Raw Story Media, Inc. et al v. OpenAI Inc. et al

Filing 103

STIPULATED PROTECTIVE ORDER WITH COMPLETE CONFIDENTIALITY ADDENDUM...regarding procedures to be followed that shall govern the handling of confidential material...IT IS SO ORDERED. (Signed by Judge Colleen McMahon on 9/25/24) (yv)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

RAW STORY MEDlA, INC. ,
AL TERN ET MEDIA, IN C.,

Civil Action No. I :24-cv-01514-CM
AMENDED ti
tfl:;@N...
STIPULATED PROTECTIVE ORDER
WITH COMPLETE
CONFIDENTIALITY ADDENDUM

Plaintiffs ,
V.

OPENAI, INC., OPENAI GP, LLC,
OPENAI , LLC, OPENAf OPCO LLC,
OPENAI GLO BAL LLC , OA I
CORPORATION , LLC, OPEN AI
HOLDINGS , LLC,
Defendants.

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I.

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PURPOSES AND LIMITATIONS
Di sclosure and discovery activity in this action are likely to involve production of

confidential, pro prietary, or private information for which special protection from public
disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the parties hereby stipu late to and petition the court to enter the following
Stipulated Protective Order. The part ies acknowledge that this Order does not confer blanket
protections on all disclosures or respo nses to discovery and that the protection it affords from
public disclosure and use extends only to the limited information or items that are entitled to
confidential treatment unde r the appl icable legal principles. The parties further acknowledge, as
set forth in Section 13 .3 , below, that this Stipulated Protective Order does not entitle them to file
confidential information under seal; Section 6 of the S.D.N .Y. Electronic Case Filing Rules &
Instructions ("'ECF Rules") and Section IV of Judge McMahon 's Individual Practices and
Procedures set forth the procedures that must be followed when a party seeks permi ss ion from
the court to file material under seal.
2.

DEFrNITIONS
2.1

Challenging Party: a Party or Non-Party that challenges the designation of

information or items under this Order.
2.2

"CONFIDENTlAL" In fo rmation or Items: information (regardless of how it is

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
of Civil Procedure 26(c) .
2.3

Counsel (without quali fier): Outside Counsel of Record (as well as their

employees) and House Counsel.
2.4

Designated House Counsel : House Counsel who seek access to ··HJGHL Y

CONFIDENTIAL - ATTORNEYS' EYES ONLY" information in this matter.

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2.5

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Designating Party: a Party or Non-Party that designates information or items that

it produces in disclosures or in responses to discovery as ·'C ONFIDENTIAL" or ·'HIGHLY
CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE
CODE".
2.6

Disclosure or Discovery Material: all items or information, regardless of the

medium or manner in which it is generated, stored, or maintained (including, among other things,
testimony, transcripts, and tangible things), that are produced or generated in disclosures or
responses to discovery in th is matter.
2.7

Expert: a person with specialized knowledge or experience in a matter pertinent to

the litigation who (I) has been retained by a Party or its counsel to serve as an expert witness or
as a consultant in this action, (2) is not a past or current employee of a Party or of a Party's
competitor, and (3) at the time of retentio n, is not anticipated to become an employee of a Party
or of a Party ' s competitor.
2.8

"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or

Items: extremely sensitive "Confidential Information or Items," disclosure of which to another
Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
less restrictive means.
2.9

HIGHLY CONFIDENTIAL - SOURCE CODE" Information or Items: extremely

sensitive "Confidential Info rmation or Items" representing computer code and associated
comments and revision histories, form ulas, engineering specifications, or schematics that define
or otherwise describe in detail the algorithms or structure of software or hardware designs,
disclosure of wh ich to another Party or Non-Party would create a substantial risk of serious harm
that could not be avoided by less restrictive means.

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2.10

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House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel.
2.11

Non-Party: any natural person, partnership, corporation. association , or other legal

entity not named as a Party to this actio n.
2.12

Outside Counsel of Record: attorneys who are not employees of a party to this

action but are retained to represent or advise a party to this action and have appeared in this
action on behalf of that party or are affi liated with a law firm which has appeared on behalf of
that party.
2.13

Party: any party to this action, including all of its officers, directors, employees,

consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.14

Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action.
2. 15

Professional Vendors: persons or entities that provide litigation su pport services

(e.g., photocopyi ng, videotaping, translating, preparing exhibits or demonstrations, and
organizing, storing, or retrieving data in any form or medium) and their employees and
subcontractors.
2.16

Protected Material : any Disclosure or Discovery Material that is designated as

·'CONFIDENTIAL," or as .. HIGHLY CONF ID ENT IAL - ATTORNEYS' EYES ONLY" or as
·'HIGHLY CONF IDENT IA L - SOURCE CODE."
2.17

Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party.
3.

SCOP E
The protections conferred by this Stipulation and Order cover not only Protected Material

(as defined above), but also (I) any information copied or extracted from Protected Material; (2)

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all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that would reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information : (a) any information that is in the public domain at the time of disclosure to a
Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
a result of publication not invol ving a violation of this Order, including becoming part of the
public record thro ugh trial or otherwise; and (b) any information known to the Receiving Party
prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
obtained the information lawfully and under no obligation of confidentiality to the Designating
Party. Any use of Protected Material at trial shall be governed by a separate agreement or order.
4.

DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by

this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
order otherwise directs . Final disposition shall be deemed to be the later of ( 1) dismissal of all
claims and defenses in this action, with or with out prejudice; and (2) final judgment herein after
the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
action, includ ing the time li mits for filing any motions or applications for extension of time
pursuant to applicable law .

5.

DESIGNATING PROTECTED MA TERI AL
5.1

Exercise of Restraint and Care in Designating Material for Protection. Each Party

or Non-Party that designates information or items for protection under this Order must take care
to limit any such designation to specific material that qualifies under the appropriate standards.
To the extent it is practical to do so, the Designating Party must designate for protection on ly
those parts of material, docu ments, items, or oral or written communications that qualify - so

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that other portions of the material, documents, items, or communications for which protection is
not warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are
shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
unnecessaril y encumber or retard the case development process or to impose unnecessary
expenses and burdens on other parties) expose the Designating Party to sanctions.
If it comes to a Designating Party's attention that information or items that it designated
for protection do not qualify for protection at all or do not qualify for the level of protection
initially asserted, that Designating Party must promptly notify all other parties that it is
withdrawing the mistaken designation.
5.2

Manner and Timing of Designations. Except as otherwise provided in this Order

(see, e.g. , second paragraph of section 5 .2(a) below), or as otherwise stipulated or ordered.
Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
designated befo re the material is disclosed or produced.
Desi gnation in conformity with this Order requires:
(a)

fo r informati on in documentary form (e.g., paper or electronic documents, but

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
Party affix the legend "CONFIDENTIAL"' or "HIGHLY CONFIDENTIAL -ATTORNEYS '
EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" to each page that contains
protected material. If on ly a portion or portions of the material on a page qualifies for protection,
the Producing Party also must clearly identify the protected portion(s) (e.g., by making
appropriate mark ings in the margins) and must specify, for each portion, the level of protection
being asserted .

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A Party or Non-Party that makes original documents or materials available for in spection
need not designate them for protection until after the inspecting Party has indicated which
material it wou ld like copied and produced. During the inspection and before the designation. a
Party may indicate in writing that the material made available for inspection shall be
preliminarily deemed " HIGH LY CONF ID ENT IAL-ATTORN EYS' EYES ONLY." After the
inspecting Party has identified the documents it wants copied and produced , the Producing Party
must determi ne which documents, or portions thereof, qualify for protection under this Order.
Then, before producing the specified documents, the Producing Party must affix the appropriate
legend ("CONFIDENTIAL" or '·HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY"
or "HIGHLY CONFIDENTIAL - SOURCE CODE) to each page that contains Protected
Material. If only a portion or portions of the material on a page qualifies for protection, the
Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
markings in the margins) and must spec ify. for each portion, the level of protection being
asserted.
(b)

for testimony given in deposition or in other pretrial or trial proceedings, that the

Designating Party identify on the record, before the close of the deposition , hearing, or other
proceeding, all protected testimony and specify the level of protection being asserted. When it is
impractical to identify separately each portion of testimony that is entitled to protecti on and it
appears that substantial porti ons of the testimony may qualify for protection, the Designating
Party may invoke on the record (before the deposition, hearing, or other proceeding is
concluded) a right to have up to 21 days to identify the specific portions of the testimony as to
which protection is sought and to specify the level of protection being asserted . Only those
portions of the testimony that are appropriately designated for protection within the 21 days shall

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be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating
Party may specify, at the deposition or up to 21 days afterwards if that period is properly
invoked, that the entire transcript shall be treated as "CONFIDENTIAL" or "H IGHLY
CONFIDENTIAL- ATTORNEYS' EYES ONLY."
Parti es shall give the other parties notice if they reasonably expect a deposition, hearing
or other proceeding to include Protected Material so that the other parties can ensure that onl y
authorized individuals who have signed the ··Acknowledgment and Agreement to Be Bound"
(Exhibit A) are present at those proceed ings . The use of a document as an exhibit at a deposition
shall not in any way affect its designation as "CONFIDENTIAL" or " HIGHLY
CONFIDENTIAL- ATTORNEYS ' EYES ONLY."
Transcripts containing Protected Material shall have an obvious legend on the title page
that the transcri pt contains Protected Material, and the title page shall be fol lowed by a list of all
pages (including line numbers as approp riate) that have been designated as Protected Material
and the level of protection being asserted by the Designating Party. The Designating Party shall
inform the court reporter of these requireme nts . Any transcript that is prepared before the
expiration of a 2 1-day period for designation shall be treated during that period as if it had been
designated " HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" in its entirety unless
otherwise agreed. After the expiration of that period , the transcript shall be treated only as
actually desi gnated.
(c)

for informati on produced in some form other than documentary and for any other

tangible item s, that the Prod ucing Party affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend "CONF ID ENT IAL"
or "HIGHLY CON FIDENTIAL-ATTO RNEYS ' EYES ONLY" or " HIGHLY

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CONFIDENTIAL - SOURCE CODE." If only a portion or portions of the information or item
warrant protection, the Producing Pa11y, to the extent practicable, shall identify the protected
portion(s) and specify the level of protection being asserted .
5.3

Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

designate qualified information or items does not, standing alone, waive the Designating Party's
right to secure protection under this Order for such material. Upon timely correction of a
designation, the Receiving Party must make reasonable efforts to assure that the material is
treated in accordance with the provisions of this Order.
6.

CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1

Timing of Challenges. Any Party or Non-Party may challenge a designation of

confidentiality at any time. Unless a prompt challenge to a Designating Party 's confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant di sruption or delay of the litigation, a Party does not waive its right to
challenge a confi dentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2

Meet and Confer. The Challenging Party shall initiate the dispute resolution

process by prov iding written notice of each designation it is challenging and describing the basis
for each challenge. To avoid ambiguity as to whether a challenge has been made, the written

notice must recite that the challenge to confidentiality is being made in accordance with this
specific paragraph of the Protective Order. The Designating Party shall identify in writing within
7 days the supporting bases for its designation, and the Pa11ies shall attempt to reso lve each
challenge in good faith by conferring directly (in voice to voice dialogue; other forms of
communication are not sufficient) within 7 days of the date of the provision of the Designating
Party ' s supporting bases. A Challenging Party may proceed to the next stage of the challenge

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process only if it has engaged in this meet and confer process first or establishes that the
Designatin g Party is unwilling to partic ipate in the meet and confer process in a timely manner.
6.3

Judicial Intervention. If the Parties cannot resolve a challenge without court

intervention, the Designati ng Party shall file and serve a motion to retain confidentiality under
Local Civil Ru le 7.1 and Judge McMahon's Individual Practices and Procedures Section V.B.
(and in compliance with Section 6 of the ECF Rules and Section IV of Judge McMahon 's
Individual Practices and Procedures, if applicable) within 21 days of the initial notice of
challenge or within 14 days of the parties agree ing that the meet and confer process will not
resolve thei r dispute, whichever is earlier. Each such mot ion must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer
requirements im posed in the preceding paragraph. Failure by the Designating Party to make such
a motion including the requ ired declaratio n within 21 days (or 14 days, if applicable) sha ll
automatically waive the confidentiality designation for each challenged designation. In addition,
the Challenging Party may file a motion challenging a confidentiality designation at any time if
there is good cause for doing so, including a challenge to the designation of a deposition
transcript or any portions thereof. Any motion brought pursuant to this provision must be
accompanied by a competent declaration affirming that the movant has complied with the meet
and confer requirements im posed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating
Party. Frivolous challenges and those made for an improper purpose (e.g. , to harass or impose
unnecessary expenses and burdens on other parties) may expose the Challenging Party to
sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
file a motion to retain confidentiality as described above, all parties shall continue to afford the

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material in question the level of protection to which it is entitled under the Producing Party's
designation unti l the court rules on the chal lenge.
7.

ACC ESS TO AND USE OF PROTECTED MATERIAL
7.1

Basic Princ iples. A Receiving Party may use Protected Material that is disclosed

or produced by another Party or by a Non-Party in connection with this case only for
prosecuting, defending, or attempting to settle this litigation and shall not disclose such Protected
Material to anyone else except as expressly permitted hereunder . Such Protected Material may be
di sclosed only to the categories of persons and under the conditions described in this Order.
When the litigation has been terminated, a Receiving Party must comply with the provisi ons of
section 14 below (FINAL DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and
in a secure man ner that ensures that access is limited to the persons authorized under this Order.
7.2

Disclosure of "CONF ID ENTIAL" Information or Items. Unless otherwise

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated "CONFID ENTIAL" only to :
(a)

the Receiving Party ' s Outside Counsel of Record in this action , as well as

employees of sa id Outside Counsel of Record to whom it is reasonabl y necessary to di sc lose the
information for this litigation and who have signed the .. Acknowledgment and Agreement to Be
Bound" that is attached hereto as Exhibit A;
(b)

the officers, directors, an d employees (including House Counsel) of the Receiv ing

Party to whom disclosure is reasona bly necessary for this litigation and who have signed the
"Acknowledgment and Agreement to Be Bound" (Exhibit A) and whose Acknowledgements
shall be maintained by counse l for the Receiving Party and produced to the Producing Party
upon reasonab le demand ;

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(c)

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Experts (as defined in this Order) of the Receiving Party to whom disclosure is

reasonably necessary for th is litigation and who have signed the ·'Acknowledgment and
Agreement to Be Bound" (Exhibit A);
(d)

the court and its personnel ;

(e)

court reporters and their staff, professional jury or trial consultants, and

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
have signed the "A cknowl edgment and Agreement to Be Bound" (Exhibit A) ;
(t)

during their depositions, witnesses in the action to whom disclosure is reasonably

necessary and who have signed the .. Acknowledgment and Agreement to Be Bound" (Exhibit
A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
transcribed deposition testi mony or exhibits to depositions that reveal Protected Material must be
separately bound by the court reporter and may not be disclosed to anyone except as permitted
under this Stipu lated Protective Order.
(g)

the author or recipient of a document containing the information or a custodian or

other person who otherwise possessed or knew the information.
7.3

Disclosure of"HIGHL Y CONFIDENTIAL -ATTORNEYS ' EYES ONLY" and

"HIGHLY CONFIDENTIAL- SOU RC E CODE" Information or Items . Unless otherwise
ordered by the court or perm itted in writing by the Designating Party, a Receiving Party may
disclose any information or item designated ·'HIGHLY CONFIDENTIAL - ATTORNEYS '
EYES ONLY" or " HIGHLY CONF IDENTIAL - SOURCE CODE" only to :
(a)

the Receiving Party' s Outside Counsel of Record in this action, as well as

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation and who have either signed the ·'Acknowledgment and Agreement

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to Be Bound'' that is attached hereto as Exhibit A or have executed an agreement to keep such
litigation in format ion confidential as a condition of their employment;
(b)

Desi gnated House Counse l of the Receiving Party (I) to whom disclosure is

reasonably necessary for this litigation and who has signed the "Acknowledgment and
Agreement to Be Bound" (Exhibit A);
(c)

Experts of the Receiving Party(\) to whom disclosure is reasonably necessary for

this litigation, (2) who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit
A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(I), below, have been
followed;
(d)

the court and its personne l;

(e)

court reporters and their staff, professional jury or trial consultants, and

Professional Ve ndors to whom disclosure is reasonabl y necessary for this litigation and who
have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and
(t)

the author or recipient of a document containing the information or a custodian or

other person who otherwise possessed or knew the information.
7.4

Procedures for Approving or Objecting to Disclosure of ·'HlGHL Y

CONFIDENTIAL-ATTORNEYS' EYES ONLY" or ··HIGHLY CONFIDENTIAL- SOURCE
CODE" Information or Items to Designated House Counsel or Experts.
(a)

Unless otherwise ordered by the court or agreed to in writing by the Designating

Party, a Party that seeks to disclose to Designated House Counsel any information or item that
has been designated "HIGHLY CONFIDENT IAL- ATTORNEYS' EYES ONLY" pursuant to
paragraph 7 .3(b) first must make a written request to the Designating Party that ( 1) sets forth the
full name of the Designated House Counse l and the city and state of his or her residence, and (2)

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describes the Designated House Counsel' s current and reasonably foreseeable future primary job
duties and responsibilities in sufficient detail to determine if Hou se Counsel is involved, or may
become involved, in any Competitive or Editoria l Decision-Making.'
(b)

Unless otherwise ordered by the court or agreed to in writing by the Designating

Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or
item that has been designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or
"HIGHLY CONFIDENTIAL - SOURCE CODE" pursuant to paragraph 7.3(c) first must make a
written request to the Designating Party that ( 1) sets forth the full name of the Expert and the city
and state of his or her primary residence, (2) attaches a copy of the Expert 's current resume, (3)
identifies the Expert's current employer(s), (4) identifies each person or entity from whom the
Expert has rece ived compensation or funding for work in his or her areas of expertise or to
whom the expert has provided professional services, including in connection w ith a litigation, at
any time duri ng the preceding five years, and (5) identifies (by name and number of the case,
filing date, and location of court) any litigation in connection with which the Expert has offered
expert testim ony, including through a declaration, report, or testimony at a deposi tion or trial,
during the preceding five years.
(c)

A Party that makes a request and provides the information specified in the

preceding respective paragraphs may disclose the subject Protected Material to the identified
Designated House Counsel or Expert unless, within 7 days of delivering the request, the Party

1

"Competitive or Editorial Decision-M aking'' means the action or process of making a business or journalistic
decision or resol ving a non-legal question relating to a competitor, potential competitor, customer, journalist, opinion
writer, editor, video producer, audi o producer, or distribution partner regarding contracts, marketing, pricing, product.
service development or design, product. or service offering, research and development, mergers and acquisitions, or
licensing, acquisition , funding, enforcement of intellectual property, publishing, writing. editing, broadcasting. or
public speaking. It does not include legal advice provided in connection with litigation, potential litigation. or
regulatory matters. nor does it incl ude work performed as part of a trial team or to keep management advised on the
progress or status of litigation, potenti al litigation, or regulatory matters.

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receives a written objection from the Designating Party. Any such objection must set forth in
detail the grounds on which it is based.
(d)

A party that receives a timely written objection must meet and confer with the

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
agreement within 2 business days of the written objection. If no agreement is reached and the
objection represents the first discovery dispute in the case, the Designating Party must file a
letter pursuant to Section V.B. of Judge McMahon 's Individual Practices and Procedures (and in
compliance with Section 6 of the ECF Rules and Section IV of Judge McMahon's Individual
Practices and Procedures if appl icab le) seeking referral to a Magistrate Judge within 5 business
days of the parties ' meet and confer conference. Upon the initial referral to a Magistrate Judge,
the Designating Party must file a letter or motion (per the Magistrate Judge 's rules) opposing
disclosure within 5 business days thereof. If the matter has already been referred to a Magistrate
Judge, the Designating Party must file a letter or motion (per the Magistrate Judge 's rules)
opposing disclosure within 5 business days of the meet and confer. The Designating Party shall
bear the burden of proving that the risk of harm that the disclosure to the expert would entail
(under the safeguards proposed) outweighs the recipient' s need to disclose the Protected
Discovery Material to its expert. If, after a timely objection and meet and confer conference, the
Designating Party does not file a letter or motion with the Court pursuant to the procedures of
this paragraph, the party intend ing to disclose the Protected Discovery Material to properly
identified expe11s may do so.
8.

SOURCE CODE
(a)

To the extent production of source code becomes necessary in this case, a

Producing Party may designate source code as " HIGHLY CONFIDENTIAL - SOURCE CODE"
if it comprises or includes confidential, proprietary or trade secret source code.

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(b)

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Protected Material designated as "HIGHLY CONFIDENTIAL - SOURCE

CODE" shall be subject to al l of the protections afforded to ·' HIGHLY CONFIDE TIAL ATTORNEYS ' EYES ON LY" information and may be disclosed only to the individuals to
whom "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information may be
disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House
Counsel.2
(c)

Any source code produced in discovery shall be made available for inspection , in

a format allowi ng it to be reasonab ly reviewed and searched, during normal business hours or at
other mutuall y agreeable ti mes, at an office of the Producing Party's counsel or another mutually
agreed upon location. The source code shal I be made available for inspection on a secured
computer in a secured room without Internet access or network access to other computers, and
the Receiving Party shall not copy, remove, or otherwise transfer any portion of the source code
onto any reco rdable media or recordable device . The Producing Party may visually monitor the
activities of the Receiving Party's representatives during any source code review, but only to
ensure that there is no unauthorized recording, copying, or transmission of the source code.
(d)

The Receiving Party may request paper copies of limited portions of source code

that are reasonably necessary for the preparation of cou11 filings, pleadings, expert reports. or
other papers, or for deposition or trial , but shall not request paper copies for the purposes of

2

It may be appropriate under certain circumstances to allow Des ignated House Counsel access to derivative materials
including " HIGH LY CONFIDENTIAL - SOURCE CO DE'' information, such as exhibits to motions or expert reports.
The Parties will work together in faith to ensure the Designated House Counsel has a reasonable opportunity to review
draft papers in advance of their service or filing. Nothing in this Order shall preclude Outside Counsel of Record from
providing the minimum amount of summary information regarding " HIGHLY CONFIDENTIAL - SOURCE CODE' '
or "HIGHLY CONFIDENTIAL-ATTORNEYS' EYES ONL y·, information to satisfy Outside Counsel of Record's
obligations to provide legal advice and to keep their client reasonably informed on the status and strategy of the case
or otherwise carry out the represen tation in compliance with applicable rules of professional responsibility so long as
any recipient of an y such summary information has signed the ·'Acknowledgment and Agreement to Be Bound .. that
is attached hereto as Exhibit A. Outside Counsel of Record shall not disclose the content of any document. material.
or information except as permitted by the terms of this Order.

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reviewing the sou rce code other than electronica lly as set fort h in paragraph (c) in the first
instance. The Producing Party shall provide all such source code in paper form including bates
numbers and the label " HI GHLY CONFIDENTIAL - SOURCE CODE." The Producing Party
may challenge the amount of source code requested in hard copy form pursuant to the dispute
resolution procedure and timeframes set fort h in Paragraph 6 whereby the Producing Party is the
"Challenging Party" and the Receiving Party is the "Designating Party" for purposes of dispute
resolution.
(e)

The Receiving Party shall maintain a record of any individual who has inspected

any portion of the source code in electronic or paper form. The Receiving Party shall maintain all
paper copies of any printed portions of the so urce code in a secured , locked area. The Receiving
Party shall not create any el ectronic or other images of th e paper copies and shall not convert an y
of the information contained in the paper copies into any electronic format. The Recei ving Party
shall only make additional paper copies if such additional copies are (I) necessary to prepare
court filin gs, pleadings, or other papers (incl uding a testifying expert ' s expert report), (2)
necessary for deposition, or (3) otherwise necessary for the preparation of its case. Any paper
copies used during a deposition shall be retrieved by the Produc ing Party at the end of each day
and must not be given to or left with a court reporter or any other unauthorized individual.

9.

PROTECTED MATERI AL SUB POENAED OR ORDERED PRODUCED !N OTH ER
LITIGATION
!fa Party is served with a subpoena or a court order issued in other litigati on that compels

disclosure of any information or items designated in this action as ··CONFID ENT IAL'' or
·'HIGHLY CONFIDENTIAL -ATTORN EYS' EYES ONLY" or ·'H!GHL Y
CONFIDENTIAL - SOURC E CODE" that Party must:

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(a)

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promptly notify in writing the Designating Party. Such notification shall include a

copy of the subpoena or court order;
(b)

promptly notify in writing the party who caused the subpoena or order to issue in

the other litigation that some or all of the material covered by the subpoena or order is subject to
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order;
and
(c)

cooperate with respect to all reasonable procedures sought to be pursued by the

Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the
subpoena or court order shall not produce any information designated in this action as
"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- ATTORNEYS' EYES ONLY" or
"HIGHLY CONFIDENTIAL - SOU RCE CODE" before a determination by the court from
which the subpoena or order issued, unless the Party has obtained the Designating Party's
permission. The Designating Party shall bear the burden and expense of seeking protection in
that court of its confidential material - and nothing in these provisions should be construed as
authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from
another court.
I 0.

A NON-PARTY ' S PROTECTED MATERIAL SOUGHT TO BE PROD UCE D IN THIS
LITIGATION
(a)

The terms of this Order are applicable to information produced by a Non-Party in

this action and designated as "CONF ID ENTIAL" or "HIGHLY CONFIDENTIAL ATTORNEY S' EYES ONLY" or " HIGHLY CONFIDENTIAL - SOURCE CODE." Such
information produced by Non-Parties in connection with this litigation is protected by the

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remedies and relief provided by this Order. Nothing in these provisions should be construed as
prohibiting a No n-Party from seeking additional protections.
(b)

In the event that a Party is required, by a valid discovery request, to produce a

Non- Party 's confidential information in its possession, and the Party is subject to an agreement
with the Non-Party not to produce the Non-Party's confidential information, then the Party shall:
I.

promptly notify in writing the Requesting Party and the Non-Party that

some or all of the information requested is subject to a confidentiality agreement with a No nParty;
2.

promptly provide the Non-Party with a copy of the Stipulated Protective

Order in this litigation, the relevant discovery request(s) , and a reasonably specific description of
the information requested; and
3.
(c)

make the information requested available for inspection by the Non-Party.

If the Non-Party fails to object or seek a protective order from this court within 14

days of recei ving the notice and accompanying information, the Receiving Party may produce
the Non-Party ' s confidential information responsive to the discovery request. If the Non-Party
timely seeks a protective order, the Receiving Party shall not produce any information in its
possess ion or control that is subject to the confidentiality agreement with the Non-Party before a
determination by the court. Absent a court order to the contrary, the Non-Party shall bear the
burden and expense of seeking protection in this court of its Protected Material.
11.

UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Rece iving Party learns that, by inadvertence or otherwise, it has disclosed Protected

Material to any person or in any circumstance not authorized under this Stipulated Protective
Order, the Receiv ing Party must immediate ly (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the

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Protected Material, (c) inform the person or persons to whom unauthorized disclosures were
made of all the terms of th is Order, and (d) request such person or persons to execute the
"Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A.
12.

INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertentl y

produced material is subject to a claim of privilege or other protection, the obligations of the
Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This
provision is not intended to modify whateve r procedure may be established in an e-discovery
order that provides for production without prior privilege review. Pursuant to Federal Rule of
Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a
communication or information covered by the attorney-client privilege or work product
protection, the parties may incorporate their agreement in the stipulated protective order
submitted to the court.
I 3.

MISC ELLANEOU S
I 3.1

Right to Further Relief. Nothing in this Order abridges the right of any person to

seek its modificat ion by the court in the future. The Parties specifically acknowledge that the
technology at issue in this matter presents novel issues, and the Parties recognize that
modifications to this Order may be necessary based on their experience in proceeding with
discovery under this Order.
I 3.2

Right to Assert Other Objections. By stipulating to the entry of this Protective

Order no Party waives any right it otherwise would have to object to disclosing or producing any
information or item on any ground not addressed in this Stipulated Protective Order. Similarly,

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no Party waives any right to object on any ground to use in evidence of any of the material
covered by this Protective Order.
13.3

Filing Protected Material. Without written permission from the Designating Party

or a court order secured after appropriate notice to all interested persons, a Party may not file in
the public record in this action any Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Section 6 of the ECF Rules and Section IV of Judge
McMahon ' s Individual Practices and Procedures. Protected Material may only be filed under
seal pursuant to a court order authorizing the sealing of the specific Protected Material at issue.
A sealing order will issue only upon a request establishing that the Protected Material at issue is
privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
Receiving Party's request to file Protected Material under seal is denied by the court, then the
Receiving Party may file the Protected Material in the public record pursuant unless otherwise
instructed by the court.
13.4

Confidential ity Addendu m. The parties agree to and hereby incorporate the

following addendum required pursuant to Section VI of Judge McMahon ' s Individual
Procedures and Practices:
IS
DEEMED
THE
FOLLOWING
ADDENDUM
INCORPORATED INTO THE PARTIES ' STIPULATION AND
CONffDENTIALITY ORDER
The parties understand that the Court's "so ordering" of this
stipulation does not make the Court a party to the stipulation or
imply that the Court agrees that documents designated as
"Confidential" by the parties are in fact confidential.
It has been this Court's consistent experience that
confidentiality stipu lations are abused by parties and that much
material that is not truly confidential is designated as such. The
Court does not intend to be a party to such practices. The Court
operates under a presum ption that the entire record should be

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publicly available.
The Court does not ordinarily file decisions under seal or
redact material from them. If the Court issues a decision in this case
that refers to ''confidential" material under this stipulation, the
decision will not be published for ten days . The parties must, within
that ten-day period. identify to the Court any portion of the decision
that one or mo re of them believe should be redacted, provide the
Court with the purportedly confidential material , and explain why
that material is truly confidential. The Court will then determine
whether the material is in fact genuinely deserving of confidential
treatment. The Court will only redact portions of a publicly available
decision if it concludes that the material discussed is in fact
deserving of such treatment. The Court ' s decision in this regard is
final.
If thi s addendum is acceptable to the parties, the Court will
sign their proposed confidentiality stipulation, subject to the
addendum. If this addendum is not acceptable, the Court will not
sign the stipulation, and should allegedly confidential material be
produced, the parties will be referred to the magistrate judge for a
document by document review and decision on whether that
document should be subject to confidential treatment.
13 .5

FINAL DISPOSITI ON

Within 60 days after the fina l disposition of this action, as defined in paragraph 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such
material. As used in this subdivi sion, aall Protected Material" includes all copies, abstracts,
compilations, summaries, and any other format reproducing or capturing any of the Protected
Material. Whether the Protected Material is returned or destroyed, the Receiving Party must
submit a written certification to the Producing Party (and, if not the same person or entity, to the
Designating Party) by the 60-day deadline that ( 1) identifies (by category, where appropriate) all
the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has
not retained any copies, abstracts, compilations, summaries or any other format reproducing or
capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to

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retain an archival copy of all pleadings, motion papers, trial , deposition , and hearing transcripts,
legal memoran da, correspondence, deposition and trial exhibits, expert reports, attorney work
product, and consultant and expert work product, even if such materials contain Protected
Material. Any such archival copies that contain or constitute Protected Material remain subject to
this Protective Order as set forth in Secti on 4 (DURATION).
IT IS SO STIPULATED, TH RO UG H COUNSEL OF RECORD.
PURSUANT TO STIPULATION, IT IS SO ORDER

Dated:

~~Jo,J;I
Hon . Colleen McMahon
United States District Judge

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SO STIPULATED AND AG REED.
Dated: September 24, 2024

MORRISON & FOERSTER LL P

Isl Matthew To pic
Jonathan Loevy (pro hac vice)
Michael Kan ovitz (pro hac vice)
Lauren Carbaj al (pro hac vice)
Stephen Stich Match (No. 5567854)
Matthew Topic (pro hac vice)
Tom Kayes (pro hac vice)

LOEVY & LOEYY
311 North Aberdeen, 3rd Floor
Chicago, IL 60607
312-243-5900 (p)
312-243-5902 (f)
jon@loevy .com
[e-mail] m
carbajal @loevy.com
[e-mail]
[e-mail] m
[e-mail]

Isl Joseph C. Gratz
Joseph C. Gratz (pro hac vice )
[e-mail]
Andrew L. Perito (pro hac vice )
[e-mail]
Vera Ranieri (pro hac vice)
VRanieri @mofo .com
425 Market Street
San Franci sco, CA 94105-2482
Telephone: [phone]
Facsimile: 415.268.7522

Allyson R. Bennett (pro hac vice)
[e-mail]
Rose S. Lee (pro hac vice )
[e-mail]
707 Wilshire Boulevard. Suite 6000
Los Angeles, CA 90017-3543
Telephone: [phone]
Facsimile: 213.892.5454

Counsel for Plaintiffs

Eric Nikolaides
EN iko [e-mail]
250 W. 55th Street
New York, NY 10019
Telephone : 2 I 2.336.4061
Attorneys.for Defendants
OPENAI, INC., OPENAI GP, LLC, OPENAI,
LLC, OPENA/ OPCO LLC, OPENA/
GLOBAL LLC, OAI CORPORATION, LLC,
and OPENAI HOLDINGS, LLC

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Case 1: 24-cv-01514-CM

LATHAM & WATKINS

Document 101

LLP

Isl Elana Nightingale Dawson
Andrew Gass (pro hac vice)
andrew.gass@lw .com
Joseph R. Wetzel (pro hac vice)
[e-mail]
505 Montgomery Street, Suite 2000
San Francisco, CA 941 11
Telephone: [phone]
Facsimile: (4 15) 395-8095

Sarang Damle (pro hac vice)
sy .dam [e-mail]
Elana Nightingale Dawson (pro hac vice)
[e-mail] m
555 Eleventh Street NW
Suite I 00
Washington , DC 20004
Telephone: [phone]
Facsimile: (2 02) 637-2201
Allison Levine Stillman
alli.stillman@lw .com
Luke Budiardjo
[e-mail]
Yijun Zhong
[e-mail]
1271 Avenue of the Americas
New York, NY I 0020
Telephone: [phone]
Facsimile: (21 2) 751-4864

Filed 09/24/24

Page 25 of 27

KEKER, VAN NEST & PETE RS

LLP

Isl Katie Lynn Joyce
Robert A. Van Nest (pro hac vice )
[e-mail]
R. James Slaughter (pro hac vice)
[e-mail]
Paven Malhotra
[e-mail]
Michelle S. Ybarra (pro hac vice )
[e-mail]
Nicholas S. Goldberg (pro hue vice)
[e-mail]
Thomas E. Gorman (pro hac vice)
[e-mail]
Katie Lynn Joyce (pro hac vice)
[e-mail]
63 3 Battery Street
San Francisco, California 94111-1809
Telephone: [phone]
Facsimile: [phone]
Attorneys.for Defendants
OPENAI, INC., OPENAI GP, LLC, OPENAI,
LLC, OPENAI OPCO LLC, OPENAI
GLOBAL LLC, OAI CORPORATION, LLC,
and OPENAI HOLDINGS, LLC

Attorneys fo r Defendants
OPENAI, INC., OPENAI GP, LLC,
OPENAI, LLC, OPENAI OPCO LLC,
OPENAI GLOBAL LLC, OAI
CORPORATION, LLC, and OPENAI
HOLDINGS, LLC

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EXH IBIT A
ACKNOWLEDGMENTANDAGREEMENTTOBEBOUND
I, _ _ _ _ _ _ _ _ _ [pri nt or type full name] , of _ _ _ _ _ _ _ [print or type
full address] , dec lare under penalty of perjury that I have read in its entirety and understand the
Stipulated Protective Order that was issued by the United States District Court for the Southern
District of New York on [date] in the case of ______ [insert formal name of the case
and the number and initials assigned to it by the court] . I agree to comply with and to be

bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that
failure to so comply could expose me to sanctions and punishment in the nature of contempt. I
solemnly promise that I will not disclose in any manner any information or item that is subject to
this Stipulated Protective Order to any person or entity except in strict compliance with the
provisions of th is Order.
I further agree to submit to the jurisdiction of the United States Di strict Court for the
Southern Di strict of New York for the purpose of enforcing the terms of this Stipulated
Protective Order, even if such enforcement proceedings occ ur after termination of this action.

Date: - - - - - - - - City and State where sworn and signed:

Printed name:

--------------

----------[printed name]

Signature: _ _ _ _ _ _ _ _ _ __
[signature]

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ATTESTATION

Pursuant to S.D.N.Y. Electronic Case Filing Rule 8.5 , 1 hereby attest that all other
signatories listed, and on whose behalf the filing is submitted, concur in the content and have
authorized this filing.

Dated: September 24, 2024

MORRISON & FOERSTER LLP

By: Isl Joseph C Gratz

27