Content Interactive LLC v. Cox Communications, Inc. et al

Filing 50

PROTECTIVE ORDER. Signed by Magistrate Judge Carl W. Hoffman on 11/7/11. (Copies have been distributed pursuant to the NEF - MMM)

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 1 of 27

1
2

UNITED STATES DISTRICT COURT

3

DISTRICT OF NEVADA

4
5

CONTENT INTERACTIVE LLC,
Case No. 2:11-cv-00314-ECR-CWH
Plaintiff,

6
7

v.

8

COX COMMUNICATIONS, INC., et
al.

9

[PROPOSED] STIPULATED
PROTECTIVE ORDER IN A PATENT
CASE

Defendants.

10

JURY TRIAL DEMANDED

11
12
13
14
15
16

Proceedings and Information Governed.
1.

This Order (“Protective Order”) is made under Fed. R. Civ. P. 26(c) and

governs any Discovery Materials designated as Confidential, Confidential Outside
Counsel Only, and Highly Restricted Confidential - Source Code as those terms are

17
18

defined below, furnished by Plaintiff or a Defendant (each hereinafter a “Party”) to any

19

other Party in the above styled and numbered case and any adjunct subpoena proceedings

20

incident hereto before any tribunal (the “Litigation”). This Protective Order further

21

applies to any non-party (“Third Party”) who produces documents or things in connection

22
23
24
25

with this Litigation regardless of whether such production is made pursuant to subpoena.
Definitions.
2.

(a) “Discovery Materials” means anything produced or provided by any

26

Party to another Party or by any Third Party to a Party in this Litigation, including, but

27

not limited to, documents, things, deposition testimony, responses to interrogatories,

28

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 2 of 27

responses to requests for admission, responses to requests for production of documents,

2

deposition transcripts and videos, deposition exhibits, source code, and other writings or

3

things produced, given, served, or filed in this Litigation, as well as any copies, excerpts,

4

abstracts, analyses, summaries, descriptions, or other forms of recorded information

5
6
7

containing, reflecting, or disclosing such information.
(b)

“Producing Party” or “Designating Party” means a Party to this Litigation,

8

or any Third Party, on behalf of which documents, things, or information are furnished,

9

produced, or disclosed, whether voluntarily or in response to a request for discovery or by

10
11
12

court order, during the course of this Litigation.
(c)

“Receiving Party” means a Party to which documents, things, or

information are furnished, disclosed, or produced during the course of this Litigation.

13
14

(d)

A designation of “Confidential” shall mean that the Discovery Material so

15

designated includes, discloses, or comprises, in whole or in part, trade secrets or

16

commercial information that is not publicly known and is of technical or commercial

17

advantage to its possessor, or other information required by law or agreement to be kept

18
19
20
21
22

confidential.
(e)

A designation of “Confidential Outside Counsel Only” shall mean that the

Discovery Material so designated includes, discloses, or comprises, in whole or in part,
information that the Producing Party deems especially sensitive, which may include, but

23
24
25
26
27

is not limited to, confidential research and development, financial, technical, marketing,
or any other sensitive or trade secret information.
(f)

A designation of “Highly Restricted Confidential - Source Code” shall

mean that the Discovery Material so designated includes source code or other electronic

28
-2-

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 3 of 27

files used in network operations, comments for source code or network operation files, or

2

revision histories.

3

Designation and Maintenance of Information.

4
5

3.

Confidential, Confidential Outside Counsel Only, and Highly Restricted

Confidential - Source Code information does not include, and this Protective Order does

6
7

not apply to (1) information that is already lawfully in the knowledge or possession of the

8

Receiving Party, unless that Party is already bound by agreement not to disclose such

9

information, (2) information that has been disclosed to the general public in a manner

10

making such information no longer confidential, (3) information that the Receiving Party

11
12

can show was obtained (without any benefit or use of confidential Discovery Material)

13

from a third party having the right to disclose such information to the Receiving Party

14

without restriction or obligation of confidentiality, (4) information that the Receiving

15

Party can show by written record was independently developed by it after the time of

16
17

disclosure by personnel who did not have access to the Producing Party’s confidential

18

Discovery Material, or (5) information that was submitted to a governmental entity

19

without request for confidential treatment.

20

4.

Discovery Materials produced during the course of this Litigation within

21
22

the scope of paragraph 2(d) above may be designated by the Producing Party as

23

containing Confidential information by placing on each page and each thing a legend

24

substantially as follows:

25
26
27

“CONFIDENTIAL” or “CONFIDENTIAL SUBJECT TO PROTECTIVE
ORDER”

28
-3-

Case 2:11-cv-00314-ECR -CWH Document 47

1

5.

Filed 11/04/11 Page 4 of 27

Discovery Materials produced during the course of this Litigation within

2

the scope of paragraph 2(e) above may be designated by the Producing Party as

3

containing Confidential Outside Counsel Only information by placing on each page and

4

each thing a legend substantially as follows:

5
6

“CONFIDENTIAL OUTSIDE COUNSEL ONLY” or “CONFIDENTIAL

7

OUTSIDE COUNSEL ONLY SUBJECT TO PROTECTIVE ORDER”

8

6.

9

Discovery Materials produced during the course of this Litigation within

the scope of paragraph 2(f) above may be designated by the Producing Party as

10
11
12
13
14

containing Highly Restricted Confidential - Source Code Information by placing on each
page and each thing a legend substantially as follows:
“HIGHLY RESTRICTED CONFIDENTIAL - SOURCE CODE” or “HIGHLY
RESTRICTED

CONFIDENTIAL

-

SOURCE

CODE

SUBJECT

TO

15
16
17
18
19

PROTECTIVE ORDER”
7.

In the event that a Party chooses to produce documents in native format, the

designation may be made by (1) producing the documents in a database and including the
designation in a separate database field, (2) affixing a label to the media on which the

20
21

native documents are being produced, (3) including the designation in the native

22

document’s file name, or (4) providing notice of such designation by any other means

23

agreed to in writing by both the Receiving Party and the Producing Party. To the extent a

24

Receiving Party intends to use a document produced in native format for depositions,

25
26
27

pleadings, trial, or for any other purpose where the identification of individual pages is
necessary, that Party shall number the individual pages of the document (such that, for

28
-4-

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 5 of 27

example, with respect to information produced in native format and marked with the

2

bates number “227543,” a Party wishing to use that information in a deposition will

3

number the individual pages as “227543.1, 227543.2, ...”).

4

8.

A Party may designate Discovery Materials disclosed at a deposition as

5
6

Confidential, Confidential Outside Counsel Only, or Highly Restricted Confidential -

7

Source Code by requesting the reporter to so designate the transcript or any portion of the

8

transcript at the time of the deposition. If no such designation is made at the time of the

9

deposition, any Party will have twenty-one (21) calendar days after receipt of the

10
11

deposition transcript to designate, in writing to the other Parties and to the court reporter,

12

whether the transcript or any portion thereof is to be designated as Confidential,

13

Confidential Outside Counsel Only, or Highly Restricted Confidential - Source Code.

14

During this twenty-one (21) calendar day period, the transcript must be treated as

15
16

Confidential Outside Counsel Only, unless the Producing Party consents to less

17

confidential treatment of all or some of the transcript. If no such designation is made at

18

the time of the deposition or within this twenty-one (21) calendar day period, the entire

19

deposition will be considered devoid of Confidential, Confidential Outside Counsel Only,

20
21

or Highly Restricted Confidential - Source Code information. Each Party and the court

22

reporter must attach a copy of any final and timely written designation notice to the

23

transcript and each copy of the transcript in its possession, custody or control, and the

24

portions designated in such notice must thereafter be treated in accordance with this

25
26
27

Protective Order. It is the responsibility of outside counsel of record for each Party to
maintain materials containing Confidential, Confidential Outside Counsel Only, or

28
-5-

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 6 of 27

Highly Restricted Confidential - Source Code information in a secure manner and

2

appropriately identified so as to allow access to such information only to such persons

3

and under such terms as is permitted under this Protective Order.

4

9.

In the case of written discovery responses and the information contained

5
6

therein, the responses may be designated as containing Confidential, Confidential Outside

7

Counsel Only, or Highly Restricted Confidential - Source Code information by means of

8

a statement at the conclusion of each response that contains such information specifying

9

the level of confidentiality and by placing a legend on the front page of such discovery

10
11

responses stating: CONTAINS [the highest level of designation contained in the answers]

12

INFORMATION.

13

Inadvertent Failure to Designate or Claim Privilege.

14
15

10.

The inadvertent failure to designate Discovery Materials in accordance with

this Protective Order or to withhold information, documents, or other things as subject to

16
17

the attorney-client privilege, the attorney work product doctrine, or other applicable

18

immunity, privilege, or exemption from discovery, will not be deemed to waive a later

19

claim as to its confidential or privileged nature.

20

11.

In the case of a failure to designate Discovery Materials under the

21
22

Protective Order, such failure shall not preclude the Producing Party from making

23

appropriate designations at a later date in writing and with particularity. The newly

24

designated information must be treated by any Receiving Party in accordance with its

25

new designation from the time the Receiving Party is notified in writing of the change.

26
27
28

If, prior to receiving such notice, the Receiving Party has disseminated the Discovery
Materials to individuals not authorized to receive it hereunder, it shall make a reasonable
-6-

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 7 of 27

effort to retrieve the Discovery Materials or to otherwise assure that the recipient(s)

2

properly mark and maintain the confidentiality of the Discovery Materials, but shall have

3

no other responsibility or obligation with respect to the information disseminated.

4

12.

If a Producing Party inadvertently discloses to a Receiving Party

5
6

information that is subject to the attorney-client privilege, the attorney work product

7

doctrine, or that is otherwise privileged or immune from discovery, the Producing Party

8

shall promptly, upon learning of such disclosure, so advise the Receiving Party in

9

writing. Should the Receiving Party reasonably believe that the Producing Party

10
11

inadvertently produced privileged Discovery Materials, the Receiving Party shall

12

promptly notify the Producing Party in writing. The Producing Party shall respond within

13

five (5) business days confirming the privilege status of the Discovery Materials in

14

question. If the Producing Party notifies the Receiving Party that the inadvertently

15
16

produced Discovery Materials are privileged, then within five (5) business days of receipt

17

of the notice the Receiving Party shall return or destroy all copies of the identified

18

Discovery Materials, including those that have been shared with experts, consultants, and

19

vendors, and confirm in writing that all such documents or information have been

20
21

returned or destroyed. The Producing Party shall provide a privilege log for the

22

inadvertently produced materials within ten (10) business days of its original notice to the

23

Receiving Party. No Party to this Litigation shall thereafter assert that such disclosure

24

waived any claim of attorney-client privilege, attorney work product, or other privilege or

25
26
27

immunity. The Receiving Party returning such inadvertently produced Discovery
Materials may move the court for an Order compelling production of such documents in

28
-7-

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 8 of 27

accordance with the Federal Rules of Civil Procedure (based on information independent

2

of the content of the allegedly privileged materials in question). The motion shall be filed

3

under seal and shall not assert that the inadvertent production by the Producing Party

4

waived any claim of attorney-client privilege, attorney work product, or other privilege or

5
6

immunity. Outside counsel of record shall not be required to delete information that may

7

reside on their respective firms’ electronic back-up systems that are over-written in the

8

normal course of business.

9
10

Challenge to Designations.
13.

A Receiving Party may challenge a Producing Party’s designation of

11
12

information as Confidential, Confidential Outside Counsel Only, or Highly Restricted

13

Confidential - Source Code at any time. Unless a prompt challenge to a Designating

14

Party’s confidentiality designation is necessary to avoid foreseeable, substantial

15

unfairness, unnecessary economic burdens, or a significant disruption or delay of the

16
17

litigation, a Party does not waive its right to challenge a confidentiality designation by

18

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

19

Any Receiving Party disagreeing with a designation may request in writing that the

20

Producing Party change the designation. A Receiving Party that elects to initiate a

21
22

challenge must do so in good faith and explain in writing the basis for its belief that the

23

confidentiality designation was improper. The Producing Party will then have fourteen

24

(14) calendar days after receipt of a challenge notice to advise the Receiving Party

25

whether or not it will change the designation. If the Parties are unable to reach agreement

26
27
28

after the expiration of this fourteen (14) calendar day time-frame, the Receiving Party
may at any time thereafter seek an Order from the Court that specified information or
-8-

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 9 of 27

categories of information are not properly designated as Confidential, Confidential

2

Outside Counsel Only, or Highly Restricted Confidential - Source Code. Until any

3

dispute under this paragraph is ruled upon by the Court, the Producing Party’s

4

designation will remain in full force and effect, and the information will continue to be

5
6
7
8
9
10

accorded the designated level of confidential treatment required by this Protective Order.
Disclosure and Use of Confidential Information.
14.

Absent agreement in writing by the Producing Party or Order of the Court,

information designated as Confidential, Confidential Outside Counsel Only, or Highly
Restricted Confidential - Source Code may only be used for purposes of preparation,

11
12

trial, and appeal of this Litigation. This Protective Order has no effect upon and shall not

13

apply to (a) any Producing Party’s use of its own Confidential, Confidential Outside

14

Counsel Only, or Highly Restricted Confidential - Source Code materials for any

15

purpose, (b) any use of documents or other information developed or obtained

16
17
18
19
20

independently of discovery in this Litigation for any purpose, or (c) non-confidential
documents produced in this Litigation.
15.

Nothing in this Protective Order shall bar or otherwise restrict outside

counsel from rendering advice to a Party-client in this Litigation and, in the course

21
22

thereof, relying generally on Confidential, Confidential Outside Counsel Only, or Highly

23

Restricted Confidential - Source Code information; provided, however, that counsel shall

24

not disclose, reveal or describe any such materials in a manner not specifically authorized

25

(if authorized at all) under this Protective Order.

26
27
28

16.

Subject to paragraphs 21 and 22 below, and except as prohibited by

paragraph 14 above, information designated Confidential may be disclosed by the
-9-

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 10 of 27

Receiving Party only to the following individuals, provided that such individuals agree to

2

be bound by the terms of this Protective Order: (a) no more than two (2) in-house

3

attorneys of a Party who act in a legal capacity for the Receiving Party (or an affiliate

4

thereof in the case of a corporate Party), who are responsible for supervising this

5
6

Litigation and are identified in paragraph 17 below; (b) outside counsel of record for the

7

Receiving Party; (c) supporting personnel employed by outside counsel, such as

8

paralegals, legal secretaries, data entry clerks, legal clerks, and private photocopying

9

services; (d) independent experts or consultants and employees and assistants under the

10
11

control of such expert or consultant, who (i) is engaged by outside counsel of record in

12

this action, whether or not such expert or consultant is paid directly by a Party, and (ii) is

13

not employed by or associated with a Party, other than by the Producing Party, provided

14

however that disclosure to such persons shall be made only on the conditions set forth in

15
16

paragraph 21 below; (e) any persons requested by outside counsel of record to furnish

17

services such as document coding, image scanning, translation services, court reporting

18

services, demonstrative exhibit preparation, the creation of a computer database from

19

documents for outside counsel of record’s use only, and non-technical jury or trial

20
21
22
23
24

consulting services (expressly excluding mock jurors); and (f) the court and its personnel.
17.

Documents designated as Confidential may be disclosed and disseminated

to Marcus Delgado, in-house counsel for Cox Communications, Inc., Elizabeth Nelson,
in-house counsel for Palms Casino Resort, and Karlton Butts and Edward Treska, in-

25
26
27

house counsel for Content Interactive LLC. In the event that in-house counsel identified
herein is no longer responsible for supervising this Litigation and a Party wishes to

28
- 10 -

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 11 of 27

disclose Confidential documents to in-house counsel not identified herein, the Party

2

seeking to amend this paragraph shall notify opposing counsel of the name and affiliation

3

of such in-house counsel. Opposing counsel shall have ten (10) business days after

4

receipt of such notice to object to disclosure of Confidential documents to the proposed

5
6
7
8
9

in-house counsel. During the pendency of the ten (10) day notice period, the proposed
in-house counsel shall not have access to Confidential documents.
18.

Subject to paragraphs 21 and 22 below, and except as prohibited by

paragraph 14 above, information designated as Confidential Outside Counsel Only may

10
11

be disclosed by the Receiving Party only to the individuals identified in paragraphs 16(b),

12

16(c), 16(d), 16(e), and 16(f) above, provided that such individuals agree to be bound by

13

the terms of this Protective Order.

14

19.

Highly Restricted Confidential - Source Code material and any information

15
16

contained therein may be disclosed only to the following persons and in strict accordance

17

with the following procedures:

18

a.

19

Highly Restricted Confidential - Source Code Material, to the extent

in electronic format, will be provided on a standalone computer with all ports, software,

20
21

and other avenues that could be used to copy or transfer such data blocked (“Standalone

22

Computer”). The Standalone Computer shall be maintained in the sole control and

23

custody of counsel of record for the producing party and shall be maintained in the

24

United States at an office of counsel of record for the producing party in Las Vegas,

25
26
27

Nevada, or at such other location as shall be mutually agreed to by the parties.
b.

Highly Restricted Confidential - Source Code Material, to the extent

28
- 11 -

Case 2:11-cv-00314-ECR -CWH Document 47

1
2
3
4

Filed 11/04/11 Page 12 of 27

not in electronic format, shall be designated in the manner provided in paragraph 6 above.
c.

Only persons designated under paragraphs 16(b) and 16(d) above

shall have access to the Standalone Computer provided however that the following
additional restrictions shall apply to such access:

5
(i)

6

at least ten (10) business days prior to the date on which

7

access is sought to such Standalone Computer, counsel of record for the Receiving Party

8

shall provide a list of individuals including attorneys seeking to access such Standalone

9

Computer and the Producing Party shall have the right to object to such access in

10
11

accordance with paragraph 21 herein;
(ii)

12
13

during the pendency of the ten day notice period, no listed

individual shall have access to the Standalone Computer;

14

(iii)

if an objection to any specific listed individual is made, that

15
16
17

individual shall not have access to the Standalone Computer until resolution of such
objection; and

18
19

(iv)

each time a person accesses the Standalone Computer, the

person shall sign a sign-in sheet prior to, and a sign-out sheet subsequent to, accessing the

20
21
22
23
24

Standalone Computer including the name of the person accessing, the date and time in
and out, and whether any hard copies were made.
d.

The Receiving Party shall not have the right to, and agrees not to,

copy, transmit or duplicate Highly Restricted Confidential - Source Code materials in any

25
26
27

manner, including scanning or otherwise creating an electronic image of the Highly
Restricted Confidential - Source Code materials, except as set forth herein.

28
- 12 -

Case 2:11-cv-00314-ECR -CWH Document 47

(i)

1

Filed 11/04/11 Page 13 of 27

A printer shall be attached to the Standalone Computer and

2

the Receiving Party shall make no more than 1000 total pages of hard copies of Highly

3

Restricted Confidential - Source Code material it in good faith considers to be necessary

4

to proving elements of its case. In the event that the Receiving Party in good faith

5
6

believes that it must exceed the 1000 total page limit of hard copies of Restricted

7

Confidential – Source Code material in order to prove elements of its case, it shall request

8

consent from the Producing Party prior to exceeding the page limit. Such consent shall

9

not be unreasonably withheld.

10
(ii)

11

Whenever hard copies are made, copies of the hard copies

12

shall be provided to counsel for the Producing Party along with an identification of when

13

the copies were made and who made them.

14

(iii)

Any hard copies shall be conspicuously marked Highly

15
16

Restricted Confidential - Source Code in conformity with paragraph 6 above.
(iv)

17
18
19

Receiving Party shall keep a log including: (a) the custodian

of each copy of any Highly Restricted Confidential - Source Code materials; (b) the
names of all persons accessing the Highly Restricted Confidential - Source Code

20
21
22
23
24

materials; and (c) the date and time of access of the Highly Restricted Confidential Source Code materials.
e.

All Highly Restricted Confidential - Source Code materials,

including all copies, in the possession of the receiving party shall be maintained in a

25
26
27

secured, locked area.
f.

All Highly Restricted Confidential - Source Code materials utilized

28
- 13 -

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 14 of 27

during a deposition or marked as an exhibit at a deposition will be retrieved by the party

2

conducting the deposition at the end of each day. At no time, will any Highly Restricted

3

Confidential - Source Code material be given to or left with the Court Reporter or any

4

other individual.

5
g.

6
7
8
9

Receiving Party shall not convert any of the information contained

in the hard copies into an electronic format.
20.

Individuals (including without limitation outside counsel, experts, and

consultants) who review or otherwise learn of technical information designated

10
11

Confidential Outside Counsel Only or Highly Restricted Confidential - Source Code

12

under this Protective Order shall not prepare, prosecute, supervise, or assist in the

13

prosecution of any patent application pertaining to systems for distributing video content

14

to users in one or more separate locations, including those related to residential or

15
16

commercial (e.g., hotel) VOD systems, as may be contained in the Confidential Outside

17

Counsel Only or Highly Restricted Confidential – Source Code information actually

18

reviewed or otherwise learned by such individuals; provided that nothing in this

19

paragraph shall operate to preclude any such individual from making non-confidential

20
21

information available for potential submission to the United States Patent and Trademark

22

Office. This prohibition shall begin when the Confidential Outside Counsel Only or

23

Highly Restricted Confidential – Source Code information is first reviewed or learned by

24

the affected individual, and shall end within two (2) years from disclosure of the

25
26
27

technical information or one (1) year after conclusion of the litigation (including any
appeals), whichever period is longer. This prosecution bar is personal to the individuals

28
- 14 -

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 15 of 27

who review or otherwise learn of such Confidential Outside Counsel Only/Highly

2

Restricted Confidential – Source Code materials and shall not be imputed to any other

3

person or entity who has not reviewed or otherwise learned of such materials. To ensure

4

compliance with the purpose of this provision, those individuals who actually review or

5
6

otherwise learn of the technical information designated Confidential Outside Counsel

7

Only or Highly Restricted Confidential – Source Code shall not discuss the subject matter

8

of such technical information with those individuals who prepare, prosecute, supervise or

9

assist in the prosecution of any patent application pertaining to the same or substantially

10
11
12

the same subject matter of the patent-in-suit, as described above.
21.

Prior to disclosing Confidential, Confidential Outside Counsel Only or

13
14

Highly Restricted Confidential - Source Code information to a Receiving Party’s

15

proposed expert or consultant, the Receiving Party must provide to the Producing Party

16

(a) a signed Confidentiality Agreement in the form attached to this Protective Order as

17

Exhibit A, (b) the resume or curriculum vitae of the proposed expert or consultant,

18
19

including identifying the proposed expert’s or consultant’s current employer, (c) the

20

proposed expert’s or consultant’s current and past consulting relationships in the industry,

21

and (d) a listing of cases in which the proposed expert or consultant has testified as an

22

expert at trial or by deposition within the preceding four years preceding the date on

23
24

which the expert or consultant executes Exhibit A. The Producing Party will thereafter

25

have ten (10) business days from receipt of the Confidentiality Agreement to object to

26

any proposed individual. The objection must be made for good cause and in writing,

27

stating with particularity the reasons for the objection. Failure to object within ten (10)

28
- 15 -

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 16 of 27

business days constitutes approval. If the Parties are unable to resolve any objection, the

2

Receiving Party may apply to the Court to resolve the matter. There will be no disclosure

3

to any proposed individual during the ten (10) business day objection period, unless that

4

period is waived by the Producing Party, or, if any objection is made, until the Parties

5
6
7
8
9

have resolved the objection or the Court has ruled upon any resultant motion.
22.

Outside counsel of record is responsible for the adherence by third-party

vendors to the terms and conditions of this Protective Order. Outside counsel of record
may fulfill this obligation by obtaining a signed Confidentiality Agreement in the form

10
11

attached as Exhibit B, but failure to obtain an executed copy of Exhibit B from a third-

12

party vendor shall not absolve (a) the third-party vendor from abiding by the terms of this

13

Protective Order; or (b) outside counsel of record from ensuring compliance with this

14

Protective Order by third-party vendors.

15
16

23.

At a deposition or trial, Confidential, Confidential Outside Counsel Only,

17

or Highly Restricted Confidential - Source Code information may be disclosed to a

18

person who is not already allowed access to such information under this Protective Order

19

if: (a) the information was previously received or authored by the person or, subject to

20
21

timely objection including objection that such person is not internally authorized to

22

receive such information, was authored or received by a director, officer, employee or

23

agent of the company for which the person is testifying as a designee under Fed. R. Civ.

24

P. 30(b)(6); or (b) outside counsel of record for the Party designating the material agrees

25
26

in writing that the material may be disclosed to the person. Disclosure of material

27
28
- 16 -

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 17 of 27

pursuant to this paragraph does not constitute a waiver of the confidential status of the

2

material so disclosed.

3

Disclosure to Witnesses.

4
5

24.

(a) Any person currently employed by a Party, retained as an expert witness

by a Party, or designated by a Party as a witness under Fed. R. Civ. P. 30(b)(6) may be

6
7

examined upon deposition concerning any Discovery Materials designated by such Party

8

as Confidential, Confidential Outside Counsel Only, or Highly Restricted Confidential -

9

Source Code.

10

(b)

Any person other than those identified in paragraph 23(a) who is or may be

11
12

a witness may be examined upon deposition concerning any Discovery Materials marked

13

Confidential, Confidential Outside Counsel Only, or Highly Restricted Confidential -

14

Source Code, only if the document or other Discovery Material indicates on its face that

15

the person was an author, addressee or recipient of the document, the document came

16
17

from such person’s files, or prior deposition testimony reveals that the person was

18

provided with or had access to the document, or if the witness is someone entitled to see

19

the document pursuant to paragraphs 16, 17, 18 or 19 above.

20

Non-Party Information.

21

25.

The existence of this Protective Order must be disclosed to any Third Party

22
23

producing Discovery Materials in the Litigation who may reasonably be expected to

24

desire confidential treatment for such Discovery Materials. Any such person may

25

designate documents, tangible things, or testimony confidential pursuant to this

26

Protective Order.

27
28

Filing Documents With the Court.
- 17 -

Case 2:11-cv-00314-ECR -CWH Document 47

1

26.

Filed 11/04/11 Page 18 of 27

All transcripts of depositions, exhibits, answers to interrogatories,

2

pleadings, briefs, and other documents submitted to the Court which have been

3

designated as Confidential, or Confidential Outside Counsel Only, or which contain

4

information so designated, shall be filed under seal in a manner prescribed by the Court

5
6
7
8
9
10

for such filings.
No Prejudice.
27.

Producing or receiving confidential information, or otherwise complying

with the terms of this Protective Order, will not: (a) operate as an admission by any Party
that any particular Confidential, Confidential Outside Counsel Only, or Highly Restricted

11
12

Confidential - Source Code Discovery Materials contains or reflects trade secrets or any

13

other type of confidential or proprietary information; (b) prejudice the rights of a Party to

14

object to the production of information or material that the Party does not consider to be

15

within the scope of discovery; (c) prejudice the rights of a Party to seek a determination

16
17

by the Court that particular materials be produced; (d) prejudice the rights of a Party to

18

apply to the Court for further protective orders; (e) prevent the Parties from agreeing in

19

writing to alter or waive the provisions or protections provided for in this Protective

20

Order with respect to any particular information or material; or (f) operate as an

21
22

admission by any Party that any particular Confidential, Confidential Outside Counsel

23

Only, or Highly Restricted Confidential - Source Code information is admissible.

24

Conclusion of Litigation.

25
26

28.

Within sixty (60) calendar days after entry of final judgment in this

Litigation, including the exhaustion of all appeals, or within sixty (60) calendar days after

27
28

dismissal pursuant to a settlement agreement or otherwise, each Party or other person
- 18 -

Case 2:11-cv-00314-ECR -CWH Document 47

1

Filed 11/04/11 Page 19 of 27

subject to the terms of this Protective Order is under an obligation to destroy or return to

2

the Producing Party all Discovery Materials containing Confidential, Confidential

3

Outside Counsel Only or Highly Restricted Confidential - Source Code information, and

4

to certify to the Producing Party that this destruction or return has been completed.

5
6

However, outside counsel of record for any Party is entitled to retain all court papers, trial

7

transcripts, exhibits, and attorney work product, provided that any such materials are

8

maintained and protected in accordance with the terms of this Protective Order.

9
10

Other Proceedings.
29.

By entering this Protective Order and limiting the disclosure of Discovery

11
12

Materials in this Litigation, the Court does not intend to preclude this or another court

13

from finding that information may be relevant and subject to disclosure in another case.

14

Any person or Party subject to this Protective Order who may be subject to a motion to

15

disclose another Party’s information designated under this Protective Order must

16
17

promptly notify that Party of the motion so that the Party may have an opportunity to

18

appear and be heard on whether that information should be disclosed.

19

Remedies.

20
21

30.

It is Ordered that this Protective Order will be enforced by the sanctions set

forth in Fed. R. Civ. P. 37(b) and any other sanctions as may be available to the Court,

22
23

including the power to hold Parties or other violators of this Protective Order in

24

contempt. All other remedies available to any person injured by a violation of this

25

Protective Order are fully reserved.

26

31.

Any Party may petition the Court for good cause shown if the Party desires

27
28

relief from a term or condition of this Protective Order.
- 19 -

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 20 of 27

1
2

Dated: November 3, 2011

Stipulated to by:

3
/s Brandon C. Fernald
Brandon C. Fernald (Nevada Bar #10582)
FERNALD LAW GROUP LLP
2300 West Sahara Ave., Suite 800
Las Vegas, Nevada 89102
[phone]/FAX [phone]
[e-mail]

4
5
6
7

(admitted pro hac vice)
Edward E. Casto, Jr. Esq.
Ryan P. Griffin, Esq.
NELSON BUMGARDNER CASTO, P.C.
3131 West 7th St., Suite 300
Fort Worth, Texas 76107
Tel: [phone]
Fax: [phone]
Email: [e-mail]
[e-mail]

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

Dated: November 3, 2011

Stipulated to by:
/s Ryan A Loosevelt
Ryan A. Loosvelt (SBN 8550)
DUANE MORRIS LLP
100 North City Parkway, Suite 1560
Las Vegas, NV 89106
Tel: [phone]; Fax: [phone]
Email: [e-mail]
[e-mail]
Joseph A. Powers
Admitted Pro Hac Vice
DUANE MORRIS LLP
30 South 17th Street
Philadelphia, PA 19103
Tel: [phone]; Fax: [phone]
Email: [e-mail]
L. Norwood Jameson
Matthew C. Gaudet
Jennifer H. Forté
Admitted Pro Hac Vice
DUANE MORRIS LLP
1180 West Peachtree Street NW, Suite 700

- 20 -

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 21 of 27

Atlanta, GA 30309
Tel: [phone]; Fax: [phone]
Email: [e-mail]
[e-mail]

1
2
3
4
5
6
7
8

IT IS SO ORDERED.

9
10
11

DATED: November 7, 2011.
____________, 2011.
UNITED STATES MAGISTRATE JUDGE

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

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 22 of 27

EXHIBIT A

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 23 of 27

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

CONTENT INTERACTIVE LLC,
Case No. 2:11-cv-00314-ECR-PAL

4
5
6

Plaintiff,
v.

7

COX COMMUNICATIONS, INC., et
al.

8

Defendants.

PROTECTIVE ORDER IN A PATENT
CASE

JURY TRIAL DEMANDED

9
EXHIBIT A

10
11

CONFIDENTIALITY AGREEMENT FOR EXPERT OR CONSULTANT
OF ANY PARTY

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

I, ___________________________________________ [print or type full name],
of _______________________ hereby affirm that:
Information, including documents and things designated as “Confidential,”
“Confidential Outside Counsel Only,” or Highly Restricted Confidential - Source Code as
defined in the Protective Order entered in this Litigation, is being provided to me
pursuant to the terms and restrictions of the Protective Order. I have been given a copy of
and have read the Protective Order.
I am familiar with the terms of the Protective Order and I agree to comply with
and to be bound by its terms. I submit to the jurisdiction of this Court for enforcement of
the Protective Order.
I agree not to use any Confidential, Confidential Outside Counsel Only, or Highly
Restricted Confidential - Source Code information disclosed to me pursuant to the
Protective Order, except for purposes of this Litigation, and not to disclose any of this
information to persons, other than those specifically authorized by the Protective Order,
without the express written consent of the Party who designated the information as
confidential or by order of the Court. I also agree to notify any stenographic, clerical or

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 24 of 27

1

technical personnel who are required to assist me of the terms of this Protective Order

2

and of its binding effect on them and me.

3

Pursuant to paragraph 21 of the attached Protective Order, I have attached (a) my

4

current resume or curriculum vitae, which identifies my current employer, (b) my current

5

and past consulting relationships in the industry, and (c) a listing of cases in which I have

6

testified as an expert at trial or by deposition within the preceding four years.

7

I understand that I am to retain all documents or materials designated as or

8

containing Confidential, Confidential Outside Counsel Only, or Highly Restricted

9

Confidential - Source Code information in a secure manner, and that all such documents

10

and materials are to remain in my personal custody until the completion of my assigned

11

duties in this matter, whereupon all such documents and materials, including all copies

12

thereof, and any writings prepared by me containing any Confidential, Confidential

13

Outside Counsel Only, or Highly Restricted Confidential - Source Code information are

14

to be returned to counsel who provided me with such documents and materials.

15
16
DATED:

17

CITY, STATE WHERE SWORN AND SIGNED:

18

PRINTED NAME:

19

SIGNATURE:

20
21
22
23
24
25
26
27
28
-2-

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 25 of 27

EXHIBIT B

Case 2:11-cv-00314-ECR -CWH Document 47

Filed 11/04/11 Page 26 of 27

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3

CONTENT INTERACTIVE LLC,
Case No. 2:11-cv-00314-ECR-PAL

4

Plaintiff,

5
6

v.

7

COX COMMUNICATIONS, INC., et
al.

8

Defendants.

PROTECTIVE ORDER IN A PATENT
CASE

JURY TRIAL DEMANDED

9
EXHIBIT B

10
11

CONFIDENTIALITY AGREEMENT FOR THIRD-PARTY VENDORS

12

I, ___________________________________________ [print or type full name],

13

of _______________________ hereby affirm that:

14

Information, including documents and things designated as “Confidential” or

15

“Confidential Outside Counsel Only,” as defined in the Protective Order entered in this

16

Litigation, is being provided to me pursuant to the terms and restrictions of the Protective

17

Order.

18

I have been given a copy of and have read the Protective Order.

19

I am familiar with the terms of the Protective Order and I agree to comply with

20

and to be bound by its terms. I submit to the jurisdiction of this Court for enforcement of

21

the Protective Order.

22

I agree not to use any Confidential or Confidential Outside Counsel Only

23

information disclosed to me pursuant to the Protective Order except for purposes of this

24

Litigation and not to disclose any of this information to persons, other than those

25

specifically authorized by the Protective Order, without the express written consent of the

26

Party who designated the information as confidential or by order of the Court.

27
28

Case 2:11-cv-00314-ECR -CWH Document 47

1
DATED:

2

CITY, STATE WHERE SWORN AND SIGNED:

3

PRINTED NAME:

4

SIGNATURE:

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-2-

Filed 11/04/11 Page 27 of 27