Valencell, Inc. v. Fitbit, Inc.

Filing 36

STIPULATED PROTECTIVE ORDER. Signed by U.S. Magistrate Judge Robert B. Jones, Jr on 6/13/2016. (Briggeman, N.)

IN THE UNITED STATES DISTRICT C()URT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

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VALENCELL, INC.,
Plaintiff,

v.
FITBIT, INC.,
Defendant.

C.A. No. 5:16-cv-00002-D
JURY TRIAL DEMANDED

STIPULATED PROTECTIVE ORDER
WHEREAS, Plaintiff Valencell, Inc. and Defendant Fitbit, Inc., hereafter referred to as
"the Parties," believe that certain information that is or will be encompassed by discovery demands
by the Parties involves the production or disclosure of trade secrets, confidential business
information, or other proprietary information;
WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
Federal Rule of Civil Procedure 26(c):
THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
1.

Each Party may designate as confidential for protection under this Order, in whole or in part,
any document, information or material that constitutes or includes, in whole or in part,
confidential or proprietary information or trade secrets of the Party or a Third Party to whom
the Party reasonably believes it owes an obligation of confidentiality with respect to such
document, information or material ("Protected Material").

Protected Material shall be

designated by the Party producing it by affixing a legend or stamp on such document,
information or material as follows: "CONFIDENTIAL." The word "CONFIDENTIAL"

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shall be placed clearly on each page of the Protected Material (except deposition and hearing
transcripts) for which such protection is sought. For deposition and hearing transcripts, the
word "CONFIDENTIAL" shall be placed on the cover page of the transcript (if not already
present on the cover page of the transcript when received from the court reporter) by each
attorney receiving a copy of the transcript after that attorney receives notice of the
designation of some or all of that transcript as "CONFIDENTIAL."
2.

Any document produced under the Local Patent Rules before issuance of this Order with
the designation "Confidential," "Confidential- Attorneys' Eyes Only," or·"Confidential
- Outside Attorneys' Eyes Only" shall receive the same treatment as if designated
"RESTRICTED- ATTORNEYS' EYES ONLY" under this Order, unless and until such
document is re-designated to have a different classification under this Order.

3.

With respect to documents, information or material designated "CONFIDENTIAL,"
"RESTRICTED- ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL
SOURCE CODE" ("DESIGNATED MATERIAL"), 1 subject to the provisions herein and
unless otherwise stated, this Order governs, without limitation: (a) all documents,
electronically stored information, and/or things as defined by the Federal Rules of Civil
Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as
exhibits or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to
pleadings and other court filings; (d) affidavits; and (e) stipulations.

All copies,

reproductions, extracts, digests and complete or partial summaries prepared from any

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The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
class of materials designated as "CONFIDENTIAL," "RESTRICTED -ATTORNEYS' EYES
ONLY," or "RESTRICTED CONFIDENTIAL SOURCE CODE," both individually and
collectively.
2

DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and
treated as such under this Order.
4.

A designation of Protected Material (i.e., "CONFIDENTIAL,"

"RESTRICTED -

ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL SOURCE CODE")
may be made at any time.

Inadvertent or unintentional production of documents,

information or material that has not been designated as DESIGNATED MATERIAL shall
not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party
that inadvertently or unintentionally produces Protected Material without designating it as
DESIGNATED MATERIAL may request destruction of that Protected Material by
notifying the recipient(s), as soon as reasonably possible after the Producing Party becomes
aware of the inadvertent or unintentional disclosure, and providing replacement Protected
Material that is properly designated. The recipient(s) shall then destroy all copies of the
inadvertently or unintentionally produced Protected Materials and any documents,
information or material derived from or based thereon.
5.

"CONFIDENTIAL" documents, information and material may be disclosed only to the
following persons, except upon receipt of the prior written consent of the designating party,
upon order of the Court, or as set forth in paragraph 12 herein:
a.

outside counsel of record in this Action for the Parties;

b.

employees of such counsel assigned to and reasonably necessary to assist such
counsel in the litigation ofthis Action;

c.

in-house counsel for, or employees of, the Parties who either have responsibility
for making decisions dealing directly with the litigation of this Action, or who are ·
assisting outside counsel in the litigation of this Action;

d.

up to and including three (3) designated representatives of each of the Parties to the
extent reasonably necessary for the litigation of this Action, except that either party
may in good faith request the other party's consent to designate one or more
additional representatives, the other party shall not unreasonably withhold such
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consent, and the requesting party may seek leave of Court to designate such
additional representative(s) if the requesting party believes the other party has
unreasonably withheld such consent;
e.

f.·

independent litigation support services, including persons working for or as court
reporters, graphics or design services, jury or trial consulting services, and
photocopy, document imaging, and database services retained by counsel and
reasonably necessary to assist counsel with the litigation of this Action; and

g.
6.

outside consultants or experts (i.e., not existing employees or affiliates of a Party or
an affiliate of a Party) retained for the purpose of this litigation, provided that: (1)
such consultants or experts are not presently employed by the Parties hereto for
purposes other than this Action; (2) before access is given, the consultant or expert
has completed the Undertaking attached as Exhibit A hereto and the same is served
upon the Producing Party with a current curriculum vitae of the consultant or expert
at least seven (7) days before access to the Protected Material is to be given to that
consultant or Undertaking to object to and notify the Receiving Party in writing that
it objects to disclosure ofProtected Material to the consultant or expert. The Parties
agree to promptly confer and use good faith to resolve any such objection. If the
Parties are unable to resolve any objection, the objecting Party may file a motion
with the Court within fifteen (15) days of the notice, or within such other time as the
Parties may agree, seeking a protective order with respect to the proposed disclosure.
The objecting Party shall have the burden of proving the need for a protective order.
No disclosure shall occur until all such objections are resolved by agreement or
Court order;

the Court and its personnel.

A Party shall designate documents, information or material as "CONFIDENTIAL" only
upon a good faith belief that the documents, information or material contains confidential
or proprietary information or trade secrets of the Party or a Third Party to whom the Party
reasonably believes it owes an obligation of confidentiality with respect to such documents,
information or material.

7.

Documents, information or material produced pursuant to· any discovery request in this
Action, including but not limited to Protected Material designated as DESIGNATED
MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not
be used for any other purpose. Any person or entity who obtains access to DESIGNATED
MATERIAL or the contents thereof pursuant to this Order shall not make any copies,

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duplicates, extracts, summaries or descriptions of such DESIGNA TED MATERIAL or any
portio.n thereof except as may be reasonably necessary in the litigation of this Action. Any
such copies, duplicates; extracts, summaries or descriptions shall be classified
DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
8.

To the extent a Producing Party believes that certain Protected Material qualifying to be
designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
limitation, the Producing Party may designate such Protected Material "RESTRICTED-ATTORNEYS' EYES ONLY," or to the extent such Protected Material includes computer
source code and/or live data (that is, data as it exists residing in a database or databases)
("Source Code Material"), the Producing Party may designate such Protected Material as
"RESTRICTED CONFIDENTIAL SOURCE CODE."

9.

For Protected Material designated RESTRICTED --ATTORNEYS' EYES ONLY, 2 access
to, and disclosure of, such Protected Material shall be limited to individuals listed in
paragraphs 5(a-b) and (e-g).

10.

For Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE, 3
the following additional restrictions apply:
a.

Nothing in this Protective Order shall obligate the parties to produce any Source
Code, nor act as an admission that any particular Source Code is discoverable.

b.

Access to a Party's Source Code Material 4 shall be provided only on "stand-alone"

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For the purposes of this Order, Material that is marked "Confidential- Attorneys' Eyes.Only"
shall be treated as though it were marked "RESTRICTED- ATTORNEYS' EYES ONLY."
3
For the purposes of this Order Material that is marked "CONFIDENTIAL- OUTSIDE
ATTORNEYS' EYES ONLY - SOURCE CODE" shall be treated as though it were marked
"RESTRICTED CONFIDENTIAL SOURCE CODE."
4
"Source Code Material" shall mean source code, object code (i.e. computer instructions and
data definitions expressed in a form suitable for input to an assembler, compiler, or other
translator), microcode, register transfer language ("RTL"), firmware, and hardware description

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computer(s) (that is, the computer may not be linked to any network, including a
local area network ("LAN"), an intranet or the Internet.
The stand-alone
computer(s) will be connected to a printer solely for the limited purposes permitted
pursuant to paragraph lO(i) below. The stand-alone computer(s) may only be
located at the offices of the Producing Party's outside counsel or at such other
location as the Producing Party and Receiving Party mutually agree. The standalone computer may be password protected and shall have the Source Code
Material stored on a hard drive contained inside the computer. The Producing Party
will produce Source Code Material in computer searchable format on the stand-·
alone computer(s). The stand-alone computer shall, at the Receiving Party's
request, include reasonable analysis tools appropriate for the type of Source Code
Material. The Receiving Party shall be responsible for providing the tools or
licenses to the tools that it wishes to use to the Producing Party so that the Producing
Party may install such tools on the stand-alone computer. To the extent that such
tools record local working files or other records reflecting· the work performed by
the Receiving Party, such files and records shall not be reviewed, altered, or deleted
by the Producing Party. If the parties do not otherwise agree on a review tool, the
supplying party shall provide the latest version of Notepad++ and Eclipse IDE
(along with the appropriate plug-ins for the specific source code);.
c.

The Receiving Party shall provide at least three (3) business days' notice to access
the Source Code Material and make reasonable efforts to restrict its requests for
such access to the stand-along computer(s) to normal business hours, which for
purposes of this paragraph shall be 9:00 a.m. through 6:00 p.m. local time at the
reviewing location. However, upon reasonable notice from the Receiving Party, the
Producing Party shall make reasonable efforts to accommodate the Receiving
Party's reasonable request for access to the stand-alone computer(s) outside of
normal business hours. At least one (1) day prior to the review, the Receiving Party
shall provide the identity of the reviewer. The Parties agree to cooperate in good
faith such that maintaining the Producing Party's Source Code Material at the
offices of its outside counsel shall not unreasonably hinder the Receiving Party's
ability to efficiently and effectively conduct the prosecution or defense of this
Action;

d.

The Producing Party shall provide the Receiving Party with information explaining
how to start, log on to, and operate the stand-alone computer(s) in order to access the
produced Source Code Material on the stand-alone computer(s);

e.

The Producing Party will produce Source Code Material in computer searchable

language ("HDL"), as well as any and all programmer notes, annotations, and other comments of
any type related thereto and accompanying the code. For avoidance of doubt, this includes
source files, make files, intermediate output files, executable files, header files, resource files,
library files, module definition files, map files, object files, linker files, browse info files, and
debug files.

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fol1llat on the stand-alone computer(s) as described above;
f.

Access to Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE shall be limited to outside counsel and up to three (3) outside
consultants or experts 5 (i.e., not existing employees or affiliates of a Party or an
affiliate of a Party) retained for the purpose of this litigation and approved to access
such Protected Materials pursuant to paragraph 5(e) ·above. A Receiving Party may
include excerpts of Source Code Material in a pleading, exhibit, expert report,
discovery document, deposition transcript, other Court document, provided that the
Source Code Documents are appropriately marked under this Order, restricted to
those who are entitled to have access to them as specified herein, and, if filed with
the Court, filed under seal in accordance with the Court's rules, procedures and .
orders;

g.

To the extent portions of Source Code Material are quoted in a Source Code
Document, either (1) the entire Source Code Document will be stamped and treated
as RESTRICTED CONFIDENTIAL SOURCE CODE or (2) those pages containing
quoted Source Code Material will be separately stamped and treated as
RESTRICTED CONFIDENTIAL SOURCE CODE;

h.

Except as provided in this paragraph, absent express written permission from the
Producing Party, the Receiving Party may not create electronic copies of the Source
Code from any paper copy of Source Code, except as necessary to create documents
which, pursuant to the Court's rules, procedures and order, must be filed or served
electronically. If a Party reasonably believes that it needs to submit a portion of
Source Code as part of a filing with the Court, the Parties shall meet and confer as
to how to make such a filing while protecting the confidentiality of the Source
Code;

i.

The Receiving Party may print limited portions of the Source Code to the extent
that the code is reasonably necessary to prepare its case and is relevant to the
functionality identified in the infringement or invalidity contentions served
pursuant to the scheduling order in this action. The printed pages shall be collected
by the Producing Party. The Producing Party shall Bates number, copy, and label
"RESTRICTED CONFIDENTIAL - SOURCE CODE" any pages printed by the
Receiving Party. Within five (5) days, the Producing Party shall either (i) provide
one copy set of such pages to the Receiving Party or (ii) inform the Requesting
Party that it objects that the printed portions are excessive and/or not done for a
permitted purpose. If, after meeting and conferring, the Producing Party and the
Receiving Party cannot resolve the objection, the Producing Party may seek
protection from the Court. While the dispute is pending before the Court, the
Producing Party may retain the Source Code that the Producing Party objected to

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For the purposes of this paragraph, an outside consultant or expert is defined to include. the
outside consultant's or expert's direct reports and other support personnel, such that the disclosure
to a consultant or expert who employs others within his or her firm to help in his or her analysis
shall count as a disclosure to a single consultant or expert.
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producing. The Producing Party may not rely on any Source Code for any purposes,
including non-infringement, unless such Source Code was produced to the
Receiving Party during fact discovery as printed pages;
J.

k.

For depositions, the Receiving Party is permitted to bring copies of any printed
Source Code. Copies of Source Code that are marked as deposition exhibits shall
not be provided to the Court Reporter or attached to deposition transcripts; rather,
the deposition record will identify the exhibit by its production numbers. All paper
copies of Source Code brought to the deposition shall remain with the Producing
Counsel's outside counsel

I.

Should such printouts or photocopies be transferred back to electronic media, such
media shall be labeled "RESTRICTED CONFIDENTIAL SOURCE CODE" and
shall continue to be treated as. such. Printouts and photocopies may only be
transferred back to electronic media as set out in Paragraph (h); and

m.

11.

The Receiving Party's outside counsel of record may make no more than five (5)
additional paper copies of any portions of the Source Code received from a
Producing Party pursuant to Paragraph 1O(i), not including copies attached to court
filings or used at depositions, and shall maintain a log of all paper copies of the
Source Code. The log shall include the names of the reviewers and/or recipients of
paper copies and locations where the paper copies are stored. Upon five (5) days'
advance notice to the Receiving Party by the Producing Party, the Receiving Party
shall provide a copy of this log to the Producing Party. The parties agree that the
purpose of this Source Code review log is so that the Producing Party can know the
extent to which others have viewed its Source Code, and not for any litigationinspired purpose, such as impeaching experts. To that end, the log may not be used
for any purpose in this litigation;

If the Receiving Party's outside counsel, consultants, or experts obtain printouts or
photocopies of Source Code Material, the Receiving Party shall ensure that such
outside counsel, consultants, or experts keep the printouts or photocopies in a
secured locked area in the offices of such outside counsel, consultants, or expert.
The Receiving Party may also temporarily keep the printouts or photocopies at: (i) the
Court for any proceedings(s) relating to the. Source Code Material, for the dates
associated with the proceeding(s); (ii) the sites where any deposition(s) relating to
the Source Code Material are taken, for the dates associated with the deposition(s);
and (iii) any intermediate location reasonably necessary to transport the printouts or
photocopies (e.g., a hotel prior to a Court proceeding or deposition).

Any attorney representing a Party and any person associated with a Party and permitted
to receive the other Party's Protected Material that is designated
ATTORNEYS'

EYES

ONLY

RESTRICTED

and/or RESTRICTED CONFIDENTIAL SOURCE

CODE (collectively "HIGHLY SENSITIVE MATERIAL"), who obtains, receives, has

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access to, or otherwise learns, in whole or in part, the other Party's HIGHLY SENSITNE
MATERIAL under this Order shall not prepare, prosecute, supervise, or assist in the
preparation or prosecution of any patent application pertaining to the field of the invention
of the patents-in-suit on behalf of the Receiving Party or its acquirer, successor,
predecessor, or other affiliate during the pendency of this Action and for one year after its
conclusion, including any appeals. Nothing in this Order shall preclude an attorney
representing a Party and any person associated with a Party and permitted to receive the
other Party's Protected Material that is designated HIGHLY SENSITNE MATERIAL,
who obtains, receives, has access to, or otherwise learns, in whole or in part, the other
Party's HIGHLY SENSITNE MATERIAL under this Order from participating in an inter
partes review.

12.

Nothing in this Order shall require production of documents, information or other material
that a Party contends is protected from disclosure by the attorney-client privilege, the work
product doctrine, or other privilege, doctrine, or immunity. If documents, information or
other material subject to a claim of attorney-client privilege, work product doctrine, or other
privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
produces documents, information or other material it reasonably believes are protected under
the attorney-client privilege, work product doctrine, or other privilege, doctrine, or immunity
may obtain the return or destruction of such documents, information or other material
· by promptly notifying the recipient(s) and providing a privilege log for the inadvertently
or unintentionally produced documents, information or other material. The recipient(s)

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shall gather and return/destroy all copies of such d<;>cuments, information or other material
to the Producing Party, except for any pages containing privileged or otherwise protected
markings by the recipient(s), which pages shall instead be destroyed and certified as
such to the Producing Party.
13.

There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized
to have access thereto to any person who is not authorized for such access under this Order.
The Parties are hereby ORDERED to safeguard all such documents, information and
material to protect against disclosure to any unauthorized persons or entities.

14.

Nothing contained herein shall be construed to prejudice any Party's right to use any
DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
access to the DESIGNATED MATERIAL by virtue of his or her employment with the
designating party, (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
or copy recipient of such information, (iii) although not identified as an author, addressee,
or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
business, seen such DESIGNATED MATERIAL, (iv}a current or former officer, director,
employee, or representative pursuant to Rule 30(b)(6) of the Producing Party or a current
or former officer, director or employee of a company affiliated with the Producing Party;
(v) counsel for a Party, including outside counsel and in-house counsel (subject to
paragraph 9 of this Order); (vi) an independent contractor, consultant, and/or expert
retained for the purpose of this litigation; (vii) court reporters and videographers; (viii) the
Court; or (ix) other persons entitled hereunder to access to DESIGNA TED MATERIAL.
DESIGNATED MATERIAL shall not be disclosed to any other persons unless prior

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authorization is obtained from counsel representing the Producing Party or from the Court.
15.

Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
deposition or hearing transcript, designate the deposition or hearing transcript or any portion
thereof as "CONFIDENTIAL," "RESTRICTED - ATTORNEY' EYES ONLY," or
"RESTRICTED CONFIDENTIAL SOURCE CODE" pursuant to this Order. Access to the
deposition or hearing transcript so designated shall be limited in accordance with the terms
of this Order.

Until expiration of the 30-day period, the entire deposition or hearing

transcript shall be treated as confidential.
16.

Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal in
accordance with Local Civil Rule 79.2 and Section T of the Com1's CMIECF Policy
Manual and shall remain under seal until further order of the Court. Prior to filing under
seaL the filing party shall file a motion to seal. The motion to seal may be filed without a
supporting memorandum only if the filing party can cite a statute or rule (federaL local or
standing order) that requires the filing to be sealed. Absent such authority, the filing partv
must submit a supporting memorandum that specifies:
a. the exact document or item, or portions thereof, for which filing under seal
is requested;
b. how such request to seal overcomes the common law or the First
Amendment presumption to access;
c. the specific qualities of the material at issue which justify sealing such
materiaL taking into account the balance of competing interest in access:
d. the reasons why alternatives to sealing are inadequate: and
e. whether there is consent to the motion.

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The filing party shall be-responsible for. informing the Clerk of the. Court that the filing
should be sealed and for placing the legend "FILED UNDER SEAL PURSUANT TO
PROTECTIVE ORDER" above the caption m1d conspicuously on each page of the filing.
Exhibits to a sealed filing shall conform to the labeling requirements set forth in this Order.
If a pretrial pleading filed with the Court, or an exhibit thereto, discloses or relies on
confidential documents, information or material, such confidential portions shall be
redacted to the extent necessary and the pleading or exhibit filed publicly with the Court.
+&.-lL_The Order applies to pretrial discovery. Nothing in this Order shall be deemed to prevent
the Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of
this Action, or from using any information contained in DESIGNATED MATERIAL at the
trial of this Action, subject to any pretrial order issued by this Court.
-l-+.-~A

Party may request in writing to the other Party that the designation given to any

DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does not
agree tore-designation within ten (10) days of receipt of the written request, the requesting
Party may apply to the Court for relief. Upon any such application to the Court, the burden
shall be on the designating Party to show why its classification is proper. Such application
shall be treated procedurally as a motion to compel pursuant to Federal Rules of Civil
Procedure 37, subject to the Rule's provisions relating to sanctions.

In making such

application, the requirements of the Federal Rules of Civil Procedure and the Local Rules
of the Court shall be met.

Pending the Court's determination of the application, the

designation of the designating Party shall be maintained.
+&~Each

outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in

accordance with the terms of this Order shall be advised by counsel of the terms of this

12

Order, shall be informed that he or she is subject to the terms and conditions ofthis Order,
and shall sign an acknowledgment that he or she has received a copy of; has read, and has
agreed to be bound by this Order. A copy of the acknowledgment form is attached as
Appendix A.
-l-9-:-20. To the extent that any discovery is taken of persons who are not Parties to this Action
("Third Parties") and in the event that such Third Parties contended the discovery sought
involves trade secrets, confidential business information, or other proprietary information,
then such Third Parties may agree to be bound by this Order.
~6.L_To

the extent that discovery or testimony is taken of Third Parties, the Third Parties may

designate as "CONFIDENTIAL" or "RESTRICTED --ATTORNEYS' EYES ONLY" any
documents, information or other material, in whole or in part, produced or give by such
(

Third Parties. The Third Parties shall have ten ( 10) days after production of such documents,
information or other materials to make such a designation. Until that time period lapses or
until such a designation has been made, whichever occurs sooner, all documents, information
or other material so produced or given shall be treated as "CONFIDENTIAL" in accordance
with this Order.
fr-22. Within sixty (60) days of final termination of this Action, including any appeals, all
DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes, summaries,
descriptions, and excerpts or extracts thereof (excluding excerpts or extracts incorporated
into any privileged memoranda of the Parties and materials which have been admitted into
evidence in this Action), shall either be returned to the Producing Party or be destroyed.
The Receiving Party shall verify the return or destruction by affidavit furnished to the
Producing Party, upon the Producing Party's request.

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~23.

The failure to designate documents, information or material in accordance with this Order
and the failure to object to a designation at a given time shall not preclude the filing of a
motion at a later date seeking to impose such designation or challenging the propriety
thereof. The entry of this Order and/or the production of documents, information and
material hereunder shall in no way constitute a waiver of any objection to the furnishing
thereof, all such objections being hereby preserved.

fr.24. Any Party knowing or believing that any other party is in violation of or intends to violate
this Order and has raised the question of violation or potential violation with the opposing
party and has been unable to resolve the matter by agreement may move the Court for such
relief as may be appropriate in the circumstances. Pending disposition of the motion by the
Court, the Party alleged to be· in violation of or intending to violate this Order shall
discontinue the performance of and/or shall not undertake the further performance of any
action alleged to constitute a violation of this Order.
24:.25. Production of DESIGNATED MATERIAL by each ofthe Parties shall not be deemed a
publication of the documents, information and material (or the contents thereof) produced
so as to void or make voidable whatever claim the Parties may have as to the proprietary and
confidential nature of the documents, information or other material or its contents.
~26.

Nothing in this Order shall be construed to effect an abrogation, waiver or limitation of any
kind on the rights of each of the Parties to assert any applicable discovery or trial privilege.

~2 7.

Each of the Parties shall also retain the right to file a motion with the Court (a) to modify this
Order to allow disclosure of DESIGNATED MATERIAL to additional persons or entities
if reasonably necessary to prepare and present this Action and (b) to apply for additional
protection ofDESIGNATED MATERIAL.

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28.

No privileged communications and/or attorney work product, or other information and/or
communications subject to an applicable privilege or exemption from discovery created
after and including January 4; 2016, need be identified on a privilege log.

Dated: June 1. 2016

Is/ Jonathan H Rastegar
Lynne A. Borchers
N.C. Bar No. 32386

Respectfully submitted.

Is/ Robert C. Van Arnam
Robert C. Van Arnam
N.C. Bar No. 28838
WILLIAMS MULLEN, P.C.

MYERS BIGEL SIBLEY, P.A

4140 Parklake Avenue, Suite 600
Raleigh. North Carolina 27612
919-854-1400 (telephone)
919-854-1401 (facsimile)
[e-mail]
Jeffrey R. Bragalone
(admitted pro hac vice)
Texas Bar No. 02855775
Patrick J. Conroy
(admitted pro hac vice)
Texas Bar No. 24012448
Jonathan H. Rastegar
(admitted pro hac vice)
Texas Bar No. 24064043
BRAGALONE CONROY PC

2200 Ross A venue
Suite 4500W
Dallas. TX 75201
Tel: [phone]
Fax: [phone]
jbragalone@bcpc-law .com
[e-mail]
[e-mail]

301 Fayetteville Street. Suite 1700
Raleigh. North Carolina 27601
Telephone: [phone]
Facsimile: i 919-981-4300
[e-mail]
Kevin P.B. Johnson
Cal. State BarNo. 177129
QUINN EMANUEL URQUHART & SULLIVAN

555 Twin Dolphin Dr ..
Redwood City. CA 94065
Telephone: [phone]
Facsimile: i 650-801-5100
[e-mail]
Sam Stake
Cal. State Bar No. 257916
Michael Bruns
Cal. State Bar No. 305470
QUINN EMANUEL URQUHART & SULLIVAN

50 Califomia St #22.
San Francisco. CA 94111
Telephone: [phone]
Facsimile: i 415-875-6700
[e-mail]
[e-mail]

Attorneys for Plaintiff

Attomeys for Defendant

V ALENCELL, INC.

FITBIT, INC.

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So ORDERED 13 dav of June, 2016.

UNITED STATES MAGISTRATE JUDGE

16

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION

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VALENCELL, INC.,
Pllaintiff,

v.
FITBIT, INC.,
Defendant.

C.A. No. 5:16-cv-00002-D
JURY TRIAL DEMANDED

APPENDIX A
UNDERTAKING OF EXPERTS OR CONSULTANTS REGARDING PROTECTIVE
ORDER

I , - - - - - - - - - - - - - - - - - - - ' declare that:
1.

My address i s - - - - - - - - - - - - - - - - - - - - - - - My current employer i s - - - - - - - - - - - - - - - - - - - My current occupation i s - - - - - - - - - - - - - - - - - - - -

2.

I have received a copy of the Protective Order in this action. I have carefully read
and understand the provisions of the Protective Order.

3.

I will comply with all of the provisions of the Protective Order. I will hold in confidence,
will not disclose to anyone not qualified under the Protective Order, and will use only
for purposes of this action any information designated as "CONFIDENTIAL,"
"RESTRICTED-- ATTORNEYS' EYES ONLY," or"RESTRICTED CONFIDENTIAL
SOURCE CODE" that is disclosed to me.

4.

Promptly upon termination of these actions, I will return all documents and things
designated as "CONFIDENTIAL," "RESTRICTED-- ATTORNEYS' EYES ONLY,"
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or "RESTRICTED CONFIDENTIAL SOURCE CODE" that came into rriy possession,
and all documents and things that I have prepared relating thereto, to the outside counsel
for the party by whom I am employed.

5.

I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the
Protective Order in this action.
I declare under penalty of perjury that the foregoing is true and correct.

Signamre _____________________________________
D~e

_______________________________________

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