2-Way Computing, Inc. v. Sprint Nextel Corporation et al

Filing 39

PROTECTIVE ORDER Granting 38 Stipulated Protective Order. Signed by Magistrate Judge Peggy A. Leen on 5/20/11. (Copies have been distributed pursuant to the NEF - ASB)

Case 2:11-cv-00012-JCM -PAL Document 38

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Filed 05/19/11 Page 1 of 13

Paul A. Stewart (Admitted Pro Hac Vice)
[e-mail]
Milan S. Kapadia (Admitted Pro Hac Vice)
[e-mail]
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, 14th Floor
Irvine, CA 92614
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff/Counterdefendant
2-WAY COMPUTING, INC.

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William H. Boice (Admitted Pro Hac Vice)
[e-mail]
Steven D. Moore (Admitted Pro Hac Vice)
[e-mail]
K. James Sangston (Admitted Pro Hac Vice)
[e-mail]
Kristopher L. Reed (Admitted Pro Hac Vice)
[e-mail]
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4528
Telephone: [phone]
Facsimile: [phone]

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Attorneys for Defendants/Counterclaimants
SPRING NEXTEL CORPORATION
and SPRINT SOLUTIONS, INC.

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[FOR A COMPLETE LISTING OF COUNSEL
REFER TO SIGNATURE PAGE]

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF NEVADA

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) Case No.: 2:11-cv-00012-JCM-(PAL)
)
)
) STIPULATED
Plaintiff,
)
) PROTECTIVE ORDER
v.
)
)
SPRINT NEXTEL CORPORATION, a
)
Kansas corporation; and SPRINT
SOLUTIONS, INC., a Delaware corporation, )
)
)
Defendants.
)
)
AND RELATED COUNTERCLAIM
)
2-WAY COMPUTING, INC., a Nevada
corporation,

Case 2:11-cv-00012-JCM -PAL Document 38

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Filed 05/19/11 Page 2 of 13

STIPULATED PROTECTIVE ORDER

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WHEREAS, the parties consider certain information likely to be disclosed during

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discovery to be confidential within the meaning of Rule 26(c) of the Federal Rules of Civil

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Procedure;

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WHEREAS, the parties mutually desire that a protective order limiting use, access to,
and disclosure of such confidential information be entered;
It is hereby AGREED and STIPULATED among the parties and ORDERED
pursuant to Rule 26(c) of the Federal Rules of Civil Procedure as follows:
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Any document, deposition testimony, or other information disclosed in this

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case, or any portion thereof, may be designated as “Confidential,” “Confidential – Counsel

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Only,” or “Highly Confidential – Source Code” by any party or witness if such party or

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witness reasonably believes in good faith that such material is properly entitled to protection

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under Rule 26(c)(1)(G) of the Federal Rules of Civil Procedure.

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2.

Information, documents, or other things subject to protection under this Order

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(“Protected Material”) shall be identified as “Confidential,” “Confidential -- Counsel Only,”

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or “Highly Confidential – Source Code.”

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Counsel Only,” or “Highly Confidential – Source Code” shall be placed clearly on each page

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or portion of the Protected Material at the time the Protected Material is produced. If a party

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through inadvertence produces or provides discovery of any Protected Material without first

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labeling, marking or designating it as “Confidential,” “Confidential -- Counsel Only,” or

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“Highly Confidential – Source Code,” then the Producing Party may, within ten (10) days

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after the discovery of the inadvertent production, give written notice to the receiving party or

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parties that the Protected Material is “Confidential,” “Confidential -- Counsel Only,” or

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“Highly Confidential – Source Code” and should be treated in accordance with the provisions

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of this Order. The receiving party or parties must treat such Protected Material in accordance

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with this Order from the date such notice is received. Disclosure of such Protected Material

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prior to receipt of such notice to persons not authorized to receive it shall not be deemed a

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violation of this Order; however, those persons to whom disclosure was made shall be

The words “Confidential,” “Confidential --

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Case 2:11-cv-00012-JCM -PAL Document 38

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promptly advised by the receiving party that the material disclosed was “Confidential,”

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“Confidential -- Counsel Only,” or “Highly Confidential – Source Code” and must be treated

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in accordance with this Order.

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3.

In the event the Producing Party elects to produce files and records for

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inspection, and the inspecting party desires to inspect files, no marking need be made by the

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Producing Party in advance of the initial inspection. For purposes of the initial inspection, all

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documents and information within the produced files shall be considered as designated

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“Confidential -- Counsel Only.”

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copying by the inspecting party, the Producing Party shall mark the copies of such documents

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as may contain Protected Material with the appropriate confidentiality marking at the time the

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copies are produced to the inspecting party.

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4.

Thereafter, upon selection of specified documents for

Protected Material classified as “Confidential” may be disclosed only to the

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following persons, except upon the prior written consent of the designating party or further

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order of the Court:

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a. Outside attorneys of record in this matter, and regular employees of such

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attorneys assigned to and necessary to assist in the conduct of this action,

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as well as in-house counsel for each party, provided that in-house counsel

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are materially involved in the prosecution, defense, or settlement of this

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matter, and provided further that such in-house counsel comply with

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Paragraph 8 of this Protective Order. In-house counsel in this matter and

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under this provision shall include one (1) in-house attorney for Motorola

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Mobility, Inc., in its capacity of indemnitor of Sprint Nextel Corporation

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and Sprint Solutions, Inc., who is materially involved in the prosecution,

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defense, or settlement of this matter in this action;

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b. Officers and employees for each party, provided that they are materially

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involved in the prosecution, defense, or settlement of this matter, and

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provided further that such persons comply with Paragraph 8 of this

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Stipulated Protective Order;

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Case 2:11-cv-00012-JCM -PAL Document 38

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c. Independent experts and consultants (collectively, “experts”) retained in

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this action by the outside attorneys of record, provided that the expert

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satisfies the conditions set forth in Paragraph 5 of this Protective Order;

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d. A witness during a deposition or at trial who, on the face of the document,

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is clearly an author or recipient of the document;

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e. Court reporters or videographers who are preparing transcripts of

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testimony of a witness in this case;

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f. Outside vendors who perform scanning, photocopying, computer

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classifications or similar clerical functions, as well as jury consultants, trial

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consultants, and graphics and animation specialists, but only for so long as

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necessary to perform those services and no documents or copies shall be

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retained; and

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g. This Court and any court to which an appeal in this action might lie.
5.

No expert shall receive Protected Material under Paragraph 4(c) or Paragraph

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6 of this Stipulated Protective Order unless and until the conditions set forth in this Paragraph

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5 are met. The parties currently disagree as to whether a person employed by one of the

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parties may serve as an expert in this matter. The parties have agreed to discuss whether an

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employee may be permitted to be an expert under Paragraph 5 if this becomes an issue later

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in the case. In the event the parties are unable to reach agreement, the party seeking to

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designate an employee as an expert may apply to the Court for relief. The parties agree that,

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except as provided by Paragraph 4(b), no “Confidential,” “Confidential -- Counsel Only,” or

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“Highly Confidential – Source Code” materials may be shown to any such employee absent

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agreement of the parties or Court order. However, an expert retained by a Party or its counsel

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as an outside expert in other matters shall not, merely by this fact, be considered an employee

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of a party. Any expert must be provided with a copy of this Stipulated Protective Order and

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must comply with Paragraph 8 of this Stipulated Protective Order.

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acknowledgement form of Paragraph 8 must be sent to opposing counsel, together with the

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following information regarding the expert: name, present employer and title, and a resume

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The signed

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or similar description of prior work/employment, all past consulting relationships, a list of all

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cases in which, in the last 4 years, the expert testified at trial or by deposition, and all past and

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present affiliations with any party. Opposing counsel shall have ten (10) calendar days after

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receipt of the expert’s identification and signed acknowledgment to object in good faith, in

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writing, to disclosure of Protected Material on the basis that disclosure of Protected Material

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to the proposed expert would result in material risk of disclosure or misuse of the Protected

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Material. Opposing counsel then shall have ten (10) additional calendar days to file a motion

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for a protective order to exclude the proposed expert from receiving Protected Material.

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Failure to object or file a motion within the time permitted by this Paragraph 5 shall be

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deemed a waiver of any objection to the expert’s access to the information. If a timely

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objection is made, no disclosure of Protected Material shall be made to the expert until the

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objection is resolved by the Court or the time for filing a motion under this Paragraph has

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expired.

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6.

Certain financial, pricing, cost, licensing, supplier, vendor, marketing,

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business strategy, sales, customer, engineering, development and technical information that is

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particularly sensitive and/or of immediate competitive significance may be designated

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“Confidential -- Counsel Only.” Care shall be taken by the Producing Party to use the

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designation “Confidential -- Counsel Only” only where the Producing Party has a good faith

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belief that such protection is needed. Access to all Protected Material that is designated

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“Confidential -- Counsel Only” shall be limited to only those persons designated in

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paragraphs 4(a), (c), (d), (e), (f), and (g) above.

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7.

The parties shall only designate Protected Material as “Highly Confidential –

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Source Code” if it contains proprietary “Source Code,” which is defined herein as including,

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but not limited to, software code, source code, object code, executable code, source code

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listing, object code listing and documents that describe such software code, whether in

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electronic or printed form. Protected Material designated as “Highly Confidential – Source

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Code” may only be disclosed to outside attorneys of record in this matter, and regular

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employees of such attorneys assigned to and necessary to assist in the conduct of this action,

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Case 2:11-cv-00012-JCM -PAL Document 38

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and those persons identified in paragraph 4(c), (d), (e), (f), and (g) above.

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designated expert under Paragraph 4(c) may make up to three printouts or excerpts of source

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code for use in preparation of expert reports, provided that any such printouts, excerpts, and

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expert reports are also subject to the restrictions of access imposed in this paragraph. Further,

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the printouts or excerpts should only be a reasonable number of pages that is necessary for

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case preparation activity. The Producing Party shall Bates number and label any printouts or

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excerpts provided to the Receiving Party. Any printouts or excerpts must be marked “Highly

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Confidential – Source Code” and must be kept in a secured locked area in their offices. Any

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reports, exhibits, testimony, or other communication(s) that are to be filed with or presented

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to the Court that refer to, relate to, or include any portion of the source code shall be limited

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to only that necessary to support the argument made in referencing the Source Code and must

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be designated as “Highly Confidential – Source Code” and lodged with the Court as provided

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in Paragraph 9, and remain subject to the access restrictions imposed by this paragraph.

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Source Code, and any Protected Material designated as “Highly Confidential – Source Code,”

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shall be made available for inspection during regular business hours at the Requesting Party’s

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choice of one of the offices of the Producing Party’s outside attorneys of record on three

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business days written notice on one stand-alone computer (that is, not connected to any

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network, without limitation, a Local Area network (LAN) or the Internet, and shall not be

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connected to a modem). The stand-alone computer shall have a copy of Microsoft Word

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installed on it. No electronic copies of Source Code shall be made. No recording devices,

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recordable media, or other electronic devices (including but not limited to sound recorders,

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computers, cellular telephones, peripheral equipment, cameras, CDs, DVDs, floppy drives,

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zip drives, thumb drives, USB memory sticks, portable hard drives, BlackBerry® devices,

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Dictaphones, or telephone jacks) will be permitted inside the room housing the Source Code

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at the offices of the outside attorneys of record for the Producing Party. A designated expert

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may take notes relating to the Source Code, but may not copy the Source Code into the notes.

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Such notes shall be treated the same as the printouts and/or excerpts mentioned above.

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///

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Further, a

Case 2:11-cv-00012-JCM -PAL Document 38

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8.

Filed 05/19/11 Page 7 of 13

Prior to disclosure of Protected Material to any person enumerated in

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Paragraph 4(b) or (c), or any in-house counsel identified per paragraph 4(a), the person

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receiving such Protected Material shall execute the attached Agreement To Be Bound By

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Protective Order and a copy of such executed Agreement shall be retained by counsel for the

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receiving party. A copy of the executed Agreement shall be provided to counsel for the

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Producing Party within the time frame set forth in Paragraph 5 in the case of disclosure to an

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expert; and at least five (5) calendar days prior to disclosure of Protected Information in the

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case of disclosure to a person enumerated in Paragraph 4(b).

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9.

In the case of applications, motions or other papers submitted to the Court in

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which a party submits Protected Materials, all documents containing Protected Materials that

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are submitted to the Court shall be filed in accordance with the Court’s proposed L.R. 10-5(b)

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regarding filing documents under seal.

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10.

All notes, extracts, and summaries of Protected Material shall also be

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considered Protected Material and shall be subject to the terms of this Order. All copies of

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Protected Material shall be considered Protected Material.

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11.

A party shall not be obligated to challenge the propriety of a “Confidential,”

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“Confidential -- Counsel Only,” or “Highly Confidential – Source Code” classification at the

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time made, and a failure to do so shall not preclude a subsequent challenge thereto. Any

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party may request, in good faith, in writing to the party who produced Protected Material that

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the classification be modified or withdrawn. A request presumptively is not made in good

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faith if it seeks the de-designation of over 100 documents at one time if such documents are

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not presented as a category of documents with a common reason the party requesting de-

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designation believes show why the group of documents as a whole should be de-designated.

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If the designating party does not agree to reclassification within ten (10) days of receipt of the

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written request, the Requesting Party may apply to the Court for relief. Agreement of the

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parties to this Order shall not be construed as an agreement or admission by one party that

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any information classified as “Confidential,” “Confidential -- Counsel Only,” or “Highly

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Confidential – Source Code” by the other party is in fact confidential information. In

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Case 2:11-cv-00012-JCM -PAL Document 38

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determining whether any such designation is proper, the Court shall be governed by the

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standards set forth in Fed. R. Civ. P. 26(c) and the case law thereunder. The burden of proof

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and persuasion shall be on the party seeking to maintain confidentiality.

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12.

Protected Material disclosed through testimony or otherwise at any deposition

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in this litigation may be designated as “Confidential,” “Confidential -- Counsel Only,” or

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“Highly Confidential – Source Code” by any party or the witness by indicating on the record

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at the deposition or by written notice to the opposing party and the court reporter within

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fourteen (14) days of receipt of a transcript thereof. All transcripts shall be treated as

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“Confidential – Outside Counsel Only” until expiration of the fourteen (14) day period,

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unless otherwise agreed by the parties and witness on the record at the deposition or in

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writing. The court reporter shall designate those portions of the deposition transcripts which

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are designated on the record as Protected Material with the appropriate “Confidential,”

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“Confidential -- Counsel Only,” or “Highly Confidential – Source Code” legend. If Protected

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Material is to be disclosed during a deposition, any persons present who are not authorized to

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receive such material shall be asked to leave the deposition until such time as the testimony

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no longer involves disclosure of such material.

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13.

This Order shall not bar any attorney identified in paragraph 4(a) above in the

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course of rendering advice to his or her client from referring to or relying in a general way

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upon his or her examination of Protected Material produced or exchanged herein, provided

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however, that in rendering such advice and otherwise communicating with his or her client,

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the attorney shall not disclose the specific contents or substance of any Protected Material

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produced by another party herein if that disclosure would be contrary to the terms of this

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Order.

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14.

Except as set forth in Paragraph 14 of this Stipulated Protective Order, all

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Protected Material, including information contained in Protected Material, may be used only

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for the purposes of the present litigation, including all appeals, and in proceedings to enforce

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a subpoena in connection with this litigation. In all appeals and proceedings to enforce a

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subpoena, the party relying upon the Protected Material shall use appropriate procedures to

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Case 2:11-cv-00012-JCM -PAL Document 38

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ensure that the Court treats the Protected Material as “Confidential,” “Confidential – Counsel

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Only,” and “Highly Confidential – Source Code” in accordance with this Stipulated

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Protective Order. At the conclusion of this litigation, by final judgment, settlement, or

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otherwise, each party shall promptly return to the other party all Protected Material produced,

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disclosed, or designated by such other party during this litigation. Alternatively, a party may

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destroy these materials and certify in writing that it has done so. Notwithstanding the

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foregoing, outside counsel may retain an archival copy of documents filed with the Court,

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deposition transcripts with exhibits, and discovery responses that contain Protected Material,

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provided such archival copies are maintained in confidence. Except as provided above,

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neither party shall retain a copy in any form of Protected Material after the termination of this

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litigation. The treatment accorded Protected Material under this Order shall survive the

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termination of this action.

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15.

In the event that a party seeks discovery from a non-party to this action, either

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the non-party or the parties may invoke the terms of this Order with respect to any Protected

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Material provided to the parties by the non-party by so advising all parties in this suit in

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writing. Any non-party that discloses Protected Material under this Order shall be entitled to

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the rights of a party under this Protective Order with respect to those produced materials.

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16.

Nothing in this Stipulated Protective Order shall restrict a party’s use of its

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own Protected Materials. Similarly, nothing in this Order shall be deemed in any way to

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restrict the use of information that is lawfully obtained or publicly available to a party

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independently of discovery in this action, whether or not such information has also been

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obtained during the course of discovery in the action.

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17.

Execution and entry of this Order shall not prevent a party to the litigation or a

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non-party under Paragraph 15 from seeking modification of or relief from this Order or from

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seeking other relief or protective orders as may become appropriate or necessary to efficiently

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prepare this matter for trial.

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///

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///

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Case 2:11-cv-00012-JCM -PAL Document 38

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Dated: May 19, 2011

Dated: May 19, 2011

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/s/ Paul A. Stewart
Mark Borghese, Esq.
BORGHESE LEGAL LTD.
10161 Park Run Drive, Ste. 150
Las Vegas, NV 89145

/s/Matthew M. Lubozynski (with permission)
Gregory A. Brower
Chad R. Fears
SNELL & WILMER LLP
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, Nevada 89169

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Paul A. Stewart, Esq.
Milan S. Kapadia, Esq.
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, 14th Floor
Irvine, CA 92614

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Attorneys for Plaintiff

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William H. Boice
Steven D. Moore
K. James Sangston
Matthew M. Lubozynski
Kristopher L. Reed
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4528

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Attorneys for Defendants

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IT IS SO ORDERED.

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Dated: May 20, 2011

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Honorable Peggy A. Leen
UNITED STATES MAGISTRATE JUDGE

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Case 2:11-cv-00012-JCM -PAL Document 38

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Filed 05/19/11 Page 11 of 13

EXHIBIT A

Case 2:11-cv-00012-JCM -PAL Document 38

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF NEVADA

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) Case No.: 2:11-cv-00012-JCM-PAL
)
)
Plaintiff,
)
)
v.
)
)
)
SPRINT NEXTEL CORPORATION, a
)
Kansas corporation; and SPRINT
SOLUTIONS, INC., a Delaware corporation, )
)
)
Defendants.
)
)
AND RELATED COUNTERCLAIM
)
2-WAY COMPUTING, INC., a Nevada
corporation,

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AGREEMENT TO BE BOUND BY PROTECTIVE ORDER

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In consideration of the disclosure to me or production by me of certain information

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which is or, upon production, may be designated as subject to a Protective Order of the Court,

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I agree as follows:

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1.

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terms.
2.

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I have read the Protective Order in this case and I agree to be bound by its

I understand that if I violate the terms of the Protective Order, I may be
subject to a contempt of court proceeding.

3.

I agree to submit to the jurisdiction of the Court for the purpose of
enforcement of this Protective Order.

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Dated:

(Signature)

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(Print Name)
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(Address)
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(Address)

Case 2:11-cv-00012-JCM -PAL Document 38

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Filed 05/19/11 Page 13 of 13

CERTIFICATE OF SERVICE

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I, Paul A. Stewart, certify that on May 19, 2011, I presented the within [Proposed]

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Stipulated Protective Order to the Clerk of Court for filing and uploading to the ECF system

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which will send notification to the following:

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Greg A. Brower
Chad R. Fears
SNELL & WILMER, LLP
3883 Howard Hughes Parkway, Suite 1100
Las Vegas, NV 89169

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William H. Boice
Steven D. Moore
K. James Sangston
Kristopher L. Reed
KILPATRICK TOWNSEND & STOCKTON LLP
1100 Peachtree Street, Suite 2800
Atlanta, GA 30309-4528

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I declare under penalty of perjury that the foregoing statements are true and correct.
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/s/ Paul A. Stewart
Paul A. Stewart
KNOBBE, MARTENS, OLSON & BEAR, LLP
2040 Main Street, Fourteenth Floor
Irvine, CA 92614

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Attorneys for Plaintiff,
2-WAY COMPUTING, INC.

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11263619
051911