Perkins et al v. LinkedIn Corporation

Filing 46

STIPULATION AND ORDER re 43 Stipulated [Proposed] Protective Order. Signed by Magistrate Judge Howard R. Lloyd on 5/14/2014. (hrllc1, COURT STAFF) (Filed on 5/14/2014)

*E-Filed: May 14, 2014*
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

LARRY C. RUSS (State Bar No. 82760)
[e-mail]
DORIAN S. BERGER (State Bar No. 264424)
[e-mail]
DANIEL P. HIPSKIND (State Bar No. 266763)
[e-mail]
RUSS AUGUST & KABAT
12424 Wilshire Boulevard, 12th Floor
Los Angeles, California 90025
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Plaintiffs
PAUL PERKINS ET AL.
JEROME C. ROTH (State Bar No. 159483)
[e-mail]
ROSEMARIE T. RING (State Bar No. 220769)
[e-mail]
JONATHAN H. BLAVIN (State Bar No. 230269)
[e-mail]
WILLIAM J. EDELMAN (State Bar No. 285177)
[e-mail]
MUNGER, TOLLES & OLSON LLP
560 Mission Street
Twenty-Seventh Floor
San Francisco, California 94105-2907
Telephone:
[phone]
Facsimile:
[phone]
Attorneys for Defendant
LINKEDIN CORPORATION

17
18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20

SAN JOSE DIVISION

21
22
23

PAUL PERKINS, PENNIE SEMPELL, ANN
BRANDWEIN, ERIN EGGERS, CLARE
CONNAUGHTON, JAKE KUSHNER,
NATALIE RICHSTONE, NICOLE CROSBY,
and LESLIE WALL, individually and on
behalf of all other similarly situated,

24
25
26
27
28

Plaintiffs,
vs.
LINKEDIN CORPORATION,
Defendant.

Case No. 13-CV-04303-LHK
STIPULATED [PROPOSED]
PROTECTIVE ORDER
(MODIFIED BY THE COURT)

1

1.

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

2
3

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

4

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

5

the parties hereby stipulate to and petition the court to enter the following Stipulated Protective

6

Order. The parties acknowledge that this Order does not confer blanket protections on all

7

disclosures or responses to discovery and that the protection it affords from public disclosure and

8

use extends only to the limited information or items that are entitled to confidential treatment under

9

the applicable legal principles. The parties further acknowledge, as set forth in Section 13.3, below,

10

that this Stipulated Protective Order does not entitle them to file confidential information under

11

seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that

12

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

13

2.

14
15
16

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

17

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

18

Civil Procedure 26(c).

19
20
21

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 that it

22

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

23

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE

24

CODE”.

25

2.5

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

26

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

27

testimony, transcripts, and tangible things), that are produced or generated in disclosures or

28

responses to discovery in this matter.

2

1

2.6

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

2

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

3

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

4

competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or

5

of a Party’s competitor.

6

2.7

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or

7

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

8

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

9

restrictive means.

10

2.8

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely

11

sensitive “Confidential Information or Items” representing computer code and associated

12

comments and revision histories, formulas, engineering specifications, or schematics that define or

13

otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure

14

of which to another Party or Non-Party would create a substantial risk of serious harm that could

15

not be avoided by

16

less restrictive means.

17
18
19
20
21

2.9

House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.10

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

entity not named as a Party to this action.
2.11

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

22

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

23

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

24
25
26
27
28

2.12

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).
2.13

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

Material in this action.
2.14

Professional Vendors: persons or entities that provide litigation support services

3

1

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

2

storing, or retrieving data in any form or medium) and their employees and subcontractors.
2.15

3

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

4

“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or as

5

“HIGHLY CONFIDENTIAL – SOURCE CODE.”
2.16

6
7
8

Producing Party.
3.

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

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

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 Material; (2) all
copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a
Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a
result of publication not involving a violation of this Order, including
becoming part of the public record through trial or otherwise; and (b) any information known to the
Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from
a source who obtained the information lawfully and under no obligation of confidentiality to the
Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement
or order.
4.

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

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this action, with or without prejudice; and (2) final judgment herein after the
completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,

28

4

1

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

2

applicable law. For a period of six months after final disposition, this Court will retain jurisdiction
to enforce the terms of this order.
5.
DESIGNATING PROTECTED MATERIAL

3
4

5.1

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

5

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

6

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

7

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

8

of material, documents, items, or oral or written communications that qualify – so that other

9

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

10
11

warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown

12

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

13

encumber or retard the case development process or to impose unnecessary expenses and burdens

14

on other parties) expose the Designating Party to sanctions.

15

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

16

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

17

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

18

mistaken designation.

19

5.2

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

20

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

21

Disclosure or Discovery

22

Material that qualifies for protection under this Order must be clearly so designated before the

23

material is disclosed or produced.

24
25

Designation in conformity with this Order requires:
(a) for information in documentary form (e.g., paper or electronic documents, but

26

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party

27

affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES

28

ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains protected

5

1

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

2

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

3

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

4

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

5

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

6

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

7

material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –

8

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

9

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

10

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

11

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

12

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE

13

CODE") to each page that contains Protected Material. If only a portion or portions of the material

14

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

15

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

16

portion, the level of protection being asserted.

17

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the

18

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

19

proceeding, all protected testimony and specify the level of protection being asserted. When it is

20

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

21

appears that substantial portions of the testimony may qualify for protection, the Designating Party

22

may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right

23

to have up to 21 days to identify the specific portions of the testimony as to which protection is

24

sought and to specify the level of protection being asserted. Only those portions of the testimony

25

that are appropriately designated for protection within the 21 days shall be covered by the

26

provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at

27

the deposition or up to 21 days afterwards if that period is properly invoked, that the entire

28

transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –

6

1
2

ATTORNEYS’ EYES ONLY.”
Parties shall give the other parties notice if they reasonably expect a deposition, hearing or

3

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

4

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

5

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

6

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

7

– ATTORNEYS’ EYES ONLY.”

8
9

Transcripts containing Protected Material shall have an obvious legend on the title page that
the transcript contains Protected Material, and the title page shall be followed by a list of all pages

10

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

11

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

12

court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-

13

day period for designation shall be treated during that period as if it had been designated “HIGHLY

14

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After

15

the expiration of that period, the transcript shall be treated only as actually designated.

16

(c) for information produced in some form other than documentary and for any

17

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

18

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

19

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL

20

– SOURCE CODE”. If only a portion or portions of the information or item warrant protection, the

21

Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the

22

level of protection being asserted.

23

5.3

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

24

designate qualified information or items does not, standing alone, waive the Designating Party’s

25

right to secure protection under this Order for such material. Upon timely correction of a

26

designation, the Receiving Party must make reasonable efforts to assure that the material is treated

27

in accordance with the provisions of this Order.

28

7

1
2

6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

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

3

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

4

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

5

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

6

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

7

original designation is disclosed.

8

6.2

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

9

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

10

challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must

11

recite that the challenge to confidentiality is being made in accordance with this specific paragraph

12

of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must

13

begin the process by conferring directly (in voice to voice dialogue; other forms of communication

14

are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging

15

Party must explain the basis for its belief that the confidentiality designation was not proper and

16

must give the Designating Party an opportunity to review the designated material, to reconsider the

17

circumstances, and, if no change in designation is offered, to explain the basis for the chosen

18

designation. A Challenging Party may proceed to the next stage of the challenge process only if it

19

has engaged in this meet and confer process first or establishes that the Designating Party is

20

unwilling to participate in the meet and confer process in a timely manner.

21
22
23
24
25
26
27
28

6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court
they shall comply with the undersigned's Standing Order re Civil Discovery Disputes
intervention, the Designating Party shall file and serve a motion to retain confidentiality under
("Standing Order") as well as
Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of
the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
In each Discovery Dispute Joint Report
process will not resolve their dispute, whichever is earlier. Each such motion must be accompanied
("DDJR"), the parties must attest that they have
by a competent declaration affirming that the movant has complied with the meet and confer
seek court
requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a
intervention within the time period set out in the Standing Order, Section D
motion including the required declaration within 21 days (or 14 days, if applicable) shall

8

1
2

automatically waive the confidentiality designation for each challenged designation. In addition,
seek relief with respect to
the Challenging Party may file a motion challenging a confidentiality designation at any time if

5

there is good cause for doing so, including a challenge to the designation of a deposition transcript
In any DDJR
or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a
the parties must attest that they have
competent declaration affirming that the movant has complied with the meet and confer

6

requirements imposed by the preceding paragraph.

3
4

7

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

8

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

9
10

unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions.
seek relief
Unless the Designating Party has waived the confidentiality designation by failing to file a motion

11

to retain confidentiality as described above, all parties shall continue to afford the material in

12

question the level of protection to which it is entitled under the Producing Party’s designation until

13

the court rules on the challenge.

14
15
16
17
18
19
20
21
22
23
24
25
26
27

7.

ACCESS TO AND USE OF PROTECTED MATERIAL
7.1

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

produced by another Party or by a Non-Party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order. When the litigation has
been terminated, a Receiving Party must comply with the provisions of section 14 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in
a secure manner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered

by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “CONFIDENTIAL” only to:
(a) the Receiving Party’s House Counsel asnd Outside Counsel of Record in this
action, as well as employees of said House counsel and Outside Counsel of Record to whom it is

28

9

1

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

2

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A;
(b) the officers, directors, and employees of the Receiving Party to whom disclosure

3
4

is reasonably necessary for this litigation and who have signed the “Acknowledgment and

5

Agreement to Be Bound” (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is

6
7

reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement

8

to Be Bound” (Exhibit A);
(d) the court and its personnel;

9

(e) court reporters and their staff, professional jury or trial consultants, and

10
11

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

12

signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(f) during their depositions, witnesses in the action to whom disclosure is reasonably

13
14

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

15

unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed

16

deposition testimony or exhibits to depositions that reveal Protected Material must be separately

17

bound by the court reporter and may not be disclosed to anyone except as permitted under this

18

Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a custodian

19
20
21

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

Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and

22

“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise ordered

23

by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any

24

information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

25

“HIGHLY CONFIDENTIAL – SOURCE CODE” only to:

26

(a) the Receiving Party’s House Counsel and Outside Counsel of Record in this

27

action, as well as employees of said House Counsel and Outside Counsel of Record to whom it is

28

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

10

1

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A;
(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary

2
3

for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”

4

(Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been

5

followed;

6

(c) the court and its personnel;

7

(d) court reporters and their staff, professional jury or trial consultants, and

8

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

9

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

10
11
12

(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 CONFIDENTIAL –

13

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information

14

or Items to Experts.

15

(a) Unless otherwise ordered by the court or agreed to in writing by the Designating

16

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

17

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

18

“HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(b) first must make a

19

written request to the Designating Party that (1) identifies the general categories of “HIGHLY

20

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE

21

CODE” information that the Receiving Party seeks permission to disclose to the Expert, (2) sets

22

forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches

23

a copy of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) identifies

24

each person or entity from whom the Expert has received compensation or funding for work in his

25

or her areas of expertise or to whom the expert has provided professional services, including in

26
27
28

11

1

connection with a litigation, at any time during the preceding five years,1 and (6) identifies (by

2

name and number of the case, filing date, and location of court) any litigation in connection with

3

which the Expert has offered expert testimony, including through a declaration, report, or

4

testimony at a deposition or trial, during the preceding five years.

5

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

6

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

7

Expert unless, within 14 days of delivering the request, the Party receives a written objection from

8

the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
(c) A Party that receives a timely written objection must meet and confer with the

9
10

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement

11

13

within seven days of the written objection. If no agreement is reached, the Party seeking to make
parties may seek judicial relief pursuant to the Standing Order
the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance
DDJR
with Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any such

14

motion must describe the circumstances with specificity, set forth in detail the reasons why the

15

disclosure to the Expert is reasonably necessary, assess the risk of harm that the disclosure would

16
17

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

18

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

19

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

20

disclosure.

12

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

21
22

proving that the risk of harm that the disclosure would entail (under the safeguards proposed)

23

outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.

24
25
26
27
28

1

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

1

8.

SOURCE CODE
(a)

2

To the extent production of source code becomes necessary in this case, a

3

Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” if

4

it comprises or includes confidential, proprietary or trade secret source code.
(b)

5

Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE

6

CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –

7

ATTORNEYS’ EYES ONLY” information, and may be disclosed only to the individuals to whom

8

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be disclosed, as

9

set forth in Paragraphs 7.3 and 7.4.
(c)

10

Any source code produced in discovery shall be made available for

11

inspection, in a format allowing it to be reasonably reviewed and searched, during normal business

12

hours or at other mutually agreeable times, at an office of the Producing Party’s counsel or another

13

mutually agreed upon location. The source code shall be made available for inspection on a secured

14

computer in a secured room without Internet access or network access to other computers, and the

15

Receiving Party shall not copy, remove, or otherwise transfer any portion of the source code onto

16

any recordable media or recordable device. The Producing Party may visually monitor the

17

activities of the Receiving Party’s representatives during any source code review, but only to

18

ensure that there is no unauthorized recording, copying, or transmission of the source code.
(d)

19

The Receiving Party may request paper copies of limited portions of source

20

code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or

21

other papers, or for deposition or trial, but shall not request paper copies for the purposes of

22

reviewing the source code other than electronically as set forth in paragraph (c) in the first instance.

23

The Producing Party shall provide all such source code in paper form including bates numbers and

24

the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing Party may challenge

25

the amount of source code requested in hard copy form pursuant to the dispute resolution

26

procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the

27

“Challenging Party” and the Receiving Party is the “Designating Party” for purposes of dispute

28

resolution.

13

(e)

1

The Receiving Party shall maintain a record of any individual who has

2

inspected any portion of the source code in electronic or paper form. The Receiving Party shall

3

maintain all paper copies of any printed portions of the source code in a secured, locked area. The

4

Receiving Party shall not create any electronic or other images of the paper copies and shall not

5

convert any of the information contained in the paper copies into any electronic format. The

6

Receiving Party shall only make additional paper copies if such additional copies are (1) necessary

7

to prepare court filings, pleadings, or other papers (including a testifying expert’s expert report),

8

(2) necessary for deposition, or (3) otherwise necessary for the preparation of its case. Any paper

9

copies used during a deposition shall be retrieved by the Producing Party at the end of each day and

10
11
12
13

must not be given to or left with a court reporter or any other individual.
9.

PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that

14

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

15

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –

16

SOURCE CODE” that Party must:

17
18
19
20
21
22
23
24
25

(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 issue in
the other litigation that some or all of the material covered by the subpoena or order is subject to
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(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
subpoena or court order shall not produce any information designated in this action as

26

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or

27

“HIGHLY CONFIDENTIAL – SOURCE CODE” before a determination by the court from which

28

14

1

the subpoena or order issued, unless the Party has obtained the Designating Party’s permission. The

2

Designating Party shall bear the burden and expense of seeking protection in that court of its

3

confidential material – and nothing in these provisions should be construed as authorizing or

4

encouraging a Receiving Party in this action to disobey a lawful directive from another court.

5
6
7

10.

A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a)

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

8

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

9

ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Such

10
11
12
13

information produced by Non-Parties in connection with this litigation is protected by the remedies
and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a
Non-Party from seeking additional protections.
(b)

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

14

a Non-Party’s confidential information in its possession, and the Party is subject to an agreement

15

with the Non-Party not to produce the Non-Party’s confidential information, then the Party shall:

16
17

1. promptly notify in writing the Requesting Party and the Non-Party that some
or all of the information requested is subject to a confidentiality agreement with a Non-Party;

18
19
20

2. promptly provide the Non-Party with a copy of the Stipulated Protective
Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
the information requested; and

21
22
23
24
25
26
27

3. make the information requested available for inspection by the Non-Party.
(c)

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

within 14 days of receiving the notice and accompanying information, the Receiving Party may
produce the Non-Party’s confidential information responsive to the discovery request. If the NonParty timely seeks a protective order, the Receiving Party shall not produce any information in its
possession or control that is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party shall bear the

28

15

1
2

burden and expense of seeking protection in this court of its Protected Material.
11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL

3
4
5
6
7
8
9

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
Protected Material to any person or in any circumstance not authorized under this Stipulated
Protective Order, the Receiving Party must immediately (a) notify in writing the Designating Party
of the 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
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.

10
11

12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL

12

When a Producing Party gives notice to Receiving Parties that certain inadvertently

13
14

produced material is subject to a claim of privilege or other protection, the obligations of the

15

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision

16

is not intended to modify whatever procedure may be established in an e-discovery order that

17

provides for production without prior privilege review. Pursuant to Federal Rule of Evidence

18

502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a

19

communication or information covered by the attorney-client privilege or work product protection,

20

the parties may incorporate their agreement in the stipulated protective order submitted to the

21

court.

22
23
24
25
26
27

13.

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 Order

no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no

28

16

1

Party waives any right to object on any ground to use in evidence of any of the material covered by

2

this Protective Order.
13.3

3

Filing Protected Material. Without written permission from the Designating Party or

4

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

5

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

6

Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed

7

under seal pursuant to a court order authorizing the sealing of the specific Protected Material at

8

issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing

9

that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled

10

to protection under the law. If a Receiving Party's request to file Protected Material under seal

11

pursuant to Civil Local Rule 79-5(e) is denied by the court, then the Receiving Party may file the

12

Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise

13

instructed by the court.

14
15
16
17
18
19
20
21
22
23
24
25
26
27

14.

FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4,

each Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivision, “all Protected Material” includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must submit
a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60-day deadline that (1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to
retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts,
legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain Protected Material.

28

17

1

Any such archival copies that contain or constitute Protected Material remain subject to this

2

Protective Order as set forth in Section 4 (DURATION).

3

15.

All disclosure and discovery disputes are subject to the Standing Order.

4
5
DATED: April 23, 2014
6
7
8

MUNGER, TOLLES & OLSON LLP
JEROME C. ROTH
ROSEMARIE T. RING
JONATHAN H. BLAVIN
WILLIAM J. EDELMAN

9
10

By: /s/ Jerome C. Roth
JEROME C. ROTH
Attorneys for Defendant
LinkedIn Corporation

11
12
13
14
15
16

DATED: April 23, 2014

RUSS AUGUST & KABAT
LARRY C. RUSS
DORIAN S. BERGER
DANIEL P. HIPSKIND

17
18
19

By: /s/ Daniel P. Hipskind
DANIEL P. HIPSKIND

20

Attorneys for Plaintffs

21
22
23
24
25
26

AS MODIFIED BY THE COURT
PURSUANT TO STIPULATION, IT IS SO ORDERED.
^
May 14, 2014
DATED: ________________________ _____________________________________
HON. LUCH H. KOH
United States District Judge
HOWARD R. LLOYD
United States Magistrate Judge

27
28

18

1

EXHIBIT A

2

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND

3

I, _____________________________ [print or type full name], of

4

_________________ [print or type full address], declare under penalty of perjury that I have read

5

in its entirety and understand the Stipulated Protective Order that was issued by the United States

6

District Court for the Northern District of California on [date] in the case of Perkins v. LinkedIn

7

Corp., 13-CV-4303-LHK. I agree to comply with and to be bound by all the terms of this

8

Stipulated Protective Order and I understand and acknowledge that failure to so comply could

9

expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will

10

not disclose in any manner any information or item that is subject to this Stipulated Protective

11

Order to any person or entity except in strict compliance with the provisions of this Order.

12

I further agree to submit to the jurisdiction of the United States District Court for the

13

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

14

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

15

I hereby appoint __________________________ [print or type full name] of

16

_______________________________________ [print or type 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
20

Date: _________________________________

21

City and State where sworn and signed: _________________________________

22

Printed name: ______________________________
[printed name]

23
24

Signature: __________________________________
[signature]

25
26
27
28

19