Verasonics, Inc. v. SuperSonic Imagine, S.A.

Filing 22

STIPULATED PROTECTIVE ORDER re[ parties' 21] Stipulated MOTION Joint Stipulated Protective Order, signed by Judge Thomas S. Zilly. (SWT)

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Honorable Thomas S. Zilly 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 8 9 CASE NO. 2:17-cv-01764-TSZ VERASONICS, INC., a Washington corporation, 10 JOINT STIPULATED PROTECTIVE ORDER 11 Plaintiff, 12 v. 13 SUPERSONIC IMAGINE, S.A., a French société anonyme, 14 15 Defendant. 16 17 Plaintiff Verasonics, Inc. and Defendant SuperSonic Imagine, S.A. (each individually 18 referred to herein as a “Party” and collectively as the “Parties”)1 stipulate and agree to this 19 protective order in the interest of efficiency and judicial economy, particularly in the interest of 20 avoiding ancillary litigation of discovery issues relating to confidential commercial and/or 21 proprietary information, and the procedures set forth herein for designating and protecting 22 confidential commercial and/or proprietary information. The Parties stipulate to the following 23 terms. 24 25 26 1 As used herein the term “Non-Party” means any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action. 1 20214 00001 ha096z181x 1 1. PURPOSES AND LIMITATIONS 2 Discovery in this action is likely to involve production of trade secret, confidential, 3 proprietary, or private information for which special protection may be warranted. Accordingly, 4 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 5 Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does not 6 confer blanket protection on all disclosures or responses to discovery, the protection it affords 7 from public disclosure and use extends only to the limited information or items that are entitled 8 to confidential treatment under the applicable legal principles, and it does not presumptively 9 entitle parties to file confidential information under seal. 10 2. CONFIDENTIAL, HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY, AND 11 HIGHLY CONFIDENTIAL—SOURCE CODE MATERIAL Confidential 12 Information 13 CONFIDENTIAL—OUTSIDE may be COUNSEL designated ONLY” or “CONFIDENTIAL,” “HIGHLY “HIGHLY CONFIDENTIAL— 14 SOURCE CODE” as described below. 15 (a) “CONFIDENTIAL” material shall include the following documents and tangible things 16 produced or otherwise exchanged: non-public design and technical information; non-public 17 competitive analyses; customer lists; marketing, accounting, sales, licensing, pricing, and 18 investment information; market projections and forecasts; strategic plans and financial 19 information; sensitive information concerning trade secrets; know-how; product research; design, 20 testing, development, functionality and manufacturing or other non-public research and 21 development information; personal and/or private identifying information (e.g., birthdates, bank 22 account numbers, social security numbers, home addresses); or information otherwise 23 maintained by a Party or Non-Party as confidential in the ordinary course of business. 24 (b) “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” material shall include the 25 following documents and tangible things produced or otherwise exchanged: extremely sensitive 26 CONFIDENTIAL material, the disclosure of which to another Party or Non-Party would create a 2 20214 00001 ha096z181x 1 substantial risk of serious harm to the disclosing Party or Non-Party that could not be avoided by 2 less restrictive means. 3 (c) “HIGHLY CONFIDENTIAL—SOURCE CODE” or “SOURCE CODE” material shall 4 include CONFIDENTIAL non-public information representing computer code and associated 5 comments and revision histories that define or otherwise describe in detail the algorithms or 6 structure of computer programs or software designs. SOURCE CODE includes, without 7 limitation, human-readable programming language text that defines a computer program, 8 software, firmware, or electronic hardware description. SOURCE CODE also includes text files 9 containing computer code including but not limited to files containing code written in scripting 10 languages, “C,” “C++,” C#, assembly language, hardware description language (“HDL”), 11 VHDL, Verilog, and digital signal processor (“DSP”) programming languages, as well as 12 “.include files,” “make” files, link files, and other human-readable text files used in the 13 generation and/or building of software directly executed on a microprocessor, micro-controller, 14 or DSP. SOURCE CODE does not include binary executable files and object code files, nor 15 does it include tools such as compilers or linkers. 16 3. SCOPE 17 The protections conferred by this agreement cover not only CONFIDENTIAL, HIGHLY 18 CONFIDENTIAL – OUTSIDE COUNSEL ONLY, and HIGHLY CONFIDENTIAL— 19 SOURCE CODE material (as defined above), but also (1) any information copied or extracted 20 from such material; (2) all copies, excerpts, summaries, or compilations of such material; and (3) 21 any testimony, conversations, or presentations by the Parties, Non-Parties or their counsel that 22 might reveal such material. However, the protections conferred by this agreement do not cover 23 information that is in the public domain or becomes part of the public domain through trial or 24 otherwise provided that the Party or Non-Party making the public disclosure was under no 25 obligation, whether by contract, court order, or operation of law, to keep the information non26 public. 3 20214 00001 ha096z181x 1 4. ACCESS TO AND USE OF CONFIDENTIAL, HIGHLY CONFIDENTIAL – 2 OUTSIDE COUNSEL ONLY, AND HIGHLY CONFIDENTIAL—SOURCE CODE 3 MATERIAL 4 4.1 Basic Principles. A receiving Party may use CONFIDENTIAL, HIGHLY 5 CONFIDENTIAL—OUTSIDE COUNSEL ONLY, and HIGHLY CONFIDENTIAL— 6 SOURCE CODE material (collectively “PROTECTED MATERIALS”) that is disclosed or 7 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 8 defending, or attempting to settle this litigation. PROTECTED MATERIALS may be disclosed 9 only to the categories of persons and under the conditions described in this agreement. 10 PROTECTED MATERIALS must be stored and maintained by a receiving Party at a location 11 and in a secure manner consistent with all provisions of this agreement that ensures that access is 12 limited to the persons authorized under this agreement. 13 4.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise 14 ordered by the court or permitted in writing by the designating Party or Non-Party, a receiving 15 Party may disclose “CONFIDENTIAL” material only to: 16 (a) the receiving Party’s outside counsel of record in this action, as well as 17 employees of counsel to whom it is reasonably necessary to disclose the information for this 18 litigation, including, but not limited to, contract review attorneys, law clerks, paralegals, and 19 legal secretaries; 20 (b) the officers, directors, and employees (including in-house counsel) of the 21 receiving Party to whom disclosure is reasonably necessary for this litigation; 22 (c) experts and consultants to whom disclosure is reasonably necessary for 23 this litigation, provided that before access to any PROTECTED MATERIALS is given: (1) the 24 outside consultant or expert completes and signs the “Acknowledgment and Agreement to Be 25 Bound” (Exhibit A), and (2) the Party proposing to disclose PROTECTED MATERIALS to an 26 outside expert or consultant complies with the procedures outlined in Paragraph 4.4; 4 20214 00001 ha096z181x 1 (d) the court, court personnel, court reporters, videographers and their staff; 2 (e) copy, document management, electronic discovery or imaging services, or 3 graphics or design services professionals retained by outside counsel to assist in the management 4 and duplication of confidential material, provided that outside counsel for the Party retaining the 5 copy, document management, electronic discovery, imaging or graphics or design services 6 professionals instructs the service not to disclose any confidential material to third parties and to 7 immediately return all originals and copies of any confidential material upon completion of the 8 service; 9 (f) during their depositions, witnesses in the action to whom disclosure is 10 reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound” 11 (Exhibit A), unless otherwise agreed by the designating Party or Non-Party or ordered by the 12 court. Pages of transcribed deposition testimony or exhibits to depositions that reveal designated 13 material must be separately bound by the court reporter and may not be disclosed to anyone 14 except as permitted under this agreement; 15 (g) the author or recipient of a document containing the information or a 16 custodian or other person who otherwise possessed or knew the information; 17 (h) trial and jury consultants, including, but not limited to, mock jurors who 18 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and 19 (i) any mediator retained by the Parties or appointed by the Court in this 20 action and employees of such mediator who are assisting in the conduct of the mediation. 21 4.3 Disclosure of “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” and 22 “HIGHLY CONFIDENTIAL—SOURCE CODE” Information or Items. Unless otherwise 23 ordered by the court or permitted in writing by the designating Party or Non-Party, a receiving 24 Party may disclose “HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY” material 25 only to those persons identified in Section 4.2 (a, c-i) and “HIGHLY CONFIDENTIAL— 26 SOURCE CODE” material only to those persons identified in Section 4.2 (a, c, d, f, g and i). 5 20214 00001 ha096z181x 1 4.4 Challenging Expert or Consultant 2 (a) Prior to the disclosure of PROTECTED MATERIALS to an expert or consultant, 3 the Party proposing to provide PROTECTED MATERIALS to the expert or consultant (i.e., the 4 receiving Party) shall, provide the producing Party or Non-Party with: (i) a current curriculum 5 vitae for the expert or consultant, which shall include (a) the expert or consultant’s name and 6 address, (b) a description of past and present employers by whom the expert or consultant has 7 been employed, (c) a description of persons or entities by whom the expert has been engaged in 8 any consulting or expert engagements within the last five (5) years, as well as a general 9 description of the nature of such engagements, and (d) and a listing of cases in which the expert 10 or consultant has testified as an expert at trial or by deposition within the preceding five (5) 11 years; and (ii) a completed “Acknowledgment and Agreement to Be Bound” (Exhibit A) signed 12 by the proposed expert or consultant. 13 If an expert or consultant is precluded by virtue of a non-disclosure agreement from 14 disclosing either the existence or nature of a prior consulting or expert engagement or the 15 identity of the entity for which the engagement was or is being performed, then the expert or 16 consultant shall state that certain information is being withheld on that basis and shall 17 supplement his/her disclosure with such additional information as he/she believes would be 18 helpful to the Parties and/or the producing Non-Party and the Court in determining whether any 19 undisclosed consulting relationship would create a likelihood that the expert or consultant would 20 have a conflict of interest in the engagement for this litigation, or should otherwise be precluded 21 from acting as an expert or consultant in this litigation. 22 (b) Within seven (7) business days after the producing Party or Non-Party’s receipt of 23 the information described in paragraph 4.4(a) and the signed undertaking in the form of Exhibit 24 A, the producing Party or Non-Party may object in writing (including via email) to the proposed 25 expert or consultant. A Party or Non-Party objecting to disclosure of PROTECTED 26 MATERIALS to an expert or consultant shall state with particularity the ground(s) of the 6 20214 00001 ha096z181x 1 objection. Absent written agreement of the Parties and/or Non-Party (as applicable), no 2 PROTECTED MATERIALS may be disclosed to such expert or consultant until after the 3 expiration of seven (7) business days for the producing Party to object or while the producing 4 Party’s objection is pending. Failure to object in writing to a proposed expert or consultant 5 within seven (7) business days after receipt of the information described in paragraph 4.4(a) will 6 be deemed a waiver of any objection to the proposed expert or consultant, provided, however, 7 that failure to object to an expert or consultant shall not preclude a Party or Non-Party from later 8 objecting to continued access to the Party or Non-Party’s PROTECTED MATERIALS by that 9 expert or consultant where facts suggesting a basis for objection could not have been discovered 10 by the objecting Party or Non-Party, or their counsel, exercising due diligence, within the period 11 for making a timely objection. If a later objection is made, no further PROTECTED 12 MATERIALS shall be disclosed to the expert or consultant until the matter is resolved by the 13 Court or agreement of the parties. 14 (c) If the producing Party or Non-Party objects to the proposed expert or consultant, 15 the producing Party or Non-Party and the receiving Party shall meet and confer in good faith in 16 an attempt to resolve their dispute without resort to the Court. If the dispute remains unresolved 17 seven (7) business days following the producing Party or Non-Party’s communication of its 18 objection, then the receiving Party shall have seven (7) business days to file a motion pursuant to 19 L.R. 7 seeking a ruling from the Court as to the merits of the producing Party or Non-Party’s 20 objection. Pending a ruling by the Court, the proposed expert or consultant shall not have access 21 to the producing Party or Non-Party’s PROTECTED MATERIALS. Failure to seek a ruling 22 from the Court as described above will be deemed a waiver of the receiving Party’s request for 23 the proposed expert or consultant to access PROTECTED MATERIALS. 24 4.5 Prosecution Activity, Prosecution Bar 25 Outside Counsel of a receiving Party who reviews any producing Party or Non-Party’s 26 HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY or HIGHLY CONFIDENTIAL— 7 20214 00001 ha096z181x 1 SOURCE CODE materials shall not directly or indirectly draft or amend claims (or provide 2 advice or counsel concerning the drafting or amending of claims) of any patent or patent 3 application in the field of ultrasound technology for a period commencing upon review of such 4 information and ending one (1) year following the final resolution of this litigation including all 5 appeals. These prohibitions (i) are personal to the person reviewing HIGHLY 6 CONFIDENTIAL—OUTSIDE COUNSEL ONLY or HIGHLY CONFIDENTIAL—SOURCE 7 CODE material in this litigation and shall not be imputed to any other person or entity and (ii) 8 shall not be triggered by an attorney’s reviewing or otherwise learning the substance of his or her 9 client’s own information. Nothing in this paragraph or Stipulated Protective Order shall be 10 construed as preventing any attorney from challenging or defending the validity or enforceability 11 of any patent, including without limitation in proceedings in court or inter partes review, post12 grant review, reexamination, reissue, or any other administrative proceedings in the United 13 States or foreign patent offices. 14 4.6 Filing PROTECTED MATERIALS. Before filing PROTECTED MATERIALS 15 or discussing or referencing such material in court filings, the filing party shall confer with the 16 designating Party or Non-Party to determine whether the designating Party or Non-Party will 17 remove the designation, whether the document can be redacted, or whether a motion to seal or 18 stipulation and proposed order is warranted. Local Civil Rule 5(g) sets forth the procedures that 19 must be followed and the standards that will be applied when a Party seeks permission from the 20 court to file material under seal. 21 5. DESIGNATING PROTECTED MATERIALS 22 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party 23 or Non-Party that designates information or items for protection under this agreement must take 24 care to limit any such designation to specific material that qualifies under the appropriate 25 standards. The designating Party or Non-Party must designate for protection only those parts of 26 material, documents, items, or oral or written communications that qualify, so that other portions 8 20214 00001 ha096z181x 1 of the material, documents, items, or communications for which protection is not warranted are 2 not swept unjustifiably within the ambit of this agreement. 3 Mass, indiscriminate, or routinized designations are prohibited. Designations that are 4 shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 5 unnecessarily encumber or delay the case development process or to impose unnecessary 6 expenses and burdens on other parties) expose the designating Party or Non-Party to sanctions. 7 If it comes to a designating Party or Non-Party’s attention that information or items that it 8 designated for protection do not qualify for protection, the designating Party or Non-Party must 9 promptly notify all other Parties that it is withdrawing the mistaken designation. 10 5.2 Manner and Timing of Designations. Except as otherwise provided in this 11 agreement (see, e.g., section 5.2(b) below), or as otherwise stipulated or ordered, disclosure or 12 discovery material that qualifies for protection under this agreement must be clearly so 13 designated before or when the material is disclosed or produced. 14 (a) Information in documentary form: (e.g., paper or electronic documents 15 and deposition exhibits, but excluding transcripts of depositions or other pretrial or trial 16 proceedings), the designating party must affix the words “CONFIDENTIAL,” “HIGHLY 17 CONFIDENTIAL—OUTSIDE COUNSEL ONLY,” or “HIGHLY CONFIDENTIAL— 18 SOURCE CODE” to each page that contains designated material. 19 (b) Testimony given in deposition or in other pretrial proceedings: the Parties 20 and any participating Non-Parties must identify on the record, during the deposition or other 21 pretrial proceeding, all protected testimony, without prejudice to their right to so designate other 22 testimony after reviewing the transcript. Any Party or Non-Party may, within fifteen (15) days 23 after receiving the transcript of the deposition or other pretrial proceeding, designate portions of 24 the transcript, or exhibits thereto, as CONFIDENTIAL, HIGHLY CONFIDENTIAL— 25 OUTSIDE COUNSEL ONLY, or HIGHLY CONFIDENTIAL—SOURCE CODE. Until such 26 time as this fifteen (15) day period has expired, the entirety of the deposition transcript shall be 9 20214 00001 ha096z181x 1 presumptively treated by the receiving Party as having been designated by the producing Party or 2 Non-Party as HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY. If a Party or Non3 Party desires to protect PROTECTED MATERIALS at trial, the issue should be addressed 4 during the pre-trial conference. 5 (c) Other tangible items: the producing party must affix in a prominent place 6 on the exterior of the container or containers in which the information or item is stored the words 7 “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL–OUTSIDE 8 “HIGHLY CONFIDENTIAL—SOURCE CODE. COUNSEL ONLY,” or If only a portion or portions of the 9 information or item warrant protection, the producing Party or Non-Party, to the extent 10 practicable, shall identify the protected portion(s). 11 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 12 designate qualified information or items does not, standing alone, waive the designating Party or 13 Non-Party’s right to secure protection under this agreement for such material. Upon timely 14 correction of a designation, the receiving Party must make reasonable efforts to ensure that the 15 material is treated in accordance with the provisions of this agreement. 16 6. CHALLENGING DESIGNATIONS 17 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation at 18 any time. Unless a prompt challenge to a designating Party or Non-Party’s designation is 19 necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a 20 significant disruption or delay of the litigation, a Party does not waive its right to challenge a 21 designation by electing not to mount a challenge promptly after the original designation is 22 disclosed. 23 6.2 Meet and Confer. The Parties and/or Non-Party must make every attempt to 24 resolve any dispute regarding designations without court involvement. Any motion regarding 25 designations or for a protective order must include a certification, in the motion or in a 26 declaration or affidavit, that the movant has engaged in a good faith meet and confer conference 10 20214 00001 ha096z181x 1 with other affected parties in an effort to resolve the dispute without court action. The 2 certification must list the date, manner, and participants to the conference. A good faith effort to 3 confer requires a face-to-face meeting or a telephone conference. 4 6.3 Judicial Intervention. If the Parties and/or Non-Party cannot resolve a challenge 5 without court intervention, the designating Party or Non-Party may file and serve a motion to 6 retain the designation under Local Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if 7 applicable). The burden of persuasion in any such motion shall be on the designating Party or 8 Non-Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or 9 impose unnecessary expenses and burdens on other parties) may expose the challenging Party to 10 sanctions. All Parties shall continue to maintain the material in question as CONFIDENTIAL, 11 HIGHLY CONFIDENTIAL—OUTSIDE COUNSEL ONLY, or HIGHLY CONFIDENTIAL— 12 SOURCE CODE as designated until the court rules on the challenge. 13 7. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 14 LITIGATION 15 If a Party is served with a subpoena or a court order issued in other litigation that compels 16 disclosure of any PROTECTED MATERIALS that party must: 17 (a) promptly notify the designating Party or Non-Party in writing and include 18 a copy of the subpoena or court order; 19 (b) promptly notify in writing the party who caused the subpoena or order to 20 issue in the other litigation that some or all of the material covered by the subpoena or order is 21 subject to this agreement. Such notification shall include a copy of this agreement; and 22 (c) cooperate with respect to all reasonable procedures sought to be pursued 23 by the designating Party or Non-Party whose PROTECTED MATERIALS may be affected. 24 8. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 25 If a receiving Party learns that, by inadvertence or otherwise, it has disclosed 26 PROTECTED MATERIALS to any person or in any circumstance not authorized under this 11 20214 00001 ha096z181x 1 agreement, the receiving Party must immediately (a) notify in writing the designating Party or 2 Non-Party of the unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized 3 copies of the protected material, (c) inform the person or persons to whom unauthorized 4 disclosures were made of all the terms of this agreement, and (d) request that such person or 5 persons execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as 6 Exhibit A. 7 9. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 8 MATERIAL When a producing Party or Non-Party gives notice to receiving Parties that certain 9 10 inadvertently produced material is subject to a claim of privilege or other protection, the 11 obligations of the receiving Parties are those set forth in Federal Rule of Civil Procedure 12 26(b)(5)(B). This provision is not intended to modify whatever procedure may be established in 13 an e-discovery order or agreement that provides for production without prior privilege review. 14 The parties agree to the entry of a non-waiver order under Fed. R. Evid. 502(d) as set forth 15 herein. Any inadvertently produced material so produced and subject to a claim of privilege or a 16 17 claim of work product subsequently made shall immediately be returned to the producing Party 18 and/or expunged and in either event such material shall not be introduced into evidence in this 19 proceeding or any other proceeding by any person without the consent of the producing Party or 20 by Order of the Court. 21 22 10. TERMINATION AND RETURN OF DOCUMENTS 23 Within 60 days after the termination of this action, including all appeals, each receiving 24 party must return all PROTECTED MATERIALS to the producing party, including all copies, 25 extracts and summaries thereof. Alternatively, the parties may agree upon appropriate methods 26 of destruction. 12 20214 00001 ha096z181x 1 Notwithstanding this provision, outside counsel of record are entitled to retain one 2 archival copy of all documents filed with the court, trial, deposition, and hearing transcripts, 3 correspondence, deposition and trial exhibits, expert reports, attorney work product, and 4 consultant and expert work product, even if such materials contain PROTECTED MATERIALS. 5 The obligations imposed by this agreement shall remain in effect until a designating Party 6 or Non-Party agrees otherwise in writing or a court orders otherwise. 7 11. 8 9 PRODUCTION OF HIGHLY CONFIDENTIAL—SOURCE CODE 11.1 Access. Any SOURCE CODE produced in discovery shall be made available for inspection during the discovery period in a format allowing it to be reasonably reviewed and 10 11 searched, during normal business hours (which for the purposes of this paragraph shall be 12 9:00am through 5:00pm local time) or at other mutually agreeable times, at a mutually agreed 13 upon U.S. office of the producing Party or Non-Party’s outside counsel of record or another 14 mutually agreed upon location. The SOURCE CODE shall be made available for inspection on a 15 secured, stand-alone computer (“SOURCE CODE Computer”) in a secured room without 16 Internet access or network access to other computers, and the receiving Party shall not copy, 17 remove or otherwise transfer any portion of the SOURCE CODE onto any recordable media or 18 19 recordable device. The producing Party or Non-Party may visually monitor the activities of the 20 receiving Party’s representatives during any SOURCE CODE review, but only to ensure that 21 there is no unauthorized recording, copying, or transmission of the SOURCE CODE; this 22 provision does not entitle the producing Party or Non-Party’s representative to visually monitor 23 24 the portions of the SOURCE code the receiving Party’s representatives choose to review. The producing Party or Non-Party, at its sole discretion, may choose to waive any or all of the default 25 26 requirements in this section 11 for its own convenience. 13 20214 00001 ha096z181x 1 The producing Party or Non-Party shall provide the receiving Party with information 2 explaining how to start, log on to, and operate the SOURCE CODE computer in order to access 3 the produced SOURCE CODE on the SOURCE CODE computer. 4 11.2 Software Search Tools. The receiving Party may request that the producing Party 5 or Non-Party install software tools on the SOURCE CODE computer to aid in viewing, 6 searching and analyzing the SOURCE CODE, which request shall not be unreasonably denied. 7 Absent agreement of the Parties and/or Non-Party (as applicable) otherwise, the receiving Party 8 shall provide any such software tools that it wishes to use to the producing Party or Non-Party at 9 10 least ten (10) business days in advance of the receiving Party’s review so that the producing 11 Party or Non-Party may install the tools on the SOURCE CODE computer. The receiving Party 12 shall bear the costs of purchasing or licensing any software tool it requests the producing Party or 13 14 Non-Party to install on the SOURCE CODE computer. To the extent a producing Party or NonParty objects to the use of a software tool requested by the receiving Party, the producing Party 15 16 or Non-Party and the receiving Party shall meet and confer in good faith in an effort to resolve 17 the producing Party or Non-Party’s objection. The producing Party or Non-Party must state with 18 particularity its objection to the receiving Party’s use of the requested software tool. If, after ten 19 (10) business days, the parties are unable to resolve the producing Party or Non-Party’s 20 objection, the receiving Party may seek relief from the Court. 21 11.4 Records. Each time a receiving Party’s representative accesses the SOURCE 22 CODE Computer, the producing Party or Non-Party may require such person to complete a 23 24 SOURCE CODE review log identifying: (1) the person’s name; (2) the date and time access 25 began; and (3) the date and time access ended. 26 14 20214 00001 ha096z181x 1 11.5 No Modifications. No person other than the producing Party or Non-Party may 2 alter, dismantle, disassemble or modify the SOURCE CODE computer in any way, or attempt to 3 circumvent any security feature of the SOURCE CODE computer. In order to verify that its 4 SOURCE CODE has not later been altered, the producing party may benchmark the materials to 5 confirm that the materials have not been altered before and after they are provided but shall not 6 install any keystroke or other monitoring software on the SOURCE CODE computer. 7 11.5 Notice. Absent agreement of the Parties and/or Non-Party (as applicable), the 8 receiving Party shall notify the producing Party or Non-Party at least ten (10) business days in 9 10 advance of a request to review the SOURCE CODE and shall identify the individual(s) that will 11 be reviewing the SOURCE CODE. 12 13 14 11.6 Copies. Absent an order from the Court or written agreement of the producing Party or Non-Party, and except as provided herein, no representative of the receiving Party shall make any copies of the producing Party or Non-Party’s SOURCE CODE, whether physical, electronic, or 15 16 otherwise, other than volatile copies necessarily made in the normal course of accessing the 17 SOURCE CODE on the SOURCE CODE computers. No outside electronic devices, including but 18 not limited to computers, laptops, tablets, storage devices (including but not limited to flash drives, 19 floppy drives, portable hard drives, and zip drives), cellular phones, portable printers, or devices 20 with camera functionalities shall be permitted in the same room as the SOURCE CODE computer. 21 22 The receiving Party’s outside counsel of record and/or experts and consultants authorized under this Joint Stipulated Protective Order to access the producing Party or Non-Party’s SOURCE 23 24 CODE shall be entitled to take notes on paper relating to the SOURCE CODE, but may not copy 25 verbatim lines of the source code into the notes. All such notes shall be bear the legend HIGHLY 26 CONFIDENTIAL—SOURCE CODE. 15 20214 00001 ha096z181x 1 11.7 SOURCE CODE Printouts. The receiving Party may request that the producing 2 Party or Non-Party produce a reasonable number of printouts of SOURCE CODE material, each 3 page of which shall be designated with an appropriate BATES stamp and clearly labeled 4 “HIGHLY CONFIDENTIAL—SOURCE CODE.” The producing Party or Non-Party shall 5 provide two (2) copies of such requested printouts to the receiving Party’s outside counsel of 6 record within ten (10) business days of receiving the receiving Party’s request. If the producing 7 Party or Non-Party believes that the amount of code in the aggregate which the receiving Party 8 wishes to have printed during the duration of this litigation becomes excessive or overly 9 10 burdensome, the producing Party or Non-Party must meet and confer with the receiving Party in 11 an effort to resolve the producing Party or Non-Party’s objection. If, after ten (10) business days, 12 the parties are unable to resolve the producing Party or Non-Party’s objection, the receiving 13 14 Party or Non-Party may seek relief from the Court. 11.8 Handling of Paper Copies of SOURCE CODE. The receiving Party may not place 15 16 printed copies of SOURCE CODE in the custody of other persons except for those designated 17 under Section 4.3 of this Stipulated Protective Order. Except as otherwise provided herein, the 18 receiving Party may not create, use, access or receive electronic images, photographic images, or 19 any other images, of the SOURCE CODE made from the paper copy; the paper copy may not be 20 converted into an electronic document; and the paper copy may not be scanned. 21 22 The receiving Party’s outside counsel of record shall maintain a log of all copies of the producing Party or Non-Party’s SOURCE CODE provided to any person. The log shall include the 23 24 name of any recipient or reviewer of the copy, and the date and page numbers provided. Provided, 25 however, that creating such log shall not be deemed to waive attorney-client privilege, work 26 product, or any other privilege or immunity that may attach to information contained in the log. 16 20214 00001 ha096z181x 1 Any paper copies of the producing Party or Non-Party’s SOURCE CODE shall be stored 2 or viewed by the receiving Party only at (a) the secure offices of outside counsel of record for the 3 receiving Party; (b) the secure site where any deposition is taken; (c) any intermediate secure 4 location necessary to transport the SOURCE CODE to a hearing, trial or deposition; (d) the secure 5 office of the receiving Party’s experts or consultants authorized to view such SOURCE CODE; or 6 (e) the location of any hearing or trial in this matter. 7 The receiving Party’s outside counsel of record and authorized experts and consultants 8 shall maintain and store paper copies of the producing Party or Non-Party’s SOURCE CODE in 9 10 their custody at their offices in a manner that prevents duplication of or unauthorized access to the 11 source code, by storing the source code in a secure, locked room, cabinet or container at all times 12 when it is not in use. 13 14 11.9 Transportation and Use of HIGHLY CONFIDENTIAL—SOURCE CODE. The receiving Party’s outside counsel of record and authorized experts and consultants may transfer 15 16 printouts of the producing Party or Non-Party’s SOURCE CODE only where necessary to a 17 hearing, trial, deposition, or any intermediate location reasonably necessary to transport the 18 printouts (e.g., a hotel prior to a Court proceeding or deposition). Only outside counsel of record 19 or authorized experts and consultants may transport the SOURCE CODE outside of their offices. 20 The SOURCE CODE must remain with the receiving Party’s outside counsel of record or 21 22 authorized experts and consultants during transport. Alternatively, the receiving Party may ship the producing Party or Non-Party’s SOURCE CODE by a recognized overnight courier service, 23 24 such as UPS or Federal Express, provided a tracking record is maintained by the receiving Party. 25 Except as expressly provided herein, the receiving Party may make no further hard copies of the 26 17 20214 00001 ha096z181x 1 producing Party or Non-Party’s SOURCE CODE, and such SOURCE CODE shall not be 2 transferred into any electronic format or onto any electronic media except that: 3 (a) For depositions, upon election by the receiving Party, it may make three 4 additional copies of the printed SOURCE CODE for use at depositions, and only such printed 5 copies may be used at the depositions and any hearing or trial in this litigation. Further, to the 6 extent that the receiving Party requests hard copy printouts of SOURCE CODE within ten (10) 7 days prior to the deposition, the receiving Party may request copies of such SOURCE CODE be 8 provided at the deposition by the producing Party or Non-Party. 9 10 (b) The receiving Party may include excerpts of SOURCE CODE in a pleading 11 exhibit, expert report, discovery document, deposition transcript, other document, or any drafts of 12 these documents (“SOURCE CODE DOCUMENTS”) only as is reasonably necessary and shall 13 14 include only such excerpts as are reasonably necessary for the purpose used. To the extent portions of SOURCE CODE are quoted in a SOURCE CODE DOCUMENT, either (i) the entire 15 16 document will be stamped HIGHLY CONFIDENTIAL—SOURCE CODE or (ii) those pages 17 containing quoted SOURCE CODE will be separately bound and stamped HIGHLY 18 CONFIDENTIAL—SOURCE CODE. 19 (c) Electronic copies of SOURCE CODE may only be made to be included in 20 documents which, pursuant to the Court’s rules, procedures, and order(s) may be filed or served 21 22 electronically. Only the necessary amount of electronic copies to effectuate such filing or service may be stored on any receiving Party’s server, hard drive, or other electronic storage device at 23 24 25 any given time. (d) The receiving Party shall provide notice at least ten (10) business days in 26 advance of any deposition to the producing Party or Non-Party if the receiving party wishes to 18 20214 00001 ha096z181x 1 use a searchable electronic copy of the SOURCE CODE during a deposition of an expert, 2 30(b)(6), or other fact witnesses who would otherwise be permitted access to such SOURCE 3 CODE. For purposes of this paragraph, the producing Party or Non-Party shall be required to make 4 only one searchable electronic copy of the SOURCE CODE available on a stand-alone computer 5 available at a location agreeable to the producing Party or Non-Party under this provision. 6 (e) Nothing in this Order shall be construed to limit how a producing Party or 7 Non-Party may maintain its own material designated as HIGHLY CONFIDENTIAL—SOURCE 8 CODE. 9 10 11.10 Nothing herein shall be deemed a waiver of any Party or Non-Party’s right to 11 object to the production of SOURCE CODE. 12 13 14 12. Submission of this Order shall not be a basis for an exercise of jurisdiction or venue by this Court over a party. Nothing in this Order, or the submission of this Order by the Parties, shall constitute a waiver of any objection and/or defense by a Party as to improper 15 16 17 18 service, jurisdiction and/or or venue. IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD: PACIFICA LAW GROUP LLP MILLER NASH GRAHAM & DUNN LLP s/ Kymberly K. Evanson Paul J. Lawrence, WSBA #13557 Kymberly K. Evanson, WSBA #39973 s/ Brian W. Esler Brian W. Esler, WSBA #22168 Kellen A. Hade, WSBA #44535 WALTERS WILSON LLP Erica D. Wilson (Admitted Pro Hac Vice) Eric S. Walters (Admitted Pro Hac Vice) Attorneys for Defendant SuperSonic Imagine, S.A. 19 20 21 22 23 24 Attorneys for Plaintiff Verasonics, Inc. 25 26 19 20214 00001 ha096z181x ORDER 1 2 PURSUANT TO STIPULATION, IT IS SO ORDERED. 3 IT IS FURTHER ORDERED that pursuant to Fed. R. Evid. 502(d), the production of any 4 documents in this proceeding shall not, for the purposes of this proceeding or any other 5 proceeding in any other court, constitute a waiver by the producing party of any privilege 6 applicable to those documents, including the attorney-client privilege, attorney work-product 7 protection, or any other privilege or protection recognized by law. 8 9 DATED this 12th day of January, 2018. 10 A 11 12 Thomas S. Zilly United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 20 20214 00001 ha096z181x 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, ____________________________________ [print or type full name], of 4 ____________________________________ [print or type full address], declare under penalty of 5 perjury that I have read in its entirety and understand the Stipulated Protective Order that was 6 issued by the United States District Court for the Western District of Washington on [date] in the 7 case of Verasonics, Inc. v. SuperSonic Imagine, S.A., No. 2:17-cv-1764-TSZ-MAT. I agree to 8 comply with and to be bound by all the terms of this Stipulated Protective Order and I 9 understand and acknowledge that failure to so comply could expose me to sanctions and 10 punishment in the nature of contempt. I solemnly promise that I will not disclose in any manner 11 any information or item that is subject to this Stipulated Protective Order to any person or entity 12 except in strict compliance with the provisions of this Order. 13 I further agree to submit to the jurisdiction of the United States District Court for the 14 Western District of Washington for the purpose of enforcing the terms of this Stipulated 15 Protective Order, even if such enforcement proceedings occur after termination of this action. 16 Date: 17 City and State where sworn and signed: 18 Printed name: 19 Signature: 20 21 22 23 24 25 26 21 20214 00001 ha096z181x

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