In Re Application for Order Enforcing a Subpoena

Filing 1

APPLICATION for an order enforcing a subpoena Filing fee: $ 39, receipt number 0101-3391886 (Fee Status: Filing Fee paid) (Attachments: # 1 Memorandum in Support of TriQuint Motion to Compel, # 2 Affidavit of Laura T. Ewbank in Support of TriQuint's Motion to Compel, # 3 Exhibit A to Ewbank Aff., # 4 Exhibit B to Ewbank Aff., # 5 Exhibit C to Ewbank Aff., # 6 Exhibit D to Ewbank Aff.) (Burroughs, Allison) (Entered: 05/05/2011)

Case 2:09-cv-01531-JAT Document 90

Filed 03/19/10 Page 1 of 22

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8

TRIQUINT SEMICONDUCTOR, INC.,
Plaintiff and
Counterclaim Defendant,

9
10
11
12
13
14

Case No. CV 09-1531 PHX JAT
STIPULATED PROTECTIVE ORDER

v.
AVAGO TECHNOLOGIES LIMITED,
AVAGO TECHNOLOGIES U.S., INC., AND
AVAGO TECHNOLOGIES WIRELESS IP
(SINGAPORE) PTE.,
Defendants and
Counterclaim Plaintiffs.

15
16

Pursuant to Fed. R. Civ. P. 26(c), Plaintiff and Counterclaim Defendant TriQuint

17

Semiconductor, Inc. (“TriQuint”) and Defendants and Counterclaim Plaintiffs Avago

18

Technologies Limited, Avago Technologies U.S., Inc., and Avago Technologies Wireless

19

IP (Singapore) Pte. (collectively, “Avago”) (as to each, a “Party”, and collectively, the

20

“Parties”) have stipulated and agreed to the following Stipulated Protective Order (the

21

“Protective Order”) to apply to information, documents and other things produced,

22

served, or otherwise disclosed in this action (this “Litigation”). In addition, the Court

23

finds that the parties have alleged that this action may involve trade secrets and other

24

valuable research, development, commercial, financial, technical and/or proprietary

25

information for which special protection from public disclosure and from use for any

26

purpose other than prosecution of this action is warranted. Accordingly, to expedite the

27

flow of information, to facilitate the prompt resolution of disputes over confidentiality of

28

discovery materials, to adequately protect information the parties are entitled to keep

Case 2:09-cv-01531-JAT Document 90

1
2

confidential, and to ensure that the parties are permitted reasonably necessary uses of
such materials in preparation for and in the conduct of trial,

3
4
5
6
7
8
9
10
11
12

IT IS ORDERED as follows:
1.

Scope. This Protective Order governs the handling and treatment of all confidential,

trade secret, or proprietary documents, materials and other information, including
deposition testimony and deposition transcripts, that are produced, served, or provided in
the course of pre-trial discovery and preparation in this Litigation, as well as any privileged
information inadvertently produced in this Litigation.
2.

Calculation of time. Time periods will be calculated in accordance with Rule 6 of

the Federal Rules of Civil Procedure, as amended effective December 1, 2009.
3.

Definitions. The following definitions apply in this Protective Order:
(a)

13

ONLY under Section 6 below.
(b)

16

OUTSIDE COUNSEL ONLY under Section 6 below.
(c)

19

during discovery in this Litigation, including, but not limited to, motion

21

papers, exhibits, answers to interrogatories, responses to requests for

22

admissions, responses to requests for production, subpoenas, declarations,

23

affidavits, and deposition testimony or transcripts, and all copies, extracts,

24

26
27

“Discovery Material” means any Document, material, item, testimony, or
thing filed with or presented to the Court or produced, served, or generated

20

25

“Designating Party” means any Party or Third Party that designates
Designated Material CONFIDENTIAL or HIGHLY CONFIDENTIAL –

17
18

“Designated Material” means any Discovery Material designated
CONFIDENTIAL or HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL

14
15

Filed 03/19/10 Page 2 of 22

summaries, compilations, designations, and portions thereof.
(d)

“Document” means any document, electronically stored information, or
thing subject to production or inspection under Federal Rule of Civil
Procedure 34.

28
2

Case 2:09-cv-01531-JAT Document 90

1

(e)

2

counsel of any Party for any purpose in this Litigation. No employee,

4

officer, or director of a Party, nor any consultant involved in product and/or

5

process design or development for a Party, nor any owner of more than a two

6

percent interest in a Party may be retained as an Expert.
(f)

8

agents, that produces any Discovery Material.
(g)

11

agents, that receives any Discovery Material.
(h)

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

“Receiving Party” means any Party to this Litigation or any Third Party,
including its counsel, retained experts, directors, officers, employees, or

12
13

“Producing Party” means any Party to this Litigation or any Third Party,
including its counsel, retained experts, directors, officers, employees, or

9
10

“Expert” means any consultant or expert—including the research assistants
and support staff of any consultant or expert—retained by any Party or the

3

7

Filed 03/19/10 Page 3 of 22

“Third Party” means any natural or legal person not a Party to this
Litigation.

(i)

“CONFIDENTIAL” Material means material the Designating Party
believes in good faith is not generally known to others, and which the
Designating Party (i) would not normally reveal to third parties except in
confidence or has undertaken with others to maintain in confidence, (ii)
believes in good faith is protected by a right to privacy under federal or state
law or any other applicable privilege or right related to confidentiality or
privacy, or (iii) believes in good faith to constitute or to contain trade secrets
or other confidential research, development, or commercial information.
CONFIDENTIAL Material shall include all Material referring or relating to
the foregoing, including but not limited to copies, summaries, and abstracts
of the foregoing, and shall be designated as such in the manner described in
Section 7 below.

27
28
3

Case 2:09-cv-01531-JAT Document 90

1

(j)

2

set forth in the definition above, which the Designating Party reasonably

4

believes contains such highly sensitive information that its disclosure to any

5

employees of an opposing party would present a substantial risk of harm to

6

the competitive position of the Designating Party. By way of non-limiting

7

example, Material in one or more of the following categories may qualify for

8

the

9

OUTSIDE

COUNSEL

ONLY

reference materials, and other nonpublic technical descriptions and/or

13

depictions of the relevant technology; (ii) non-public damages-related

14

information (e.g., the number of products sold, total dollar value of sales

15

products, and profit margins); (iii) non-public financial information; (iv)

16

customer lists; (v) strategic business and/or marketing plans; (vi) non-public

17

price lists and/or pricing information; and (vii) information obtained from a

18

non-party pursuant to a current Non-Disclosure Agreement (“NDA”).
(k)

20

HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY Material shall
include all Material referring or relating to the foregoing, including but not

21

limited to copies, summaries, and abstracts of the foregoing, and shall be

22

26

–

notebooks, unreleased specifications, research notes and materials, technical

12

25

CONFIDENTIAL

diagrams, proprietary manufacturing and engineering processes, engineering

11

24

HIGHLY

designation: (i) non-public technical information, including schematic

10

23

“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” Material
means material meeting the requirements for CONFIDENTIAL Material, as

3

19

Filed 03/19/10 Page 4 of 22

designated as such in the manner described in Section 7 below.
4. Limits on use of Designated Material. Designated Material may be used only for
purposes of the preparation and trial of this Litigation, for any related appellate proceeding,
and for no other purpose, including, but not limited to, any commercial or business
purpose.

27
28
4

Case 2:09-cv-01531-JAT Document 90

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Filed 03/19/10 Page 5 of 22

5. Dispute resolution. Disputes arising in connection with the terms of this Protective
Order that require resolution by the Court will be addressed through the Court’s joint
discovery dispute conference call procedure. No briefing is permitted unless requested by
the Court.
6. Designation of Designated Material. Any Party or Third Party may designate as
CONFIDENTIAL any Discovery Material, in whole or in part, that the Designating Party
believes qualifies as CONFIDENTIAL Material under the definition in 3(i) above. Any
Party or Third Party may designate as HIGHLY CONFIDENTIAL—OUTSIDE
COUNSEL ONLY any Discovery Material, in whole or in part, that the Designating
Party believes qualifies as HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY
Material under the definition in 3(j) above.

Designated Material designated

CONFIDENTIAL may be disclosed only to the individuals identified in Section 10 below
for the purposes listed in Section 4 above. Designated Material designated HIGHLY
CONFIDENTIAL--OUTSIDE COUNSEL ONLY may be disclosed only to the
individuals identified in Section 11 below for the purposes listed in Section 4 above. A
Designating Party may designate Designated Material at the time of delivery of the
Designated Material to a Receiving Party.
7. Means of designating Designated Material. Parties will identify Designated Material,
if reasonably possible, by stamping or otherwise endorsing the words CONFIDENTIAL—
SUBJECT TO PROTECTIVE ORDER or HIGHLY CONFIDENTIAL—OUTSIDE
COUNSEL ONLY—SUBJECT TO PROTECTIVE ORDER on each page or image of the
Designated Material.

Interrogatories or responses to interrogatories, other discovery

requests and responses or court submissions should be designated as CONFIDENTIAL or
HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY to the extent that they
contain Designated Material. All Designated Material that is either (1) not reduced to
documentary or tangible form or (2) not reasonably susceptible to designation by stamping
or endorsement, such as documents produced in native format, should be designated by (1)

28
5

Case 2:09-cv-01531-JAT Document 90

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Filed 03/19/10 Page 6 of 22

informing the Receiving Party of such designation in writing simultaneously with
production of the Designated Material and (2) labeling production disks or other containers
for such Designated Material with the appropriate legend.
8. Inadvertent failure to designate. Inadvertent failure to designate Discovery Material
as CONFIDENTIAL or HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY as
set forth in Paragraph 7 above does not operate as a waiver of any claim that the Discovery
Material is entitled to protection under this Protective Order, provided that the Producing
Party notifies all Receiving Parties that such Discovery Material is CONFIDENTIAL or
HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY within ten (10) days of the
Producing Party’s discovery of the failure to designate. Within ten (10) days of such a
discovery, any Producing Party may designate Discovery Material as CONFIDENTIAL or
HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY, with the effect that the
Discovery Material thereafter will be subject to the protections of this Protective Order as if
the desired designation originally had been made, by informing the Receiving Party, in
writing, of that designation and simultaneously producing to the Receiving Party copies of
the Designated Material designated using one of the means described in Paragraph 7 above.
In the event that a Party designates previously undesignated material under this Paragraph,
each Receiving Party promptly must: (i) take reasonable steps to retrieve that Designated
Material, including any summaries and/or notes related to that Designated Material, to the
extent it has been disclosed to persons who would not be authorized to view it under
Paragraphs 10 or 11 below; and (ii) destroy any unmarked copies of that Designated
Material within ten (10) days of receiving a designation under this Paragraph.
9. Designation of deposition transcripts. Any Party or Third Party may designate any
deposition transcript, in whole or in part, as CONFIDENTIAL or HIGHLY
CONFIDENTIAL—OUTSIDE COUNSEL ONLY by so stating on the record or by giving
notice in writing to the other Parties and Third Parties within ten (10) days of receipt of the
deposition transcript, prior to which time all deposition transcripts will be treated as

28
6

Case 2:09-cv-01531-JAT Document 90

1
2
3
4
5
6
7
8
9

CONFIDENTIAL or HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY in their
entirety. Whenever a Party or Third Party expects to designate deposition testimony as
CONFIDENTIAL or HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY, that
Party will have the right to exclude from attendance at the deposition every person except
the deponent, the stenographer, the videographer, and those individuals authorized under
Paragraphs 10 or 11 below to receive the Designated Material.

contents of the videotape are subject to the Protective Order, substantially as set forth
below:
This videotape contains confidential testimony used in this

11

Litigation and is not to be viewed or the contents thereof to be

12

displayed or revealed except by order of the Court, or

13

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

If a deposition is

videotaped, the original and all copies of the videotape must be marked to indicate that the

10

14

Filed 03/19/10 Page 7 of 22

pursuant to written stipulation of the Parties.
Only persons to whom Designated Material may be disclosed under Paragraph 10 below
may be present in a deposition for testimony relating to material designated
CONFIDENTIAL. Only persons to whom Designated Material may be disclosed under
Paragraph 11 below may be present in a deposition for testimony relating to material
designated HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY.
10.

Disclosure of Material Designated CONFIDENTIAL.

Material designated

CONFIDENTIAL and information obtained from such material may be disclosed only to
the following persons:
(a)

the Receiving Party’s outside counsel of record in this Litigation and
members, associates, and employees of the firms of counsel of record for the
Parties, except any attorney, agent or technical specialist that is involved in
the drafting or prosecution of patent applications relating to bulk acoustic
wave (BAW) devices or filters (this provision is not to be interpreted to bar

27
28
7

Case 2:09-cv-01531-JAT Document 90

1

outside counsel of record in this litigation from participating in any re-

2
3

examination proceedings involving any of the opposing party’s patents);
(b)

4
5

(c)

(d)

retained or employed by a Receiving Party in this Litigation;
(e)

11

(f)

from that Designated Material or information regarding that Designated

15

Material, but only during deposition, trial or other hearing in this Litigation;
(g)

17

(h)

Protective Order;
(i)

the Receiving Party’s trial consulting services for this Litigation;

(j)

persons who have been retained by the Receiving Party to provide translation

23
24

or interpretation from one language to another;
(k)

25
26

anyone who received particular Designated Material during this Litigation
provided that they obtained the Designated Material in accordance with this

20

22

anyone who received particular Designated Material before this Litigation
commenced; or

19

21

authors, drafters, addressees, recipients, or custodians of particular
Designated Material whose identity is disclosed in or otherwise discernible

14

18

independent graphics or demonstrative services providing services to a
Receiving Party in this Litigation;

13

16

independent stenographic personnel, court reporters, videographers, imaging
providers, database service providers, or photocopying service providers

9

12

Experts, as defined in Paragraph 3(e) above, but only after compliance with
the terms of Paragraph 13 below;

8

10

judges, magistrate judges, law clerks, court reporters, and clerical personnel
of any Court that hears matters related to this Litigation;

6
7

Filed 03/19/10 Page 8 of 22

any other person to whom the Producing Party agrees beforehand, in writing,
that disclosure may be made;

(l)

any person by order of the Court permitting such disclosure; and

27
28
8

Case 2:09-cv-01531-JAT Document 90

1

(m)

2

for each Party, one designated in-house attorney who has responsibility for
supervising this Litigation. The designated in-house attorneys for each Party

3

are:

4

For TriQuint: Joseph Pugh; and

5
6
7
8
9
10

For Avago: Floyd E. Anderson
11.

Disclosure of Material Designated HIGHLY CONFIDENTIAL—OUTSIDE

COUNSEL ONLY.

the following persons:
(a)

Parties, except any attorney, agent or technical specialist that is involved in

13

the drafting or prosecution of patent applications relating to bulk acoustic

14

wave (BAW) devices or filters (this provision is not to be interpreted to bar

15

outside counsel of record in this litigation from participating in any re-

16

examination proceedings involving any of the opposing party’s patents);
(b)

18

(c)

(d)

retained or employed by a Receiving Party in this Litigation;
(e)

25

27

independent stenographic personnel, court reporters, videographers, imaging
providers, database service providers, or photocopying service providers

23

26

Experts, as defined in Paragraph 3(e) above, but only after compliance with
the terms of Paragraph 13;

22

24

judges, magistrate judges, law clerks, court reporters, and clerical personnel
of any Court that hears matters related to this Litigation;

20
21

the Receiving Party’s outside counsel of record in this Litigation and
members, associates, and employees of the firms of counsel of record for the

12

19

Material designated HIGHLY CONFIDENTIAL—OUTSIDE

COUNSEL ONLY and information obtained from such material may be disclosed only to

11

17

Filed 03/19/10 Page 9 of 22

independent graphics or demonstrative services providing services to a
Receiving Party in this Litigation;

(f)

authors, drafters, addressees, recipients, or custodians of particular
Designated Material whose identity is disclosed in or otherwise discernible

28
9

Case 2:09-cv-01531-JAT Document 90

1

from that Designated Material or information regarding that Designated

2
3

Material, but only during deposition, trial or other hearing in this Litigation;
(g)

4
5

(h)

Protective Order;
(i)

the Receiving Party’s trial consulting services for this Litigation;

(j)

persons who have been retained by the Receiving Party to provide translation

10
11

or interpretation from one language to another;
(k)

12
13
14
15
16
17

(l)

shall be provided under the HIGHLY CONFIDENTIAL--OUTSIDE COUNSEL ONLY
designation only and shall be subject to the following additional restrictions:
(a)

Producing Party's counsel. The Producing Party shall provide access to this
stand-alone computer during regular business hours on reasonable notice.
(b)

22

27

The Producing Party shall produce such code in computer-searchable
format, such as computer-searchable PDFs, sufficient to allow a user to

23

26

Such code shall be provided on a stand-alone computer (i.e., not connected
to a network or the Internet) in a secure location at the offices of the

20

25

any person by order of the Court permitting such disclosure.

12. Additional restrictions on access to source code. Access to sensitive source code

19

24

any other person to whom the Producing Party agrees beforehand, in writing,
that disclosure may be made;

18

21

anyone who received particular Designated Material during this Litigation
provided that they obtained the Designated Material in accordance with this

7

9

anyone who received particular Designated Material before this Litigation
commenced; or

6

8

Filed 03/19/10 Page 10 of 22

search and view the code.
(c)

At the request of the Receiving Party, the Producing Party must provide
paper copies of reasonable portions of the code at the time of inspection by
the Receiving Party, which outside counsel for the Receiving Party may
take when completing an inspection. The paper copies must be kept in a

28
10

Case 2:09-cv-01531-JAT Document 90

1

secured location at the offices of the Receiving Party’s outside counsel at

2

all times. No additional copies of such code may be made except as

3
4

provided in subsections (d) and (e) below.
(d)

5

copies, and only of the specific pages, as the Receiving Party intends to

7

actually use at the deposition. At the conclusion of the deposition, the

8

Producing Party will collect each copy of the code and will retain the

9

original of any such exhibit, which shall not be appended to the transcript

10

of the deposition.
(e)

12

relevant filing, make only as many copies, and only of the specific pages as

14

needed, for submission to the Court; however, nothing in this Order shall

15

be construed as granting any party advance leave to file any document

16

under seal.

17

21
22
23
24
25
26
27

See Local Rule Civil 5.6.

If a party seeks to file a

document under seal, such party must follow the procedures outlined

18

20

A Receiving Party that wants to file or otherwise submit any code to the
Court in connection with a filing may, no earlier than 24 hours prior to the

13

19

A Receiving Party that wants to use any code at a deposition may, no
earlier than 24 hours prior to any such deposition, make only as many

6

11

Filed 03/19/10 Page 11 of 22

in paragraph 15 below.
(f)

Outside counsel for the Receiving Party shall maintain a complete log of
Bates-numbered pages of code printed and shall produce such log at the
time its first expert reports are delivered. For security purposes, this log
must be produced to the Producing Party regardless of any other stipulation
limiting expert discovery. Further, the log will be supplemented with each
new expert report and ten (10) days after trial. Paper copies shall include
Bates numbers and HIGHLY CONFIDENTIAL--OUTSIDE COUNSEL ONLY
labels when printed, but the Producing Party shall not undertake any effort
to track or otherwise determine which pages of code have been printed.

28
11

Case 2:09-cv-01531-JAT Document 90

1
2

13. Identification and opportunity to object to Experts.
(a)

3

Paragraph 3(e) above) any Designated Material first must make a written

5

request to the Designating Party that (1) sets forth the full name of the

6

Expert and the city and state of his or her primary residence; (2) attaches a

7

copy of the Expert’s current resume or curriculum vitae; (3) identifies the

8

Expert’s current employer(s) and any relationship between the Expert and the

9

Party; (4) to the extent available and that it can be done without violating the

10

Expert’s confidentiality obligations to Third Parties, identifies each person or

11

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

12

her areas of expertise or to whom the expert has provided professional

13

services at any time during the preceding ten (10) years; (5) identifies (by

14

name and case number, filing date, and location of court or tribunal) any

15

litigation or arbitration in connection with which the Expert has provided any

16

professional services during the preceding ten (10) years; and (6) attaches an

17

executed copy of the “Acknowledgement of Stipulated Protective Order”

18

attached to this Protective Order as Exhibit A.
(b)

20

Expert unless, within ten (10) days of delivering the request, the Party

22

receives a written objection from the Designating Party. Any such objection

23

25
26
27

A Party that makes a request and provides the information specified in
Paragraph 13(a) above may disclose Designated Material to the identified

21

24

Unless otherwise ordered by the Court or agreed in writing by the
Designating Party, a Party that seeks to disclose to an “Expert” (as defined in

4

19

Filed 03/19/10 Page 12 of 22

must set forth in detail the grounds on which it is based.
(c)

If a Producing Party objects and that objection is not resolved by agreement
of the Parties, the Producing Party must, within ten (10) days after failing to
reach agreement, apply to the Court for an order preventing disclosure, using
the joint discovery dispute process of Paragraph 5 above. No disclosure of

28
12

Case 2:09-cv-01531-JAT Document 90

1

Designated Material to an Expert as to whom an objection has been made

2

may occur until the objection is resolved in favor of making the proposed

3

disclosure. Failure to object or apply to the Court within the time period set

4

forth above operates as consent to the proposed disclosure as set forth in the

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Filed 03/19/10 Page 13 of 22

notification.
14. Reasonable protection of Designated Material. Counsel for the Parties must employ
reasonable protective measures to ensure that the information and documents governed by
this Protective Order are used only for purposes permitted under this Protective Order, and
disclosed only to persons authorized by this Protective Order. All Designated Material
must be kept in a secure manner by each Receiving Party and by those who are authorized
to receive Designated Material.
15. Designated Material presented to the Court. Nothing in this order shall be
construed as automatically permitting a party to file under seal. Before any party
files any document under seal such party shall seek leave of Court and shall show
“compelling reasons” (dispositive motion) or “good cause” (non-dispositive motion)
for filing under seal. See Kamakana v. City and County of Honolulu, 447 F.3d 1172,
1179-80 (9th Cir. 2006). Additionally, such party seeking to file under seal shall,
within the applicable deadline, file a redacted, unsealed version of any motion,
response or reply if such party is waiting for a ruling from the Court on filing an
unredacted, sealed version of the same document. 1 Further, no portion of the trial
of the matter shall be conducted under seal.
16. Potential legally compelled disclosure of Designated Material. If a Receiving Party
that has obtained Designated Material pursuant to this Protective Order: (a) is subpoenaed
1

The Court notes that in the event a party wants to use the other party’s
confidential designations to support or oppose a motion, the provisions of this
paragraph would shift the burden to that party to make the “compelling reasons”
showing, which is inconsistent with the case cited. In the event a party anticipates
this scenario arising, the party wishing to use the confidential information shall
initiate a discovery dispute conference call consistent with the terms of this Court’s
Rule 16 Scheduling Order at least two weeks before the filing in which they wish to
reference the documents is due.
13

Case 2:09-cv-01531-JAT Document 90

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Filed 03/19/10 Page 14 of 22

in another proceeding; (b) is served with a discovery request in another action to which it is
a party; or (c) is served with any other legal process by any person or entity not a Party to
this Litigation, for the purpose of obtaining the disclosure of such Designated Material, that
Receiving Party must give timely written notice of its receipt of such subpoena, demand or
legal process to counsel of record for the Parties and any applicable Third Party so as to
allow any Party or applicable Third Party at least ten (10) days, or such lesser time as such
subpoena, demand or legal process specifies for production, to intervene to prevent
disclosure of the Designated Material. Provided that such notice is given, nothing herein
requires any person or entity subject to this Protective Order to object to, challenge, or
appeal any order requiring production of any Designated Material, or to subject itself to
any penalties for noncompliance with any subpoena, discovery request, or legal process, or
to seek any relief from any Court.
17. No restrictions of disclosure or use of own Designated Material. Nothing herein
restricts in any manner any Party’s disclosure or use of its own Designated Material.
18. Notice of unauthorized disclosure of Designated Material. In the event that any
Designated Material is disclosed to someone not authorized to receive such material under
this Protective Order, or if a person so authorized breaches any of his or her obligations
under this Protective Order, counsel of record for the Receiving Party that disclosed
Designated Material must immediately disclose the unauthorized disclosure or breach to
the Producing Party’s counsel in writing, and also must use best efforts to obtain the return
or destruction of all copies of the Designated Material and to prevent any further disclosure
of the same.
19. Objections to designations. If a Receiving Party objects to the designation of any
Discovery Material, the Party so objecting may state the objection in writing to counsel of
record for the Designating Party, with copies to all Parties’ counsel in this Litigation. After
providing this notice of objection, the Parties (and if the Designating Party is a Third Party,
such Third Party or its counsel) must confer within seven (7) days in an attempt to resolve

28
14

Case 2:09-cv-01531-JAT Document 90

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

the dispute over the designation of the Designated Material. If the Parties (and/or Third
Parties, if applicable) are unable to resolve the dispute, the Receiving Party may within an
additional seven (7) days move the Court to remove or downgrade the designation, using
the joint discovery dispute process of Paragraph 5 above. Until the Court rules on the
merits of the dispute, the Designated Material to which objection has been made must be
treated by each Receiving Party as designated.
20. No prejudice to request for in camera treatment. Using the discovery dispute
process discussed in paragraph 5 above, the parties may move the Court to review
certain documents in camera. The parties must use the discovery dispute process
even if they stipulate that the Court should review the documents in camera.
21.

No applicability to clean-source information. None of the provisions of this

Protective Order apply to the following categories of information, documents and/or things,
and any Receiving Party may apply to remove any designation from Designated Material
based upon a showing that such documents or information have been:
(a)

available to the public prior to their production in this Litigation;

(b)

available to the public after the time of their production through no

17

unauthorized act, or failure to act, on behalf of the Receiving Party, its

18
19

counsel, representatives or Experts;
(c)

20
21

(d)

obtained outside of this Litigation by the Receiving Party from the Producing
Party without having been designated as CONFIDENTIAL or HIGHLY

23

CONFIDENTIAL—OUTSIDE COUNSEL ONLY; provided, however, that

24

26

known to the Receiving Party or shown to have been independently
discovered by the Receiving Party prior to their production herein;

22

25

Filed 03/19/10 Page 15 of 22

this provision does not negate any pre-existing obligation of confidentiality;
(e)

obtained by the Receiving Party from a Third Party having the right to
disclose the same; or

27
28
15

Case 2:09-cv-01531-JAT Document 90

1

(f)

2

5
6
7
8
9
10
11
12
13
14
15
16
17

not by inadvertence or mistake.
22. Final disposition. Upon final termination of this Litigation, and exhaustion of all
avenues of appeal, each Receiving Party must either (1) assemble and return to the
appropriate Producing Party or (2) destroy, and subsequently certify to the Producing Party
destruction of, all Designated Material (except attorney work product) and all copies
thereof. Notwithstanding this provision, counsel are entitled to retain an archival copy of
all pleadings, motion papers (including exhibits), transcripts, deposition exhibits, hearing
exhibits, trial exhibits, legal memoranda, correspondence, or attorney work product, even if
such materials contain Designated Material. Counsel are also entitled to retain electronic
copies of Designated Material created through the routine, good-faith operation of
counsel’s standard archival and backup procedures. Any such archival copies that contain
or constitute Designated Material remain subject to this Protective Order as set forth in
Paragraph 32 below.
23. Nondisclosure of Expert drafts.
(a)

18
19

(b)

actually relied upon by such Expert in formulating opinions that are

22

25
26

Conversations or communications between any Expert and counsel shall not
be subject to discovery unless the conversations or communications are

21

24

Experts shall not be subject to discovery of any draft of their reports,
affidavits, declarations or witness statements in this matter.

20

23

previously produced, disclosed, and/or provided by the Producing Party to
the Receiving Party or a Third Party without obligation of confidentiality and

3
4

Filed 03/19/10 Page 16 of 22

presented in reports or testimony in this matter.
(c)

Any correspondence or memoranda between any Expert and counsel shall
not be subject to discovery unless the correspondence or memoranda are
actually relied upon by such expert in formulating opinions that are presented
in reports or testimony in this matter.

27
28
16

Case 2:09-cv-01531-JAT Document 90

1

(d)

2

in formulating opinions that are presented in reports or testimony in this

4

matter.

5

(e)

6

opinions, or other materials to a testifying Expert, who then relies on such

8

information, opinions, or other materials in formulating opinions that are

9

12
13
14
15

presented in reports or testimony in this matter.
24.

Non-waiver of attorney-client privilege, work-product doctrine, and other

applicable privileges and immunities. The Parties and their counsel will take reasonable
steps to identify and prevent disclosure of information protected by the attorney-client
privilege, work-product doctrine, or any other privilege or immunity (“Privileged
Material”) prior to the disclosure of any such information to any Receiving Party.
(a)

16

(1) request, in writing, that the Privileged Material be returned or destroyed;

18

and

19

(2) provide the information required by Federal Rule of Civil Procedure

20

26(b)(5)(A) regarding the basis of the Producing Party’s assertion that the

21

Privileged Material is, in fact, privileged or otherwise immune from

22

24
25

If, however, a Producing Party discovers the disclosure of Privileged
Material, that Producing Party may, within ten (10) days of such discovery:

17

23

No discovery can be taken from any Expert who does not testify except to
the extent that such non-testifying Expert has provided information,

7

11

Any notes taken or writings made by any Expert shall not be subject to
discovery unless the notes or writings are actually relied upon by such Expert

3

10

Filed 03/19/10 Page 17 of 22

discovery (collectively, a “Clawback Request”).
(b)

Because each Party will take reasonable steps to identify and prevent
disclosure of Privileged Material, any disclosure of Privileged Material will
be presumed to be inadvertent.

26
27
28
17

Case 2:09-cv-01531-JAT Document 90

1

(c)

2

immunity that might attach to the Privileged Material.

4

(d)

5

(1) return or destroy the inadvertently produced Privileged Material

7

identified in the Clawback Request (“Clawback Material”) and any

8

copies and derivations it has; and

9

(2) certify, in writing, that it has returned or destroyed all Clawback Material

10

and any copies and derivations it had.

11

(e)

12

The cost, if any, of returning or destroying Clawback Material will be borne
by the Producing Party.

13

(f)

14

The Receiving Party, after having certified that it has returned or destroyed
Clawback Material, may seek production of that Clawback Material under

15

the Federal Rules of Civil Procedure, but disclosure of Clawback Material

16

(i) does not operate as a waiver of the attorney-client privilege, work-product

17

doctrine, or any other privilege or immunity and (ii) may not be used as

18

evidence that any disclosure of the Clawback Material was not inadvertent.

19

(g)

20

The Receiving Party may not, under any circumstances, use or disclose any
information regarding or derived from Clawback Material in this Litigation,

21

including in support of any motion or other request for production of

22

Clawback Material by, for example, presenting some or all of the Clawback

23

26

Within five (5) days of the Receiving Party’s receipt of a Producing Party’s
Clawback Request, the Receiving Party must:

6

25

If a Producing Party makes a Clawback Request, no Receiving Party may
thereafter contend that the disclosure operated as a waiver of any privilege or

3

24

Filed 03/19/10 Page 18 of 22

Material to the Court under seal for a determination of the claim of privilege.
25.

No effect on ethical duties relating to Privileged Material. Nothing in this

Protective Order affects the ethical obligations of any Receiving Party in the event that the
Receiving Party identifies Discovery Material that may be subject to a claim of protection

27
28
18

Case 2:09-cv-01531-JAT Document 90

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26

Filed 03/19/10 Page 19 of 22

under the attorney-client privilege, work-product doctrine, or any other privilege or
immunity.
26. No prejudice to any Party’s rights under Federal Rule of Evidence 502 and other
applicable law. Nothing in this Protective Order affects any right of any Party to argue
under Federal Rule of Evidence 502 or any other applicable law that any disclosure of
Privileged Material did not operate as a waiver.
27. Amendment of this Protective Order. Nothing herein prevents a Party from seeking
to amend the terms of this Protective Order.
28. No effect on admissibility. Nothing in this Protective Order affects the evidentiary
admissibility of any Discovery Material in this Litigation. The designation of Discovery
Material under this Protective Order will not, for that reason alone, bar its introduction or
use at any court proceeding related to this Litigation under such terms and conditions as the
Court may deem appropriate, consistent with the need for a complete and accurate record
of the proceedings; provided, however, that every effort will be made, through the use of
procedures agreed upon by the Parties or otherwise, to preserve the confidentiality of
Designated Material.
29. No effect on duty to counsel clients. Nothing in this Protective Order restricts any
counsel from advising any Party regarding this Litigation and, in the course of giving such
advice, relying on Designated Material, provided that, in rendering such advice and
otherwise communicating with any Party that is a client, counsel must not disclose any
Designated Material, nor the source of any Designated Material, to anyone not authorized
to receive such Designated Material under this Protective Order.
30. No contractual effect. To the extent the Parties have agreed on the terms of this
Protective Order, such stipulation is for the Court’s consideration and approval as a
Protective Order. The Parties’ stipulation does not create a contract between the Parties or
among the Parties and their respective counsel.

27
28
19

Case 2:09-cv-01531-JAT Document 90

1
2
3
4
5
6
7
8
9
10

Filed 03/19/10 Page 20 of 22

31. Effective date. On entry by the Court, this Protective Order will be binding on the
Parties and their respective counsel, successors, assigns, subsidiaries, divisions, and
employees, effective as of the date of its execution.
32.

Survival of obligations. Duties under this Protective Order will survive final

resolution of this Litigation. Persons and entities subject to this Protective Order will
remain subject to the confidentiality obligations of this Protective Order until the Producing
Party agrees otherwise in writing or this Court (or any other Court of competent
jurisdiction) orders otherwise.

This Court will retain jurisdiction for the purpose of

enforcing the terms of this Protective Order.
Dated this 19th day of March, 2010.

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
20

Case 2:09-cv-01531-JAT Document 90

Filed 03/19/10 Page 21 of 22

1
2
3
4

UNITED STATES DISTRICT COURT

5

DISTRICT OF ARIZONA

6
TRIQUINT SEMICONDUCTOR, INC.,

Case No. CV 09-1531 PHX JAT

7
Plaintiff
and
Counterclaim Defendant,

8
9
10
11

v.
AVAGO
TECHNOLOGIES
LIMITED,
AVAGO TECHNOLOGIES U.S., INC., AND
AVAGO TECHNOLOGIES WIRELESS IP
(SINGAPORE) PTE.

12
Defendants
and
Counterclaim Plaintiffs.

13
14
15

ACKNOWLEDGEMENT OF STIPULATED PROTECTIVE ORDER

16
17

1.

My name is __________________________________.

2.

I live at ___________________________________________________.

3.

I am employed as _______________________________(state position) by
____________________________________________________________
______ (state name, address and telephone number of employer).

4.

I am aware that the parties have entered into a Stipulated Protective Order
(the “Protective Order”) in the above-captioned action in the United States
District Court for the District of Arizona. A copy of the Protective Order
has been given to me. I have carefully read and understand it.

5.

I promise and agree that documents and information designated as
CONFIDENTIAL or HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL
ONLY under the Protective Order will be used by me only under and in
accordance with the terms of the Protective Order.

18
19
20
21
22
23
24
25
26
27
28
21

Case 2:09-cv-01531-JAT Document 90

1

6.

I promise and agree that I will not disclose or discuss CONFIDENTIAL
information or documents with any person other than those persons
specifically listed in the Protective Order and under the procedures therein
specified.

7.

I promise and agree that I will not disclose or discuss HIGHLY
CONFIDENTIAL—OUTSIDE COUNSEL ONLY information or
documents with any person other than those persons specifically listed in
the Protective Order and under the procedures therein specified.

8.

I promise and agree that I will use CONFIDENTIAL and HIGHLY
CONFIDENTIAL—OUTSIDE COUNSEL ONLY information solely for
the purposes of the above-captioned action.

8.

I promise and agree not to disclose any CONFIDENTIAL or HIGHLY
CONFIDENTIAL—OUTSIDE COUNSEL ONLY information to any
other person, firm or concern in violation of the terms of the Protective
Order and that I will not use any CONFIDENTIAL or HIGHLY
CONFIDENTIAL—OUTSIDE COUNSEL ONLY information, directly or
indirectly, in competition with the party that disclosed it nor will I allow
any other person to do so.

9.

I understand that any use or disclosure of CONFIDENTIAL or HIGHLY
CONFIDENTIAL—OUTSIDE COUNSEL ONLY information or
documents or any portions or summaries thereof, or any information
obtained therefrom, in any manner contrary to the provisions of the
Protective Order, may subject me to personal liability and the sanctions of
the Court.

10.

I agree to submit to the jurisdiction of the United States District Court for
the District of Arizona for purposes of enforcing the terms of this Protective
Order, even if such enforcement proceedings occur after termination of this
Litigation.

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

Filed 03/19/10 Page 22 of 22

22
23

DATED this ______ day of _______________, 20___.

24
25

Printed Name

26
27

(Signature)

28
22