Systemify, LLC v. PacketMotion, Inc. et al

Filing 58

Stipulated PROTECTIVE ORDER. Signed by Magistrate Judge Peggy A. Leen on 6/7/12. (Copies have been distributed pursuant to the NEF - ECS)

Case 2:12-cv-00130-GMN -PAL Document 52

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Scott E. Stevens, Esq.
[e-mail]
Gregory P. Love, Esq.
[e-mail]
Darrell G. Dotson, Esq.
[e-mail]
STEVENS LOVE
222 N. Fredonia Street
PO Box 3427
Longview, Texas 75601
Tel. [phone]
Fax [phone]
Mark Borghese, Esq.
Nevada Bar No. 6231
[e-mail]
BORGHESE LEGAL, LTD.
10161 Park Run Drive, Suite 150
Las Vegas, Nevada 89145
Tel. [phone]
Fax [phone]

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Attorneys for Plaintiff Systemify, LLC
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E. Leif Reid (SNB 5750)
Tara C Zimmerman (SBN 12146)
Lewis and Roca, LLP
50 W. Liberty Street
Suite 410
Reno, NV 89501
775-321-3415
775-823-2929 (fax)
[e-mail]
[e-mail]
Katherine Kelly Lutton
650-839-5070
Shelley K Mack
65-839-5070
Leeron G Kalay
650-839-5070
Fish and Richardson PC
500 Arguella St, Ste 500
Redwood City, CA 94063
Attorneys for Defendants PacketMotion, Inc., and
VMware, Inc.

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Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 2 of 34

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SYSTEMIFY, LLC, a Nevada limited liability
company,

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Case No.: 2:12-cv-000130-GMN-PAL

Plaintiff,
STIPULATED PROTECTIVE ORDER

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v.
PACKETMOTION, INC., a California
corporation, and VMWARE, INC., a Delaware
corporation,

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JURY TRIAL DEMANDED

Defendants.

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To expedite the flow of discovery materials, to facilitate the prompt resolution of
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disputes over confidentiality of discovery materials, to adequately protect information the

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parties are entitled to keep confidential, to ensure that only materials the parties are entitled to

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keep confidential are subject to such treatment, and to ensure that the parties are permitted

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reasonably necessary uses of such materials in preparation for and in the conduct of trial,

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pursuant to Fed. R. Civ. P. 26(c), it is hereby ORDERED THAT:

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INFORMATION SUBJECT TO THIS ORDER

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1.

For purposes of this Protective Order, “PROTECTED INFORMATION” shall mean all

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information or material produced for or disclosed to a receiving party that a producing party,

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including any party to this action and any non-party producing information or material

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voluntarily or pursuant to a subpoena or a court order, considers to constitute or to contain trade

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secrets or other confidential technical, product, sales, marketing, customer, financial, or other

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commercial information, whether embodied in physical objects, documents, or the factual
knowledge of persons, and which has been so designated by the producing party. Any

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PROTECTED INFORMATION obtained by any party from any person pursuant to discovery in
this litigation may be used only for purposes of preparation and litigation of this matter.
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Case 2:12-cv-00130-GMN -PAL Document 52

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PROTECTED INFORMATION shall include all copies, recordings, abstracts, excerpts,

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analyses or other writings that contain, reveal or otherwise disclose PROTECTED

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INFORMATION. Except with the prior written consent of the producing party or upon prior

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order of this Court, PROTECTED INFORMATION shall not be disclosed except in accordance

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with the terms, conditions and restrictions of this Order.

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2.

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CONFIDENTIAL designation is reserved for PROTECTED INFORMATION that the

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producing party believes, reasonably and in good faith, to constitute confidential or proprietary

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technical, research, development, product, commercial, financial, budgeting, accounting,

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PROTECTED INFORMATION may be designated as “CONFIDENTIAL.” The

marketing, customer and/or any other type of information or tangible thing which is not publicly

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known and which cannot be ascertained from an inspection of publicly available documents and
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materials. Documents designated CONFIDENTIAL, information contained therein, and any

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summary, description or report containing such CONFIDENTIAL information shall be available

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only to the following individuals: (1) outside litigation counsel of record and

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personnel employed by those counsel; (2) up to five (5) in-house counsel identified in advance

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and in writing by the receiving party (3) technical advisors (per Paragraph 15 and in accordance

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supporting

with Paragraphs 16-17 herein); (4) the Court, persons employed by the Court, and stenographers

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transcribing the testimony or argument at a hearing, trial or deposition in this action or any
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appeal therefrom; (5) Third Party Vendors (per Paragraph 18 herein); and (6) any other

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person(s) agreed upon in advance by the producing party in writing.

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3.

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OUTSIDE COUNSELS’ EYES ONLY.” The CONFIDENTIAL—OUTSIDE COUNSELS’

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EYES ONLY designation is reserved for PROTECTED INFORMATION (a) that is not

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PROTECTED INFORMATION also may be designated “CONFIDENTIAL—

publicly available, (b) that the disclosing party reasonably and in good faith believes are

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Case 2:12-cv-00130-GMN -PAL Document 52

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CONFIDENTIAL pursuant to Paragraph 2, and (c) the confidentiality of which cannot be

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adequately maintained so as to protect the reasonable interests of the producing party in

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maintaining their confidentiality, unless disclosure is limited to the persons to whom

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY material may be disclosed, or the

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disclosure of which may cause a competitive disadvantage to the producing party.

Such

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY materials will likely include, but

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are not limited to, current nonpublic sales and marketing materials, including customer lists;

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invention records, engineering documents and other technical documents pertaining to current

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technology not already possessed by the receiving party; current business and marketing plans;

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royalty information; and other highly sensitive information that is either currently in use or that

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has a reasonably anticipated future use.

Documents or tangible things designated

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CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, information contained therein, and

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any summary, description, or report containing such CONFIDENTIAL – OUTSIDE

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COUNSELS’ EYES ONLY information shall be available only to the following individuals: (1)

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outside litigation counsel of record and supporting personnel employed by those counsel; (2)

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technical advisors (per Paragraph 15 and in accordance with Paragraphs 16-17 herein); (3) the

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Court, persons employed by the Court, and stenographers transcribing the testimony or

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argument at a hearing, trial or deposition in this action or any appeal therefrom; (4) Third Party
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Vendors (per Paragraph 18 herein); and (5) any other person(s) agreed upon in advance by the

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producing party in writing. For purposes of this Order, any inventor of a patent-in-suit is not

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authorized

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COUNSELS’ EYES ONLY or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

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HIGHLY SENSITIVE (pursuant to Paragraph 13).

to

receive

or

review

material

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designated

CONFIDENTIAL—OUTSIDE

Case 2:12-cv-00130-GMN -PAL Document 52

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4.

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interrogatory responses, responses to requests for admission and other documents) or tangible

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thing containing or including any PROTECTED INFORMATION as such by conspicuously

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A producing party may designate any document (including produced documents,

affixing a legend including the words “CONFIDENTIAL,” “CONFIDENTIAL—OUTSIDE

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COUNSELS’ EYES ONLY,” or “CONFIDENTIAL—OUTSIDE COUNSELS’ EYES

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ONLY—HIGHLY SENSITIVE” (pursuant to Paragraph 13) on each page containing such

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information (or on the cover or containing of computer storage media, such as discs or tapes)

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prior to or at the time the producing party furnishes copies or discloses such materials to the

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receiving party.
5.

Any deposition transcript, in whole or in part, may be designated CONFIDENTIAL,

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CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE
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COUNSELS’ EYES ONLY—HIGHLY SENSITIVE, by a statement on the record at the time

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such

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY or CONFIDENTIAL – OUTSIDE

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COUNSELS’ EYES ONLY – HIGHLY SENSITIVE information that is subject to the

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provisions of this Order.

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testimony

is

given

that

the

specific

testimony

contains

CONFIDENTIAL,

Alternatively, a producing party may designate testimony or

information disclosed at a deposition, including exhibits, that contain CONFIDENTIAL,

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY or CONFIDENTIAL – OUTSIDE
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COUNSELS’ EYES ONLY – HIGH SENSITIVE information by notifying all other parties in

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writing of the portions of such testimony to be so designated within thirty (30) days from the

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date of the deposition. Upon such request, the reporter shall mark the original and all copies of

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the transcript, as designated, and each party shall attach a copy of such written statement to the

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face of the transcript and each copy thereof in its possession, custody or control. Any portions

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so designated shall thereafter be treated in accordance with the terms of this Order. Before the

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expiration of said thirty (30) day period after the date of the deposition, until the receipt of any

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notice provided under this Paragraph, all parties shall presumptively treat deposition transcripts

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as if they were designated CONFIDENTIAL-OUTSIDE COUNSELS’ EYES ONLY.

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6.

All PROTECTED INFORMATION not reduced to documentary, tangible or physical

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form or which cannot be conveniently designated as set forth in Paragraphs 4 or 5 shall be

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designated by the producing party by informing the receiving party of the designation in writing

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at the time of such production or disclosure.

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7.

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(a) Any documents (and things such as samples) made available for inspection, as well

as all information obtained during such inspection and documents created based upon any such
inspection, initially shall be considered, as a whole, to constitute CONFIDENTIAL—OUTSIDE

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COUNSELS’ EYES ONLY and shall be subject to this Order. Thereafter, the producing party
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shall have a reasonable time (but in no event more than 30 days) to review and designate any

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such documents and information appropriately prior to furnishing production copies to the

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receiving party.

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(b) All information gathered, created or extracted during inspection of a facility or piece

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of equipment, as well as any documents, recordings (whether audio, video or otherwise) or other

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forms of information created based upon any such inspection, initially shall be considered, as a

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whole, to constitute CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY information
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and shall be subject to this Order. Thereafter, the producing party shall have a reasonable time

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(but in no event more than 30 days) to review and redesignate any such documents, recordings

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or other information or portions thereof as appropriate under this Order, or to remove any such

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designation therefrom.

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8.

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Subject to Paragraph 9 below, the following information is not PROTECTED

INFORMATION:

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Case 2:12-cv-00130-GMN -PAL Document 52

(a)

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any information that at the time of disclosure to a receiving party is in the public

domain;

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Filed 05/22/12 Page 7 of 34

(b)

any information which, after its disclosure to a receiving party, becomes part of

the public domain as a result of publication not involving a violation of this Order or breach of

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an obligation of confidentiality to the producing party or any third party;
(c)

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any information that the receiving party can show was already known to it prior

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to the disclosure, and that the receiving party did not learn of through a violation of this Order or

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breach of an obligation of confidentiality to the producing party or any third party;

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(d)

any information which the receiving party can show by written records was

received by it after the time of its disclosure in this action, and was received from a source who

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obtained the information lawfully and under no obligation of confidentiality to the producing
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party or any third party; and
(e)

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any information that the receiving party can show was independently developed

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by it after the time of disclosure by personnel who did not have access to the producing party’s

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PROTECTED INFORMATION.

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9.

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Notwithstanding Paragraph 8, a party or nonparty producing information that falls within

the scope of Subparagraphs 8(a)-(d) may designate its production with a confidentiality

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designation where such information is provided as part of a compilation that is not in the public
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domain.
NO WAIVER OF PRIVILEGE

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10.

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the attorney-client privilege, work product protection or any other applicable privilege or

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protection, as well as the inadvertent production in discovery of information without an

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Inadvertent or unintentional disclosure of information, documents or things subject to

appropriate designation of confidentiality, shall not constitute a waiver or impairment of any

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Case 2:12-cv-00130-GMN -PAL Document 52

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applicable claim of privilege or protection if, as soon as reasonably possible after the producing

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party becomes aware of any such inadvertent or unintentional disclosure or designation, the

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producing party promptly notifies the receiving party in writing, designates any such documents

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as within the attorney-client privilege or work product immunity or any other applicable

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privilege and requests return of such documents to the producing party or their destruction. If a

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receiving party receives documents that appear on their face or are believed to be privileged or

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otherwise protected, the receiving party shall stop the review of said documents and shall inform

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the producing party as soon as reasonably possible. Upon written request by the producing

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party pursuant to this Paragraph, the receiving party immediately shall return all copies of such

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inadvertently produced information to counsel for the producing party or destroy such

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information, at the producing party’s election, and the receiving party shall not use such
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information for any purpose until further order of the Court. Nothing herein shall prevent the

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receiving party from challenging the propriety of the attorney-client privilege or work product

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immunity or other applicable privilege designation by submitting a written challenge to the

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Court; provided, however, that no showing of inadvertence will be required in order to preserve

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the privilege or immunity. The receiving party may not retain any inadvertently produced

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documents pending the Court’s resolution of a challenge to a designation of privilege, but may

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prepare a record for its own use containing the date, author, addresses, and topic of the
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inadvertently produced material and such other information as is reasonably necessary to identify

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the material and describe its nature to the Court in any motion to compel production. Upon

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resolution of the motion, if in the producing party’s favor, all such notes and records shall be

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immediately destroyed.

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Case 2:12-cv-00130-GMN -PAL Document 52

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DISCOVERY RULES REMAIN UNCHANGED

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11.

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the discovery provisions of the Federal Rules of Civil Procedure. Identification of any

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Unless expressly stated herein otherwise, nothing herein shall alter or change in any way

individual pursuant to this Protective Order does not make that individual available for

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deposition or any other form of discovery outside of the restrictions and procedures of the

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Federal Rules of Civil Procedure, the Local Rules for the United States District Court for the

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District of Nevada, and the deadlines set forth in the Court’s Scheduling Order.

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PROSECUTION BAR
12.

Absent the written consent of the producing party, any person who on behalf of the

Plaintiff

receives

any

document

containing

technical

information

designated

as

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“CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY” or “CONFIDENTIAL—
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OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE (pursuant to Paragraph 13)

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shall not use such information in preparing or prosecuting any patent application, have any

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substantive involvement in such use or in claiming priority from any application filed using

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such information, or otherwise use such information to assist in such preparation, prosecution,

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or other patent prosecution procedure, including reexaminations, reissues, and patent appeals, to

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pursue domestic or foreign patent protection (collectively “applications”), from the time of

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receipt of such information through and including two (2) years following the entry of a final
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non-appealable judgment or order or the complete settlement of all claims against all parties in
this action.
SPECIAL HANDLING OF HIGHLY SENSITIVE PROTECTED INFORMATION

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13.

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confidential

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To the extent it becomes necessary to produce source code or similar highly sensitive
information,

such

PROTECTED

INFORMATION

may

be

designated

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE.

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9

The

Case 2:12-cv-00130-GMN -PAL Document 52

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CONFIDENTIAL—OUTSIDE

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designation is reserved for information that includes source code, object code, Hardware

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Descriptive Language (“HDL” or “VHDL” files) or Register Transfer Level (RTL) files for

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COUNSELS’

Filed 05/22/12 Page 10 of 34

EYES

ONLY—HIGHLY

SENSITIVE

integrated circuits; documentation relating to any such source code, object code, HDL/VHDL

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files or RTL files; and documentation relating to transmission codes, including, but not limited

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to, technical specifications that explain the operation of source code and/or transmission codes,

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functional specifications, communications and messaging protocols, information technology

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(“IT”) specifications and IT platforms (for the purposes of this Order only, such source code,

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object code, VHDL, HDL or RTL files and documentation will be referred to for convenience as

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“Highly Sensitive Protected Information”). Nothing in this Order shall be construed as a

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representation or admission that Highly Sensitive Protected Information is properly discoverable
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in this action, or to obligate any party to produce such information. Information designated

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CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE shall be

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provided the following further protections.

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(a)

Access to the CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

HIGHLY SENSITIVE shall be provided only to outside litigation counsel of record, supporting
personnel employed by those counsel, technical advisors (per Paragraph 15 and in accordance

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with Paragraphs 16-17 herein), and the Court and Third Party Vendors (per Paragraph 18 herein,
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but not including mock jurors), and any other persons agreed upon in advance by the producing

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party in writing, but not to in-house counsel or any inventor of the patent-in-suit, and shall be

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subject to the Prosecution Bar pursuant to Paragraph 12.

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(b)

Highly Sensitive Protected Information may be produced in searchable electronic

form on a stand-alone hard drive.

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Case 2:12-cv-00130-GMN -PAL Document 52

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(c)

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Highly Sensitive Protected Information shall be made available for inspection by

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the receiving party in searchable electronic form on a stand-alone hard drive connected to a

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secured computer without Internet access or network access to other computers (the “Source

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Code Computer”) at a single and appropriately secure facility (“Secure Facility”) at a location

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selected by the producing party, subject to the reasonable availability of such Secure Facility.

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Such Secure Facility may include, but is not limited to, the business offices of the producing

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party or its outside counsel.

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(d)

Highly Sensitive Protected Information Available at Secure Facilities. Highly

Sensitive Protected Information will be available at the Secure Facility on three (3) business
days’ written notice once such information is made available for inspection. If the Secure

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Facility is used on consecutive days, 15 hours’ notice of use shall be sufficient (e.g., notice of
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use should be made by 5:00 pm on one day of intended use beginning at 8:00 A.M. the next

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day). The producing party shall install such tools or programs on the Source Code Computer as

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the receiving party’s technical advisors deem necessary to review and search the code produced

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on the platform provided.

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(e)

The receiving party’s outside counsel and/or technical advisors shall be entitled

to take notes relating to the Highly Sensitive Protected Information, but may not copy such

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information into those notes. Such notes shall be subject to the provisions of Paragraph 13(j)
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below. No copies of all or any portion of the Highly Sensitive Protected Information may leave

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the room in which it is inspected except as otherwise provided herein, and no other written or

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electronic record of the Highly Sensitive Protected Information is permitted except as otherwise

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provided herein.

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(f)

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The producing party shall make available a laser printer with commercially

reasonable printing speeds for on-site printing during inspection of the Highly Sensitive

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Protected Information. The receiving party may print portions of the Highly Sensitive Protected

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Information on colored paper only when reasonably necessary to facilitate the receiving party’s

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preparation of the case, including when reasonably necessary to prepare any filing with the

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Court or to serve any pleadings or other papers on any other party; to prepare internal attorney

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work product materials; or to prepare other necessary case materials such as testifying expert

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reports, consulting expert written analyses and related drafts and correspondence. The receiving

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party shall print only such portions as are reasonably necessary for the purposes for which any

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part of the Highly Sensitive Protected Information is printed at the time. Upon printing any

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such portions of Highly Sensitive Protected Information, the printed pages shall be collected by

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the producing party. The producing party shall Bates number, copy on colored paper, and label

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CONFIDENTIAL – OUTSIDE COUNSELS’ EYES ONLY – HIGHLY SENSITIVE any pages
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printed by the receiving party (the “Stamped Copies”). If the producing party objects that the

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printed portions are not reasonably necessary to any case preparation activity, the producing

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party shall make such objection known to the receiving party within three (3) business days of

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the printing of the pages. In order to meet and confer regarding such objection ,the producing

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party shall furnish a copy of the Stamped Copies to the receiving party along with such

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producing party’s objection.

If after meeting and conferring the producing party and the

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receiving party cannot resolve the objection, the producing party shall be entitled to seek the
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Court’s resolution of whether the printed Highly Sensitive Protected Information in question is

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not reasonably necessary to any case preparation activity. Any such court resolution must be

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sought no later than seven (7) business days after such objection is made. In the absence of any

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objection, the producing party shall provide two (2) copy sets of the Stamped Copies on colored

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paper to the receiving party at the conclusion of the five (5) business day objection period, and

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shall retain one copy set. In the event an objection is made, the producing party shall provide

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Case 2:12-cv-00130-GMN -PAL Document 52

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two (2) copy sets of such pages on colored paper to the receiving party within five (5) business

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days of resolution of the objection by the Court in the receiving party’s favor, and shall retain

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one copy set.

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The printed pages shall constitute part of the Highly Sensitive Protected

Information produced by the producing party in this action.

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(g)

A list of names of persons who have viewed or who will view the Highly

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Sensitive Protected Information will be prepared by the producing party in the event of any

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breach of any of the security provisions governing Highly Sensitive Protected Information set

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forth in this Order. The producing party shall maintain a daily log of the names of persons who

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enter the locked room to view the Highly Sensitive Protected Information and when they enter

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and depart. The producing party shall be entitled to have a person observe all entrances and

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exits from the secure viewing room.
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(h)

Unless otherwise agreed in advance by the parties in writing, following each

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inspection, the receiving party’s outside counsel and/or technical advisors shall remove all

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notes, documents, laptops, and other materials from the room that may contain work product

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and/or attorney-client privileged information. The producing party shall not be responsible for

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any items left in the room following each inspection session.

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(i)

Other than as provided in Paragraph 13(f), the receiving party shall not copy,

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remove, or otherwise transfer any Highly Sensitive Protected Information from the Source Code
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Computer, including without limitation, copying, removing, photographing or transferring any

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Highly Sensitive Protected Information onto any other computers or peripheral equipment. The

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receiving party shall not transmit any Highly Sensitive Protected Information in any way from

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the Secure Facility.

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(j)

The receiving party and technical advisor shall maintain and store any paper

copies of the Highly Sensitive Protected Information or notes related to such information (as

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referenced in Paragraph 13(e)) at its respective offices in a manner that prevents duplication of

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or unauthorized access to the Highly Sensitive Protected Information or Highly Sensitive

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Protected Information Documents, including, without limitation, storing such information or

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documents in a locked room or cabinet at all times when not in use.

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(k)

The receiving party’s outside counsel of record shall maintain a log of all copies

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of the Highly Sensitive Protected Information (received from a producing party) that are

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provided by the receiving party to any qualified person under this Order other than a technical

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advisor who reviews the source code at the Secure Facility. The log shall include the names of

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the recipients and reviewers of copies and locations where the copies are stored. Any paper

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copies of Highly Sensitive Protected Information shall be stored or viewed only at (i) the offices

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of outside counsel for the receiving party; (ii) the offices of outside technical advisors who have
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been approved to access such information under this Order; (iii) the site where any deposition is

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taken; (iv) the Court; or (v) any intermediate location necessary to transport the information to a

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hearing, trial or deposition. Any such paper copies shall be maintained at all times in a locked

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and secure location. The producing party shall be entitled to a copy of the log in the event of

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any breach of any of the security provisions governing Highly Sensitive Protected Information

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set forth in this Order, and at the conclusion of the litigation.

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(l)

The persons described in Paragraph 13(a) who may have access to information

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designated

CONFIDENTIAL—OUTSIDE

COUNSELS’

EYES

ONLY—HIGHLY

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SENSITIVE may include excerpts of Highly Sensitive Protected Information in a pleading,

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exhibit, expert report, discovery document, deposition transcript, other Court document, or any

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drafts of these documents (“Highly Sensitive Protected Information Documents”); each excerpt

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of Highly Sensitive Protected Information quoted in a Highly Sensitive Protected Information

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Document shall be limited to only that necessary to support the argument made in referencing

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Case 2:12-cv-00130-GMN -PAL Document 52

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the Highly Sensitive Protected Information Document. For example, excerpts of approximately

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25 to 40 lines in length of software code would be allowed. To the extent portions of Highly

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Sensitive Protected Information are quoted in a Highly Sensitive Protected Information

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Document, either (1) the entire document will be stamped and treated as CONFIDENTIAL—

5
6

OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE or (2) those pages containing

7

quoted Highly Sensitive Protected Information will be separately bound, stamped, and treated as

8

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE.

9

Highly Sensitive Protected Information Documents shall be filed under seal.

10
11

(m)

All

The receiving party shall not create electronic copies, electronic images, or any

other images of Highly Sensitive Protected Information from the paper copy for use on a

12
computer (e.g., may not photograph or scan the Highly Sensitive Protected Information to a
13
14

PDF) except as provided herein. The receiving party may create an electronic copy or image of

15

selected portions of the Highly Sensitive Protected Information only when reasonably necessary

16

to accomplish any filing with the Court or to serve any pleadings or other papers on any other

17

party (including expert reports), or when reasonably necessary in its internal correspondence in

18

the case, provided that (i) not more than 50 pages of Highly Sensitive Protected Information are

19

included in the correspondence; (ii) that the electronic copy is protected with strong encryption

20
(e.g., 256 bit encryption using public key/private key access); (iii) the computer from which the
21
22

copy of the Highly Sensitive Protected Information is accessed or viewed is a secured individual

23

computer accessed only by an individual qualified to view Highly Sensitive Protected

24

Information under this Protective Order; (iv) no unencrypted copy of that Highly Sensitive

25

Protected Information is created or viewed on a publicly accessible computer or storage

26

medium, or on a computer that is network accessible beyond the time the Highly Sensitive

27

Protected Information is viewed for purposes of this sentence; (v) the encrypted copy of the

28
15

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 16 of 34

1

Highly Sensitive Confidential Information is not maintained beyond the time reasonably

2

necessary for purposes of this sentence; and (vi) all other applicable provisions of this Protective

3

Order are still observed as to the electronic copy or image or selected portions of the Highly

4

Sensitive Protected Information. Images or copies of Highly Sensitive Protected Information

5
6

shall not be included in correspondence between the parties (references to production numbers

7

shall be used instead) and shall be omitted from pleadings and other papers except to the extent

8

permitted herein.

9

(n)

10

Documents containing Highly Sensitive Protected Information shall be password

protected so as to limit access only to persons described in Paragraph 13(a).

11

(o)

All paper copies of Highly Sensitive Protected Information shall be securely

12
destroyed if they are no longer necessary in the litigation (e.g., extra copies at the conclusion of
13
14

a deposition). Copies of Highly Sensitive Protected Information that are marked as deposition

15

transcript shall not be provided to the Court Reporter or attached to deposition transcripts;

16

rather, the deposition record will identify the exhibit by its production numbers.

17

PERSONS AUTHORIZED TO RECEIVE CONFIDENTIAL INFORMATION

18

COUNSEL

19

14.

Counsel for a receiving party shall have access to PROTECTED INFORMATION

20
pursuant to the preceding paragraphs. Except where expressly noted otherwise, the term
21
22

“counsel” shall mean outside counsel for the parties working on this litigation, supporting

23

personnel employed by those counsel, such as paralegals, legal translators, legal secretaries,

24

legal clerks, and shorthand reporters, but excludes any inventor of a patent-in-suit.

25
26
27

TECHNICAL ADVISORS
15.

Information designated CONFIDENTIAL, CONFIDENTIAL—COUNSELS’ EYES

ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE

28
16

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 17 of 34

1

may be furnished and disclosed to technical advisors pursuant to Paragraphs 2, 3, and 13. The

2

term “technical advisor” shall mean an independent, outside expert witness or consultant

3

specifically retained in connection with this action, along with their associates and staff, with

4

whom counsel may deem it necessary to consult concerning technical, financial, or other aspects

5
6

of this case for the preparation or trial thereof, but excludes any inventor of a patent-in-suit.

7

16.

8

litigation to disclose a producing party’s information designated CONFIDENTIAL,

9

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE

10

COUNSELS’ EYES ONLY—HIGHLY SENSITIVE to a technical advisor, the receiving party

11

Should a receiving party find it necessary for maintaining, defending or evaluating this

shall first give written notice to the producing party. Such written notice shall include: (a) the

12
technical advisor’s current résumé, curriculum vitae or other information adequate to identify
13
14

the individual’s name, address, qualifications and relevant work experience, including an

15

identification of (i) the technical advisor’s current employer(s) and consultancies; (2) each

16

person or entity from whom the technical advisor has received compensation for work in his or

17

her area(s) of expertise or to whom the technical advisor has provided professional services at

18

any time during the preceding five (5) years; (3) the name, action number, filing date, and

19

location of any litigation in connection with which the technical advisor has provided any

20
professional services during the preceding five (5) years, and identification of the party in each
21
22

litigation for whom the technical advisor provided those services; (4) an identification of any

23

past or present employment or consulting relationship with any party to this action or any

24

competitor of any party to this action; and (5) a copy of the signed Attachment A.

25

17.

26

written notice pursuant to Paragraph 16, PROTECTED INFORMATION may then be disclosed

27

If the producing party does not object in writing, within ten (10) court days of receiving

to the technical advisor. If timely objection is made, the parties shall attempt in good faith to

28
17

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 18 of 34

1

resolve the objection. If the issue cannot be resolved, the producing party may, within twenty

2

(20) court days from receipt of written notice pursuant to Paragraph 16, file a motion to preclude

3

the technical advisor from viewing that party’s PROTECTED INFORMATION. Except by

4

order of this Court, no information designated CONFIDENTIAL, CONFIDENTIAL—

5
6

COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

7

HIGHLY SENSITIVE shall be disclosed to such technical advisor until after the expiration of

8

the twenty (20) court day period commencing with the receipt by the producing party of notice

9

pursuant to Paragraph 16 or, if an objection or motion is made, until the matter has been ruled

10

upon by this Court or otherwise resolved. No disclosure of information designated

11

CONFIDENTIAL, CONFIDENTIAL—COUNSELS’ EYES ONLY, or CONFIDENTIAL—

12
OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE shall be made to any technical
13
14

advisor unless the person to whom the disclosure is to be made first has signed the form

15

attached hereto as Attachment A stating that he or she has read and understands this Protective

16

Order and agrees to be bound by its terms. Identification of a technical advisor under this

17

Protective Order is not a waiver of any applicable consultant or work product privilege, and

18

does not by itself subject the technical advisor to any discovery.

19

ACCESS TO CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’ EYES

20
ONLY, INFORMATION BY COURT AND THIRD PARTY VENDORS
21
22

18.

In accordance with Paragraphs 2 and 3, PROTECTED INFORMATION designated as

23

“CONFIDENTIAL” or “CONFIDENTIAL—OUTSIDE COUNSEL’S EYES ONLY” may be

24

disclosed to the following:

25
26

(a)

Court reporters, stenographers and videographers retained to record and/or

transcribe testimony taken in this action, provided they have agreed to maintain the

27
28
18

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 19 of 34

1

confidentiality of PROTECTED INFORMATION pursuant to this Protective Order by

2

executing the undertaking attached as Exhibit A;

3

(b)
(c)

4

The Court, jury, and court personnel;
Graphics, translation, design, and/or trial consulting personnel (including mock

5
6

jurors) retained by the receiving party to assist in this action, provided they have agreed to

7

maintain the confidentiality of PROTECTED INFORMATION pursuant to this Protective

8

Order by executing the undertaking attached as Exhibit A;

9
10
11

(d)

Any mediator who is assigned to hear this matter, and his or her staff, provided

they have agreed to maintain the confidentiality of PROTECTED INFORMATION pursuant to
this Protective Order by executing the undertaking attached as Exhibit A;

12
(e)

photocopy vendors, independent legal translators, and document imaging,

13
14

coding, scanning and database services and consultants retained by counsel to set up, maintain

15

and/or operate computer systems and/or litigation databases or to convert data for inclusion in

16

such databases, provided such individuals have agreed to maintain the confidentiality of

17

PROTECTED INFORMATION pursuant to this Protective Order by executing the undertaking

18

attached as Exhibit A; and

19

(e)

Any other person with the prior written consent of the producing party.

20
19.

All counsel of record shall be provided a copy of the undertaking of attached Exhibit A,

21
22

executed by any qualified person, at the time of such execution.
CHALLENGES TO CONFIDENTIALITY DESIGNATIONS

23
24

20.

25

designated

26

CONFIDENTIAL—OUTSIDE

27

The parties shall use reasonable care when designating documents or information
as

CONFIDENTIAL,

CONFIDENTIAL—COUNSELS’

COUNSELS’

EYES

EYES

ONLY—HIGHLY

ONLY,

SENSITIVE.

Designation of PROTECTED INFORMATION under this Order shall constitute a

28
19

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 20 of 34

1

representation that there is a valid basis for such designation. Nothing in this Protective Order

2

shall prevent a receiving party from contending that any or all documents or information

3

designated as CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY,

4

or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE has

5
6

been improperly designated. A receiving party may at any time request that the producing party

7

cancel or modify the CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’ EYES

8

ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE

9

designation with respect to any document or information contained therein.

10
11

21.

A party shall not be obligated to challenge the propriety of a CONFIDENTIAL,

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE

12
COUNSELS’ EYES ONLY—HIGHLY SENSITIVE designation at the time made, and a failure
13
14

to do so shall not preclude a subsequent challenge thereto. Such a challenge shall be written,

15

shall be served on outside counsel for the producing party, and shall particularly identify the

16

documents or information that the receiving party contends should be differently designated.

17

The parties shall use their best efforts to resolve promptly and informally such disputes. If an

18

agreement cannot be reached, the receiving party may request that the Court cancel or modify a

19

CONFIDENTIAL,

CONFIDENTIAL—OUTSIDE

COUNSELS’

EYES

ONLY,

or

20
CONFIDENTIAL—OUTSIDE

COUNSELS’

EYES

ONLY—HIGHLY

SENSITIVE

21
22

designation, in which case the receiving party shall bear the burden of establishing that the

23

challenged PROTECTED INFORMATION is improperly designated. Until a determination by

24

the Court, the information at issue shall be treated as designated and subject to the terms of this

25

Order.

26

INFORMATION shall not be construed as an admission by any non-designating party that the

27

Any failure to object to any material being designated as PROTECTED

material constitutes or contains a trade secret or other confidential information.

28
20

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 21 of 34

LIMITATIONS ON THE USE OF PROTECTED INFORMATION

1
2

22.

3

COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

4

Information

designated

as

CONFIDENTIAL,

CONFIDENTIAL—OUTSIDE

HIGHLY SENSITIVE shall be held in confidence, under the overall supervision of the

5
6

receiving party’s outside counsel, shall be used only for purposes of this litigation, shall not be

7

used for any business purpose, and shall not be disclosed to any person who is not entitled to

8

receive such information as provided herein. The attorneys of record for the parties shall

9

exercise best efforts to ensure that all produced information designated as CONFIDENTIAL,

10

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE

11

COUNSELS’ EYES ONLY—HIGHLY SENSITIVE under this Protective Order is carefully

12
maintained so as to preclude access by persons who are not entitled to receive such information.
13
14

23.

Except as may be otherwise ordered by the Court, any person may be examined as a

15

witness at depositions concerning all information designated as CONFIDENTIAL,

16

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE

17

COUNSELS’ EYES ONLY—HIGHLY SENSITIVE of which such person has prior

18

knowledge. Without in any way limiting the generality of the foregoing:

19

(a)

A present director, officer and/or employee of a producing party may be

20
examined and may testify concerning all information designated as CONFIDENTIAL,
21
22
23
24

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE
COUNSELS’ EYES ONLY—HIGHLY SENSITIVE which has been produced by that party.
(b)

A former director, officer and/or employee of a producing party may be

25

interviewed, examined

26

CONFIDENTIAL,

27

and may testify concerning all information designated

CONFIDENTIAL—OUTSIDE

COUNSELS’

EYES

ONLY,

as
or

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY SENSITIVE of which

28
21

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 22 of 34

1

he or she has prior knowledge, including any documents designated as CONFIDENTIAL,

2

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE

3

COUNSELS’ EYES ONLY—HIGHLY SENSITIVE that were authored or received by the

4

witness.

5
6

(c)

Non-parties may be examined or testify concerning any document containing

7

information designated as CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’

8

EYES ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY

9

SENSITIVE of a producing party which appears on its face or from other documents or

10
11

testimony to have been received from or communicated to the non-party
(d)

Any party or deponent shall have the right to exclude from a deposition any

12
person other than the witness, the witness’s attorney(s), and any person(s) authorized to receive
13
14

information designated as CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’

15

EYES ONLY or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY

16

SENSITIVE under this Protective Order during the portion of the examination concerning such

17

information. If the witness is represented by an attorney who is not authorized under this

18

Protective Order to receive such information, then prior to the examination, the producing party

19

shall request that the attorney provide a signed statement, in the form of Attachment A hereto,

20
that he or she will comply with the terms of this Order and maintain the confidentiality of
21
22

information designated as CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’

23

EYES ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—HIGHLY

24

SENSITIVE disclosed during the course of the examination. In the event that such attorney

25

declines to sign such a signed statement prior to the examination, the parties, by their outside

26

counsel, shall jointly seek a Protective Order from the Court prohibiting the attorney from

27

disclosing information designated as CONFIDENTIAL, CONFIDENTIAL—OUTSIDE

28
22

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 23 of 34

1

COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

2

HIGHLY SENSITIVE.

3
4

(e)

During the course of preparing for a deposition or testimony, unless otherwise

entitled to access under this Protective Order, a fact deponent/witness may be shown

5
6

PROTECTED MATERIAL from another party’s documents strictly limited to those documents

7

which on their face or through appended documents or cover reveal that they were authored or

8

received by the deponent/witness in the normal course of business and outside the context of

9

this litigation. This shall not preclude a producing party from showing documents that it has

10

produced to its own witnesses and deponents, regardless of whether the producing party has

11

designated the document(s) as containing PROTECTED MATERIAL, and regardless of

12
whether such person was an author or recipient of the document.
13
(f)

14

At a later date the Court will address trial examinations and testimony occurring

15
16

OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES

17

ONLY—HIGHLY SENSITIVE.

18
Modified
by court.
Not
approved.

in open court as it relates to materials designated as CONFIDENTIAL, CONFIDENTIAL—

24.

19

Any PROTECTED INFORMATION that is to be filed in this proceeding shall be filed

under seal pursuant to the local rules of this Court. Such material shall be filed in sealed

20
envelopes or other appropriate sealed containers on which shall be endorsed the title of this
21
22

action, an indication of the nature of the contents of such sealed envelope or other container, a

23

designation in the form set forth in Paragraphs 2, 3 or 13, and a statement substantially in the

24

following form:

25

CONFIDENTIAL

26

FILED UNDER SEAL PURSUANT TO COURT ORDER

27

Civil Action No. 2:12-cv-000130-GMN-PAL

28
23

Case 2:12-cv-00130-GMN -PAL Document 52
Modified by
court. Not
approved.

Filed 05/22/12 Page 24 of 34

1

The Clerk of the Court is directed to place and maintain under seal in accordance with this

2

Order any such pleading or other document filed with or delivered to the Court pursuant to this

3

Protective Order.

4

25.

Nothing in this Protective Order shall prohibit the transmission or communication of

5
6
7

information designated CONFIDENTIAL or CONFIDENTIAL—OUTSIDE COUNSELS’
EYES ONLY between or among authorized recipients

8

(a)

by hand-delivery;

9

(b)

in sealed envelopes or containers via mail or an established freight,

10

delivery or messenger service; or

11

(c)

by telephone, facsimile, e-mail or other electronic transmission system;

12
where, under the circumstances, there is no reasonable likelihood that the
13
transmission will be intercepted or misused by any person who is not an

14

authorized recipient.

15
16

26.

17

CONFIDENTIAL—OUTSIDE

18

information shall not be copied or otherwise reproduced by a receiving party, except for

19

CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY and
COUNSELS’

EYES

ONLY—HIGHLY

SENSITIVE

transmission to authorized recipients (pursuant to Paragraphs 13 and 24), without the written

20
permission of the producing party, or, in the alternative, by order of the Court. Except as
21
22

provided herein otherwise, nothing herein shall, however, restrict an authorized recipient from

23

making

24

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY information for use in connection

25

with this litigation, provided reasonable precautions are taken, and such working copies,

26

abstracts,

27

working

digests

copies,

and

abstracts,

analyses

digests

shall

and

likewise

analyses

be

of

deemed

CONFIDENTIAL

CONFIDENTIAL

or

OR

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY information under the terms of this

28
24

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 25 of 34

1

Protective Order. Further, except as provided herein otherwise, nothing herein shall restrict an

2

authorized

3

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY information into machine readable

4

recipient

from

converting

or

translating

received

CONFIDENTIAL

or

form for incorporation into a data retrieval system used in connection with this action, provided

5
6

that access to CONFIDENTIAL or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY,

7

information, in whatever form stored or reproduced, shall be limited only to authorized

8

recipients pursuant to the terms of this Protective Order.

9
10
11

NONPARTY USE OF THIS PROTECTIVE ORDER
27.

A nonparty producing information or material voluntarily or pursuant to a subpoena or a

court

order

may

designate

such

material

or

information

as

CONFIDENTIAL,

12
CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE
13
14

COUNSELS’ EYES ONLY—HIGHLY SENSITIVE information pursuant to the terms of this

15

Protective Order.

16

28.

17

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE

18

COUNSELS’ EYES ONLY—HIGHLY SENSITIVE information does not entitle that nonparty

19

A nonparty’s use of this protective order to protect its CONFIDENTIAL,

access to CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or

20
CONFIDENTIAL—OUTSIDE

COUNSELS’

EYES

ONLY—HIGHLY

SENSITIVE

21
22

information produced by any party to this case.
LIMITATION ON DISCOVERY FROM TESTIFYING EXPERTS

23
24

29.

Testifying experts shall not be subject to discovery on any draft of his or her declaration

25

or report in this case. Such draft reports, notes, or outlines for draft reports are exempt from

26

discovery.

27
28
25

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 26 of 34

1

30.

2

materials generated by a testifying expert regarding his or her work on this matter, will be

3

subject to discovery unless such conversations, communications or materials are relied upon by

4

No conversations or communications between counsel and any testifying expert, or

such experts in formulating opinions that are presented in reports or trial or deposition

5
6

testimony in this case.

7

31.

Materials, communications and other information exempt from discovery under the

8

foregoing paragraphs shall be treated as attorney-work product for the purposes of this litigation

9

and protective order, and need not be listed in privilege logs.

10
11

MISCELLANEOUS PROVISIONS
32.

Any of the notice requirements herein may be waived, in whole or in part, but only by a

12
writing signed by the counsel-in-charge for the party against whom such waiver will be
13
14

effective.

15

33.

16

action, or the complete settlement of all claims asserted against all parties in this action, each

17

party shall, at its option, either return to the producing party or destroy all physical objects and

18

documents which embody CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’

19

Within sixty (60) days after the entry of a final non-appealable judgment or order in this

EYES ONLY information, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

20
HIGHLY SENSITIVE information which were received from the producing party, and shall
21
22

destroy in whatever form stored or reproduced, all other physical objects and documents,

23

including but not limited to, correspondence, memoranda, notes and other work product

24

materials,

25

CONFIDENTIAL—OUTSIDE

26

CONFIDENTIAL—OUTSIDE

27

electronic

or

otherwise,

which

COUNSELS’
COUNSELS’

contain
EYES
EYES

or

refer
ONLY

to

CONFIDENTIAL,
information,

ONLY—HIGHLY

or

SENSITIVE

information; provided, that all CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’

28
26

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 27 of 34

1

EYES ONLY information, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

2

HIGHLY SENSITIVE information, not embodied in physical objects and documents, shall

3

remain subject to this Protective Order. If any receiving party destroys any such PROTECTED

4

INFORMATION pursuant to this Protective Order, that party shall send a letter to the producing

5
6

party confirming the same. Notwithstanding the foregoing, outside counsel shall be entitled to

7

maintain copies in its files of all pleadings, documents filed with the court, motions and trial

8

briefs (including all supporting and opposing papers and exhibits thereto), any expert opinions,

9

written discovery requests and responses (and exhibits thereto), deposition transcripts (and

10

exhibits thereto), trial transcripts, and exhibits offered or introduced into evidence at any hearing

11

or trial. The terms of this order shall continue to apply to all such retained materials.

12
34.

This Protective Order is entered without prejudice to the right of any party to apply to

13
14

the Court at any time for additional protection or relief, or to relax or rescind its restrictions,

15

when convenience or necessity so requires.

16

35.

17

interpretation

18

CONFIDENTIAL, CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY information, or

19

The United States District Court for the District of Nevada, is responsible for the
and

enforcement

CONFIDENTIAL—OUTSIDE

of this

Protective Order.

COUNSELS’

EYES

All

disputes

ONLY—HIGHLY

concerning

SENSITIVE

20
information produced under the protection of this Protective Order shall be resolved by the
21
22

United States District Court for the District of Nevada. At the conclusion of this action, the

23

Court shall retain jurisdiction to enforce the terms of this Order.

24

36.

25

litigation or until cancelled or otherwise modified in writing as agreed to by all of the Parties or

26

by an order of this Court.

This Protective Order shall remain in full force and effect after the termination of this

27
28
27

Case 2:12-cv-00130-GMN -PAL Document 52

Filed 05/22/12 Page 28 of 34

1

37.

2

waive the producing party’s right to secure protection under this Order for such material. Upon

3

discovery of an inadvertent or unintentional failure to designate, a producing party may notify

4

An inadvertent failure to make confidentiality designation does not, standing alone,

the receiving party in writing that the material is to be designated as CONFIDENTIAL,

5
6

CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE

7

COUNSELS’ EYES ONLY—HIGHLY SENSITIVE.

8

receiving party shall make all reasonable efforts to ensure that the material is treated in

9

accordance with the terms of this Order. The producing party shall provide substitute copies of

10

documents bearing the confidentiality designation. Any receiving party shall also make all

11

Upon receipt of such notice, the

reasonable efforts to retrieve any documents from anyone who had received the documents prior

12
to the notification by the producing party of the inadvertent failure to designate and who is no
13
14

longer permitted to access the documents under the new designation.

15

38.

16

PROTECTED INFORMATION to any person not authorized under this Order, the receiving

17

party shall immediately (i) notify in writing the producing party of the unauthorized disclosures,

18

(ii) use its best efforts to retrieve all copies of the PROTECTED INFORMATION, and (iii)

19

If a receiving party learns that, by inadvertence or otherwise, it has disclosed

inform the person or persons to whom unauthorized disclosures were made of all the terms of

20
this Order.
21
22

39.

If a receiving party is served with a subpoena, a Court order, a demand in another legal

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action to which it is a party, or any other legal process by a person not a party to this litigation

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that would compel disclosure of any PROTECTED INFORMATION, the receiving party shall

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so notify the producing party in writing as soon as reasonably possible and in any event, before

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any compliance under such subpoena or Court order is requested or required. Such notification

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shall include a copy of the subpoena or order. The receiving party shall also immediately

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Case 2:12-cv-00130-GMN -PAL Document 52

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inform in writing the party who caused the subpoena or order to issue that some or all of the

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material covered by the subpoena or order is the subject of this Order. In addition, the receiving

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party shall deliver a copy of this Order promptly to the party in the other action that caused the

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subpoena or order to issue. Should the person or entity seeking access to the PROTECTED

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INFORMATION take action against the party covered by this Order to enforce such a

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subpoena, demand or other legal process, it shall respond by setting forth the existence of this

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order and objecting to production of the PROTECTED INFORMATION. The purpose of

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imposing these duties is to alert the interested parties to the existence of this Order and to afford

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the producing party in this case an opportunity to protect its confidentiality interests in the court

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from which the subpoena or order issued. Nothing in these provisions should be construed as

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authorizing or encouraging a receiving party in this action to disobey a lawful directive from
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another court.

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40.

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action, any appeal therefrom, or any proceeding to settle or resolve this action. PROTECTED

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INFORMATION cannot be used for any other purpose including, but not limited to, any

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business, proprietary, commercial, legal/other litigation, arbitration or claim, governmental

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All PROTECTED INFORMATION shall be used only in preparation for and trial of this

purpose. Nothing in this Protective Order shall preclude a producing party from using or

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disseminating its own PROTECTED INFORMATION.
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41.

Documents that are withheld from production on the grounds of the attorney-client

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privilege and/or work product immunity generated for this litigation after the filing of the

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original complaint in this litigation need not be included in a party’s privilege log provided for

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this litigation.

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Case 2:12-cv-00130-GMN -PAL Document 52

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42.

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money damages, interim or final injunctive or other equitable relief, sanctions, contempt of

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court citation, or such other or additional relief as deemed appropriate by the Court.

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43.

Any material violation of the terms of this Protective Order shall be punishable by

Until such time as this Protective Order has been entered by the Court, the parties agree

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that upon execution by the parties, it will be treated as though it had been “So Ordered.”
May 22, 2012

Respectfully submitted,

/s/ Darrell G. Dotson
STEVENS LOVE
Scott E. Stevens
Gregory P. Love
Darrell G. Dotson
222 N. Fredonia Street
PO Box 3427
Longview, Texas 75601

/s/ Katherine Kelly Lutton
E. Leif Reid (SNB 5750)
Tara C Zimmerman (SBN 12146)
Lewis and Roca, LLP
50 W. Liberty Street
Suite 410
Reno, NV 89501
775-321-3415
775-823-2929 (fax)
[e-mail]
[e-mail]

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BORGHESE LEGAL, LTD.
Mark Borghese, Esq.
10161 Park Run Drive, Suite 150
Las Vegas, Nevada 89145

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Attorneys for Plaintiff Systemify, LLC

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OF COUNSEL:
Katherine Kelly Lutton
650-839-5070
Shelley K Mack
65-839-5070
Leeron G Kalay
650-839-5070
Fish and Richardson PC
500 Arguella St, Ste 500
Redwood City, CA 94063
Attorneys for Defendants PacketMotion, Inc., and
VMware, Inc.

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Case 2:12-cv-00130-GMN -PAL Document 52

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Filed 05/22/12 Page 31 of 34

IT IS SO ORDERED:

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________________________________
UNITED Leen
Peggy A. STATES DISTRICT JUDGE
United States Magistrate Judge

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June 7, 2012
Dated:__________________________

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Case 2:12-cv-00130-GMN -PAL Document 52

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ATTACHMENT A

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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DISPLEIGH, LLC
Plaintiff,

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Case No. 3:11-cv-02977-N

v.

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SAMSUNG ELECTRONICS
AMERICA, INC., et al.,

JURY TRIAL DEMANDED

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Defendants.

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CONFIDENTIALITY AGREEMENT

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I, __________________________________ , state:

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1.

I reside at ___________________________________________________.

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2.

My present employer is ________________________________________________.

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3.

My present occupation or job description is _________________________________.

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4.

I have read the Agreed Protective Order to which this is attached, and have been

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engaged as ________________________________________________________ on behalf of

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_______________________________________ in the preparation and conduct of the litigation

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styled Systemify, LLC v. PacketMotion, Inc., Case No. 2:12-cv-000130-GMN-PAL, pending in

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the United States District Court for the District of Nevada.

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5.

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Protective Order or by further order issued by the Court and consent to the personal jurisdiction

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of said Court for the purpose of any proceeding to enforce the terms of the Protective Order,

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including any proceedings related to contempt of Court. I understand that I am to retain all

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copies of any documents designated as CONFIDENTIAL, CONFIDENTIAL—OUTSIDE

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COUNSELS’ EYES ONLY, or CONFIDENTIAL—OUTSIDE COUNSELS’ EYES ONLY—

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HIGHLY SENSITIVE in a secure manner, and that all copies are to remain in my personal
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I am fully familiar with and agree to comply with and be bound by the terms of said

Case 2:12-cv-00130-GMN -PAL Document 52

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custody until I have completed my assigned duties, whereupon the copies and any writings

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prepared

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CONFIDENTIAL—COUNSELS’

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COUNSELS’ EYES ONLY—HIGHLY SENSITIVE are to be returned to counsel who

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provided me with such material within ten (10) business days of receiving notification that my

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duties are completed.

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6.

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Order, and will not copy or use except solely for the purpose of this action under the terms of

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my engagement, any information obtained pursuant to said Protective Order, except as provided

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in said Protective Order. I also agree to notify any stenographic, clerical, or other personnel who

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are required to assist me of the terms of said Protective Order.

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7.

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foregoing is true and correct.

by

me

related

to

any

information

EYES

ONLY,

designated
or

as

CONFIDENTIAL,

CONFIDENTIAL—OUTSIDE

I will not divulge to persons other than those specifically authorized by said Protective

I state under penalty of perjury under the laws of the United States of America that the

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Executed on ____________________, 2012.

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_____________________________

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Title:

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Case 2:12-cv-00130-GMN -PAL Document 52

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CERTIFICATE OF SERVICE

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The undersigned certifies that the foregoing document was filed electronically in
compliance with Local Rule CV-5(a). As such, this document was served on all counsel who
are deemed to have consented to electronic service. Local Rule CV-5(a)(3)(A). Pursuant to
Fed. R. Civ. P. 5(d) and Local Rule CV-5(d) and (e), all other counsel of record not deemed to
have consented to electronic service were served with a true and correct copy of the foregoing
by email and/or fax, on this the 22nd day of May 2012.

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/s/ Darrell G. Dotson
Darrell G. Dotson

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