iLOR, LLC v. Google, Inc.

Filing 41

JOINT MOTION for Protective Order by iLOR, LLC & Google, Inc.- INTERIM PROTECTIVE ORDER (Attachments: # 1 Proposed Interim Protective Order)(Schmit, David) Modified by adding Google, Inc. as a filer on 9/26/2007 (Reynolds, Kolleen).

iLOR, LLC v. Google, Inc.

Doc. 41 Att. 1

Case 5:07-cv-00109-JMH

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT LEXINGTON

iLOR, LLC
Plaintiff,
v.

Civil Action No. 5:07 - CV - 001 09 - JMH

GOOGLE INC.

Defendant.

(PCOP().5Ci: INTERIM PROTECTIVE ORDER
Pursuant to Rule 26(c), Fed. R. Civ. P., the following procedures shall be used in this
action for the protection of

the parties and against the improper disclosure or use of confidential

information produced in discovery or filed with this Court with respect to iLOR's motion for a

preliminary injunction. The parties will negotiate a "final" joint Protective Order for submission
to the Court at a later time. However, until such subsequent protective order is entered, this
Interim Protective Order shall control.
i. This Order shall be applicable to and govern all initial disclosures, depositions,

documents, answers to interrogatories, responses to requests for admission, and all other discovery taken pursuant to the Federal Rules of Civil Procedure, as well as testimony adduced at hearings or at trial, matters in evidence and any other information furnished, directly or

indirectly, by or on behalf of any party or non-pary (hereinafter "Producing Party"), to the
extent such material is designated "CONFIDENTIAL" or "HTGHL Y CONFIDENTIAL" in

accordance with this Order.

2. As used herein, "CONFIDENTIAL" material is confidential research,

development, financial, commercial, marketing or business information of a technical or non-

technical nature; trade secrets; know-how; or proprietary data relating to research, development,
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financial, commercial, marketing or business subject matter of a technical or non-technical
nature of

the Producing Party. A Producing Party shall designate as CONFIDENTIAL only
the foregoing

information that the Producing Party in good faith believes meets at least one of

criteria.

3. Information designated CONFIDENTIAL by a Producing Party shall be used by

the recipient solely for the purpose of conducting this litigation and not for any other purpose.
4. In the absence of

written permission from the Producing Party or further order by

the Court, CONFIDENTIAL Information may be disclosed only to the following persons:
(a) outside counsel engaged by a party to represent it in connection with this

litigation, including paralegal, secretarial and clerical personnel who assist outside counsel in this

case. However no such counsel shall have any involvcmcnt with the preparation, filing or
prosecution of

patent applications concerning enhancements to hyperlinks.
(b) no more than one in-house attorney and no more than one in-house

technical expert for each party and any stenographic, clerical or paralegal employees working
with such in-house attorney or expert whose function in this litigation requires access to material
designated as CONFIDENTIAL Information;
(1) For plaintiff iLOR, the designated in-house technical expert is

Stephen Mansfield.
(2) For defendant Google, the designated in-house attorney is

Adam Barea and the designated in-house technical expert is
(c) consultants and experts who are not now (1) employed by any party,

(2) offcers or directors of any party, or (3) under the control of any such consultant or expert.;
(d) any interpreter or typist or transcriber used by the interpreter:

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(e) any outside copying and exhibit preparation service;

(f) any court reporter recording or transcribing testimony; and

(g) this Court, its clerk and court personneL.

CONFIDENTIAL Information shall not bc disclosed to any person described in sub-paragraph

(b) unless and until that person has executed an acknowledgment substantially in the form of
Attachment 1 hereto. CONFIDENTIAL Information shall not be disclosed to any person
described in sub-paragraphs (c) or (d) unless and until that person has executed an acknowledgment substantially in the form of Attachment 2 hereto. The executed
acknowledgment for any person described in sub-paragraphs (c) or (d) must be provided to all

other parties in this action at least seven (7) business days before any initial disclosure, along

with a currculum vitae for that person and a written statement setting forth that person's present
residence address, business address, employer, job title and any past or present association with

any pary. If any party objects to the disclosure of CONFIDENTIAL Information to that person
within five (5) business days after receiving notice, no such disclosure shall be made to that
person without prior approval of

the Court or the objecting party. Any objection shall state with

particularity the basis for the objection. Although the objecting pary shall have the ultimate
burden of showing why that person should not have access to the CONFIDENTIAL Information,

the pary seeking to disclose the CONFIDENTIAL Information shall have the initial burden of
moving the Court for approval to disclose the CONFIDENTIAL Information. Pending resolution
of any such motion, no disclosure shall be made to that person.
5. As used herein, "HIGHLY CONFIDENTIAL" material is CONFIDENTIAL

material that any party deems to contain particularly sensitive business or technical information.

The "HIGHLY CONFIDENTIAL" category may be invoked in good faith by a Producing Pary

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and only relative to particularly sensitive proprietary commercial and technical infonnation.
However, the foregoing notwithstanding, in order to avoid any delays in discovery in this case,

while determining the confidentiality classification of specific information, iLOR may designate
all infonnation produced in discovery as HlGHL Y CONFIDENTIAL. If

Google's counsel

requests that such information be declassified or reclassified, the paries will attempt to resolve
the request by discussion..
6. Infonnation designated HIGHLY CONFIDENTIAL by a Producing Party shall be

used by the recipient solely for the purpose of conducting this litigation and not for any other
purpose.
7. In the absence of

written pennission from the Producing Party or further order by

the Court, HIGHLY CONFIDENTIAL Information may be disclosed only to the following
persons:
(a) outside counsel engaged by a party to represent it in connection with this

litigation, including paralegal, secretarial and clerical personnel who assist outside counsel in this

case. However no such counsel shall have any involvement with the preparation, filing or
prosecution of

patent applications concerning enhancements to hyperlinks.
(b) one in-house attorney for each party, provided that such attorney have no

involvement in the preparation, filing or prosecution of

patent applications, and any

stenographic, clerical or paralegal employees working with such in-house attorney whose

function in this litigation requires access to material designated as HIGHLY CONFIDENTIAL
Information;
(I) For defendant Coogle, the designated in-house attorney is

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(c) consultants and experts who are not now (l) employed by any party, (2)

officers or directors of any party, or (3) under the control of any such consultant or expert;

(d) any interpreter or typist or transcriber used by the interpreter:
(e) any outside copying and exhibit preparation service;

(f) any court reporter recording or transcribing testimony: and

(g) this Court, its clerk and court personneL.

HIGHLY CONFIDENTIAL Information shall not be disclosed to any person described in sub

paragraph (b) unless and until that person has executed an acknowledgment substantially in the

form of Attachment i hereto. HIGHLY CONFIDENTIAL Information shall not be disclosed to
any person described in sub-paragraphs (c) or (d) unless and until that person has executed an

acknowledgment substantially in the form of Attachment 2 hereto. The executed
acknowledgment for any person described in sub-paragraphs (c) or (d) must be provided to all

other paries in this action at least seven (7) business days before any initial disclosure, along with a currculum vitae for that person and a written statement setting forth that person's present
residence address, business address, employer, job title and any past or present association with
any party. If any party objects to the disclosure of HIGHLY CONFIDENTIAL Information to that person within five (5) business days after receiving notice, no such disclosure shall be made
to that person without prior approval of

the Court or the objecting pary. Any objection shall

state with particularity the basis for the objection. Although the objecting party shall have the
burden of showing why that person should not have access to the HIGHL Y CONFIDENTIAL

Information, the party seeking to disclose the HIGHLY CONFIDENTIAL Information shall

have the initial burden of moving the Court for approval to disclose the HIGHLY
CONFIDENTIAL Information. Pending resolution of any such motion, no disclosure shall be

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made to that person.

8. Any person who makes any disclosure in confidence under this Order of
CONFIDENTIAL Information or HIGHLY CONFIDENTIAL Information shall advise each
person to whom such disclosure is made of the terms of

this Order. The persons described in

paragraphs 4 and 7 are enjoined from using themselves or disclosing CONFIDENTIAL
Information or HIGHLY CONFIDENTIAL Information to any other person except in
conformity with this Order.
9. Non-party Producing Parties, including witnesses, who provide discovery in this
action may invoke all provisions of

this Order as to that discovery, and the parties to this Order

will treat all information designated by such non-pary Producing Parties as CONFIDENTIAL or
HIGHLY CONFIDENTIAL in accordance with the terms of

this Order as if such non-party

Producing Party were party to this Order.
10. The Producing Party shall designate CONFIDENTIAL Information or HIGHLY

CONFIDENTIAL Information in the following manner:
(a) In the case of documents, interrogatory answcrs, responses to requests for

admission, and the information contained therein, designation shall be made by placing the

legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL" on any such document copied or
to be copied prior to production. In lieu of marking the original of a document that contains
CONFIDENTIAL Information or HIGHLY CONFIDENTIAL Information prior to inspection,

counsel for the Producing Pary may orally designate such documents being produced for
inspection as CONFIDENTIAL or HIGHLY CONFIDENTIAL, thereby making them subject to

this Order. Any copies of such documents must be marked "CONFIDENTIAL" or "HIGHLY
CONFIDENTIAL" by the Producing Party at the time they are supplied to the receiving party.

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(b) In the case of depositions, designation of all or a portion of

the transcript

(including exhibits) containing CONFIDENTIAL Information or HIGHLY CONFIDENTIAL

Information shall be made by a statement to such effect on the record in the course of the
deposition and portions so designated shall be separately transcribed by the court reporter.

(c) If a deposition transcript, or portion thereof, containing CONFIDENTIAL
Information or HIGHLY CONFIDENTIAL Information is fied with the Court, the transcript
shall bear the legend "CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER" or "HIGHLY
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER" on the caption page and the
Producing Party shall file such information under seaL.
ll. A receiving party shall not be obligated to challenge the propriety of any

CONFIDENTIAL or HIGHLY CONFIDENTIAL designation at the time the designation is

made and failure to do so shall not preclude a subsequent challenge thereto. In the event that any
party disagrees at any stage of

the proceedings with such designation, such party shall provide to

the Producing Party written notice of its disagreement with the designation. The Producing Party
shall first try to dispose of such dispute in good faith on an informal basis. If

the dispute cannot

be resolved within ten days of

the challenging party's wrtten notice, the party challenging the
from this Court. The burden of

designation may then request appropriate relief

proving the

information has been properly designated as CONFIDENTIAL or HIGHLY CONFIDENTIAL Information is on the Producing Party making such designation.
12. The inadvertent or unintentional disclosure by the Producing Party of

CONFIDENTIAL Information or HIGHLY CONFIDENTIAL Information, regardless of
whether the material was so designated at the time of disclosure, shall not be deemed a waiver in whole or in part of such Producing Party's claim of confidentiality, either as to the specific

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information disclosed or as to any other information relating to the same or related subject
matter, provided that the Producing Party shall promptly upon discovery of

the inadvertent or

unintentional disclosure notify the receiving party in writing that the information is

CONFIDENTIAL or HIGHLY CONFIDENTIAL. Such notification shall constitute a
designation ofthe information as CONFIDENTIAL or HIGHLY CONFIDENTIAL, and
therefore subject it to the provisions of this Order. Disclosure of inadvertently or unintentionally
disclosed CONFIDENTIAL Information or HIGHLY CONFIDENTIAL Information prior to
receipt of such notice shall not be deemed a violation of this Order. However, those persons to

whom disclosure was made are to be advised that the information is CONFIDENTIAL or
HIGHLY CONFIDENTIAL and must be treated in accordance with this Order.
i 3. The inadvertent or unintentional disclosure of documents or things which the

Producing Party believes are subject to attorney-client privilege, attorney work product, or any
other claim of immunity from production shall not constitute a waiver of

the respective privilege

or immunity, provided that the Producing Party shall promptly upon discovery of the inadvertent or unintentional disclosure notify the receiving party in writing that the document or thing is subject to such a privilege or immunity. The receiving party shall return, within three business

days from the date said written notice is received, to the Producing Party any document or thing
identified by the Producing Party as subject to such privilege or immunity, and any copies
thereof. Return of

the document or thing shall not constitute an admission or concession, or

permit any inference, that the returned document or thing is, in fact, properly subject to such a
claim of privilege or immunity, nor shall anything herein prevent the receiving party from challenging the privileged status of any inadvertently or unintentionally produced information,

document or thing or asserting that it should be producible for any reasons other than a waiver

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caused by the inadvertent or unintentional production.
14. Any document, pleading, transcript or bricf that discloses CONFIDENTIAL

Information or HIGHLY CONFIDENTIAL Information and is used in connection with any
motion, other written submission, hearing or trial in this action shall be marked according to
paragraph 10 and shall be filed under seal for the Court's in camera inspection, or shall be

submitted to the Court in such other manner as the Producing Pary and the Court may agree to
protect the confidentiality of such inforniation. The original and all copies of any document constituting or containing CONFIDENTIAL Information or HIGHLY CONFIDENTIAL

Infomiation shall state in bold letters on the first pagc of the document that it is
CONFIDENTIAL or HIGHLY CONFIDENTIAL and that the document is subject to the
Protective Order.
1 S. Nothing in this Order shall prevent a party from using CONFIDENTIAL

Information or HIGHLY CONFIDENTIAL Information at trial or during a hearing or other court

proceeding in this litigation and such infomiation shall not lose its CONFIDENTIAL or
HIGHLY CONFIDENTIAL status through such use. The party shall take all steps reasonably
required to protect the confidentiality of such designated information during such use. Nothing

herein shall be construed to affect in any way the admissibility of any document, testimony or
other evidence at triaL.
i 6. The restrictions provided herein shall not terminate upon the conclusion of this

action, but shall continue until further Order of

this Court; provided, however, that this Order

shall not be construed to
(a) prevent any party or its attorneys from making use of information which

was lawfully in its possession prior to its disclosure by the Producing Party;

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(b) apply to information which appears in issued patents or printed

publications or otherwise lawfully becomes publicly known, or (c) apply to information which
any party or its attorneys have, after disclosure by the Producing Party, lawfully obtained from a

non-party having the right to disclose such information and who has no obligation to protect the
confidentiality thereof.

17. Nothing in this Order shall preclude any party to this action or its attorneys from
(a) showing a document designated CONFIDENTIAL or HIGHLY
CONFIDENTIAL to an individual who, as indicated on the face of

the document or established

by other, prior evidence, either prepared, received or reviewed the document;
(b) using at a deposition of an employee or expert of a Producing Party any

document that such Producing Party designated CONFIDENTIAL or HIGHLY

CONFIDENTIAL, or
(c) disclosing or using, in any manner or for any purpose, any information or
documents from the Producing Party's own files which the Producing Pary itself

has designated

as CONFIDENTIAL or HIGHLY CONFIDENTIAL.

18. Any Producing Party who has designated any information as CONFIDENTIAL or
HIGHLY CONFIDENTIAL pursuant to this Order may consent that the CONFIDENTIAL or HIGHLY CONFIDENTIAL status of such information be removed by giving written
notification to opposing counsel of

record or by statements on the record at any hearing or

deposition. These shall be the only methods by which such consent may be manifested.
19. Within 60 days of the final termination of

this action by entry of a final judgment

from which no further appeal has been or can be taken, all CONFIDENTIAL and HIGHLY CONFIDENTIAL material and all copies thereof shall be destroyed or returned to the Producing

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Party that produced them. If a receiving party elects to destroy copies of such CONFIDENTIAL or HIGHLY CONFIDENTIAL material, the receiving party or its attorneys shall certify in writing that said material has been destroyed within the 60-day period. Notwithstanding the foregoing, outside counsel may retain an archival copy of any pleading, discovery and/or
attorney work product which contains CONFIDENTIAL Information or HIGHLY

CONFIDENTIAL Information. Such archival material shall be retained and treated in
accordance with the terms of this Order, which shall survive the final termination of

this action

to the extent the information in such retained material is not or does not become known to the

public by means other than a violation ofthis Order.
20. Nothing herein shall prevent any Producing Party, on notice to all othcr producing

parties, from applying to the Court for a modification of this Order.
21. Entry of

this Order shall be without prejudice to thc right of any Producing Party

to seek relief from this Court, upon good cause shown, from any of the provisions hereof.
22. By entering this Order and limiting the disclosure of

information in this case, this

Court does not intend to preclude another court from finding that information may be relevant
and subject to disclosure in another case. Any person or party subject to this Order who may be
subject to a motion to disclose another Producing Party's information designated

CONFIDENTIAL or HIGHLY CONFIDENTIAL pursuant to this Order, shall promptly notify

that Producing Pary of the motion so that it may have an opportunity to appear and he heard on
whether that information should be disclosed.

23. Any party may move that attendance at a hearing or a trial session in this action at
which material designated CONFIDENTIAL or HIGHLY CONFIDENTIAL wil be used or
disclosed be limited to individuals entitled to have access to such materials under the terms of

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this Protective Order.
24. Legible photocopies of documents and, where reasonably possible, things, may be

used for all purposes in this action as against a claim that they are not the "originals," provided

that the "original" documents and things, in whatever form they exist in a Producing Party's

fies, shall be made available upon request of any party.
25. Nothing in this Order shall bc dcemed a waiver of any right that any party
otherwise has under the Federal Rules, Local Civil Rules of

this Court or the doctrines of

attorney-client privilege or attorney work product.

Dated: September 23, 2007

7~

Frank E. Scherkcnbach Peter J. Kirk Matthew J. Leary Fish & Richardson, P.c. 225 Franklin Street Boston, MA 02110-2804 Phone: [phone] Facsimile: [phone]

James R. Higgins, Jr (KBA No. 31790) Brian P. McGraw (KBA No. 90447) Middleton Reutlnger 2500 Brown & Williamson Tower Louisville, KY 40202-3410
Phone: [phone]

Facsimile: [phone]
Attorneys for Google Inc.

By: Isl

David E. Schmit(Ohio Bar #0021147)

Frost Brown Todd LLC
2200 PNC Center 201 East Fifth Street Cincinnati, Ohio 45202

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[phone] Ph [phone] Fa~ne Attorneys for iLOR, LLC.

By/sFzSJA
SO ORDERED.
Dated this
day of

September, 2007.

UNITED STATES DISTRICT JUDGE

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ATTACHMENT 1

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY AT LEXINGTON

iLOR, LLC
Plaintiff,
v.
GO

Civil Action No. 5:07 - CV - 00109 - .IMH

OGLE INC.

Defendant.

ACKNOWLEDGMENT
I hereby acknowledge (1) that I have read the Interim Protective Order entered in the above-captioned case on
by the obligations and conditions of

and (2) that I fully understand and agree to abide
that Protective Order.

My professional responsibilities do not include the preparation, filing or prosecution of
patent applications concerning enhancements to hyperlinks.

Dated:

Signature

Printed Name

Title or Position

Employer

Employer's Address

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ATTACHMENT 2

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UNITED STATES DISTRICT COURT EASTERN DISTRiCT OF KENTUCKY AT LEXINGTON

iLOR, LLC
Plaintiff,
v.

Civil Action No. 5:07 - CV - 00109 - JMH

GOOGLE INC.

Defendant.

ACKNOWLEDGMENT
I hereby acknowledge (I) that i have read the Interim Protective Order entered in the
above-captioned case on
by the obligations and conditions of

and (2) that I fully understand and agree to abide
that Protective Order.

Dated:

Signature

Printed Name

Title or Position

Employer

Employer's Address

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