELLANEOUS

13.1

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

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

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

22

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

23

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

24

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

25

material covered by this Protective Order.

26
27

13.3

Filing Protected Material. Without written permission from the Designating

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

28
-17Stipulated Protective Order

Case No. C-12-06477 EJD

file in the public record in this action any Protected Material. A Party that seeks to file under
2

seal any Protected Material must comply with Civil Local Rule 79-5 and General Order 62.
3

Protected Material may only be filed under seal pursuant to a court order authorizing the
4

sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 79-5 and
5

General Order 62, a sealing order will issue only upon a request establishing that the Protected
6

Material at issue is privileged, protectable as a trade secret, or otherwise entitled to protection
7
8

9

10
11

12
13

under the law. If a Receiving Party's request to file Protected Material under seal pursuant to
Civil Local Rule 79-5(d) and General Order 62 is denied by the court, then the Receiving Party
may file the Protected Material in the public record pursuant to Civil Local Rule 79-5(e) unless
otherwise instructed by the court.
14.

FINAL DISPOSITION

Within 60 days after the final disposition ofthis action, as defined in Section 4, each

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

Receiving Party has not retained any copies, abstracts, compilations, summaries or any other

22

format reproducing or capturing any of the Protected Material. Notwithstanding this provision,

23

Counsel are entitled to retain an archival copy of all pleadings, motion papers, trial, deposition,

24

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

25

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

26
27

contain Protected Material. Any such archival copies that contain or constitute Protected
Material remain subject to this Protective Order as set forth in Section 4 (DURATION).

28
-18Stipulated Protective Order

Case No. C-12-06477 EJD

IT IS SO STIPULATED.
2
3

DATED: July
4

{k, 2013

THE ARNS LAW FIRM

,........=--~==----------!

5

By:___:::._k---=::--:-------::
·.
6

RobertS. Arns
Jonathan E. Davis
Steven R. Weinmann

7

8

--and--

9

JONATHAN JAFFE LAW

10

/~

II

By:_ _ _

-#--=--~{---::--:---=-:::::---------1

12

Attorneys for Plaintiffs

13

14
IS

DATED: July J!f_, 2013

DAVIS WRIGHT TREMAINE LLP

16
17
18
19

Attorneys for Defendants
20

Skype Inc. and Microsoft Corporation
21
22
23

24
25
26
27

28
-19Stipul ated Protective Order
C~ se No. C-12-06477 EJD

EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

2
3

I,

[print

or

type

4

full
[print

of

name],
or

type

full

5

address], declare under penalty of petjury that I have read in its entirety and understand the

6

Stipulated Protective Order that was issued by the United States District Court for the Northern

7

District of California on _ _ _ _ _ _ _ _ _ [date] in the case of Becker v. Skype, Inc.,

8

Case No. 12-cv-06477-EJD. I agree to comply with and to be bound by all the terms of this

9

10
II

12

Stipulated Protective Order and I understand and acknowledge that failure to so comply could
expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I
will not disclose in any manner any information or item that is subject to this Stipulated
Protective Order to any person or entity except in strict compliance with the provisions of this

13

Order.
14

15
16

I further agree to submit to the jurisdiction of the United States District Court for the Northern
District of California for the purpose of enforcing the terms of this Stipulated Protective Order,

17

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

18

I

hereby

[print

appoint

or

type

full

name]

of

19

[print or type

20

full address and telephone number] as my California agent for service of process in connection

21

with this action or any proceedings related to enforcement of this Stipulated Protective Order.

22
23

Date: _ _ _ __

24

25

City and State where sworn and signed: _ _ _ _ __

26
27

28

Printed name: - - - - - - - - - - - - -20Stipulated Protective Order
Case No. C-12-06477 EJD

1
2
3
4
5
6
7
8
9

DAVIS WRIGHT TREMAINE LLP

10

Joseph E. Addiego III (CA State Bar No. 169522)
DAVIS WRIGHT TREMAINE LLP
505 Montgomery Street, Suite 800
San Francisco, California 94111
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
Karen A. Henry (CA State Bar No. 229707)
DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, California 90017-2566
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
Attorneys for Defendants
SKYPE INC. and MICROSOFT CORPORATION

11
12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15
16
17
18
19
20
21

CANTON BECKER, JOSEPHINE ASPLUND, ) Case No. C-12-06477 EJD
and DARRIN WESLEY, individually and on
)
behalf of all others similarly situated,
) [PROPOSED] ORDER GRANTING
) STIPULATED PROTECTIVE ORDER
Plaintiff,
)
)
v.
)
)
SKYPE INC., a Delaware Corporation;
)
MICROSOFT CORPORATION, and DOES 1- )
20,
)
)
Defendants.
)
)

22
23
24
25
26
27
28
1
[PROPOSED] ORDER
Case No. C-12-06477 EJD
DWT 22311047v1 0025936-001765

1

The Court, having reviewed the parties’ concurrently-filed Stipulated Protective Order for

2

Litigation Involving Highly Sensitive Confidential Information and/or Trade Secrets (“Protective

3

Order”), and good cause appearing therefore, hereby GRANTS the Protective Order.

4
5
6

1/3/14
DATED: July 19, 2013

7

_________________________________________
The Honorable Howard R. Lloyd
Magistrate Judge of the United States District Court
for the Northern District of California

8
9

DAVIS WRIGHT TREMAINE LLP

10
11
12
13
14
15

Submitted by:
DAVIS WRIGHT TREMAINE LLP
865 S. Figueroa Street, Suite 2400
Los Angeles, CA 90017

16
17

By: _______/ s /______________________
Joseph E. Addiego III

18
19

Attorneys for Defendants
SKYPE INC. and MICROSOFT CORPORATION

20
21
22
23
24
25
26
27
28
2
[PROPOSED] ORDER
Case No. C-12-06477 EJD
DWT 22311047v1 0025936-001765