Apple, Inc. v. Motorola, Inc. et al

Filing 146

Joint Motion for Protective Order Apple Inc.'s and Non-Party Google Inc.'s Joint [Proposed] Addendum to the Protective Order by Plaintiff Apple, Inc.. (Ho, Jill)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

APPLE INC. and NEXT SOFTWARE,
INC. (f/k/a NeXT COMPUTER, INC.),
Plaintiffs and
Counterclaim-Defendants,
v.
MOTOROLA, INC. and MOTOROLA
MOBILITY, INC.,
Defendants and
Counterclaim-Plaintiffs.

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Case No. 10-CV-662 (BBC)

JOINT [PROPOSED] ADDENDUM TO THE PROTECTIVE ORDER

Pursuant to Federal Rules of Civil Procedure 26(c) and in order to facilitate
production and receipt of information from non-party Google Inc. ("Google") during discovery
in the above-referenced action, Plaintiffs and Counterclaim-Defendants Apple Inc. ("Apple") and
NeXT Software, Inc. ("NeXT") and Google hereby respectfully move for entry of the following
addendum to the Stipulated Protective Order, entered on February 1, 2011 (collectively referred
to herein as the “Protective Order”). Defendants and Counterclaim-Plaintiffs Motorola
Solutions, Inc. (f/k/a Motorola, Inc.) and Motorola Mobility, Inc. do not oppose this addendum.
NON-PARTY GOOGLE INC.
29.

The following additional protections shall apply to confidential source code

produced by non-party Google Inc.:

a.

The following provisions shall apply to individuals with access to the

confidential source code produced by non-party Google Inc.
i.
No more than a total of 20 individuals identified by the receiving
party shall have access to the secure room in which Google Inc. produces
material designated with the label “CONTAINS CONFIDENTIAL
BUSINESS INFORMATION INCLUDING HIGHLY CONFIDENTIAL
SOURCE CODE”
ii.
No more than a total of 30 individuals identified by the receiving
party shall have access to the printed portions of material produced by
Google Inc. designated with the label “CONTAINS CONFIDENTIAL
BUSINESS INFORMATION INCLUDING HIGHLY CONFIDENTIAL
SOURCE CODE” (except insofar as such code appears in any filing with
the Court or expert report in this case).
b.

The Source Code Computer provided by non-party Google shall run a

reasonably current version of Microsoft Windows.

Non-party Google shall not be obligated to

install any software that provides an alternate operating system environment within the Microsoft
Windows environment on its Source Code Computer.
c.

Non-party Google shall install commercially available software tools for

viewing and searching source code requested by the receiving party’s outside counsel and/or
experts on the Source Code Computer provided by non-party Google, provided, however, that
such other software tools are reasonably necessary for the receiving party to perform its review
of the source code consistent with the all of the protection herein.

Non-party Google shall not

be obligated to install requested print formatting software or file comparison tool software but
agrees to make reasonable accommodations (such as discarding unwanted pages) to account for
any printing errors.
d.

The receiving party may print only those portions of files that are necessary

to the preparation of its case.

In the event that the receiving party believes there is a need to

print more than ten (10) contiguous pages of a file, or more than a total of 100 printed pages of a

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file, the burden shall be on the receiving party to demonstrate that such printed portions are no
more than is reasonably necessary for a permitted purpose and not merely printed for the
purposes of review and analysis elsewhere.
e.

Prior to the first inspection of any material produced by Google Inc.

designated with the label “CONTAINS CONFIDENTIAL BUSINESS INFORMATION
INCLUDING HIGHLY CONFIDENTIAL SOURCE CODE,” the requesting party shall provide
ten (10) days notice.

The requesting party shall provide two (2) days notice prior to any

additional inspections of the same source code files, although Google Inc. will be reasonable in
accommodating requests of less than two (2) days. The receiving party shall identify any
individual who will be given access to the material produced by Google Inc. designated with the
label “CONTAINS CONFIDENTIAL BUSINESS INFORMATION INCLUDING HIGHLY
CONFIDENTIAL SOURCE CODE” at least ten (10) days prior to the first time any such
individual is given access to the source code files, after which time Google Inc. may object to
providing access to any persons so identified. The receiving party shall provide two (2) days
notice any time each such individual is given access to the material produced by Google Inc.
designated with the label “CONTAINS CONFIDENTIAL BUSINESS INFORMATION
INCLUDING HIGHLY CONFIDENTIAL SOURCE CODE” after the first time, although
Google Inc. will be reasonable in accommodating notice of less than two (2) days.
f.

The following provisions shall apply to independent expert witnesses and

consultants with access to confidential source code produced by non-party Google Inc.:
i.
Any independent expert witness or consultant who is approved by
Google Inc. shall not be given access to material produced by Google Inc.
designated with the label “CONTAINS CONFIDENTIAL BUSINESS
INFORMATION INCLUDING HIGHLY CONFIDENTIAL SOURCE
CODE” unless he or she shall have (a) complied with the terms of
paragraph 11 and pursuant to paragraph 29(c) above, and (b) agreed in

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writing not to write source code directly intended for commercial purposes
relating to the technical subject matter of the material produced by Google
Inc. designated with the label “CONTAINS CONFIDENTIAL
BUSINESS INFORMATION INCLUDING HIGHLY CONFIDENTIAL
SOURCE CODE” for a period of six (6) months after the issuance of a
final, non-appealable decision resolving all issues in this matter.
ii.
In addition to the prohibition on outside counsel involved in
competitive decision-making on behalf of a party accessing protected
materials in paragraph 10(b) of the Protective Order, no independent
expert witness or consultant shall have access to material produced by
Google Inc. designated with the label “CONTAINS CONFIDENTIAL
BUSINESS INFORMATION INCLUDING HIGHLY CONFIDENTIAL
SOURCE CODE” unless he or she is not involved in competitive-decision
making, as defined by U.S. Steel v. United States, 730 F.2d 1465, 1468
n.3 (Fed. Cir. 1984), on behalf of a party or a competitor of a party in the
technical subject matter of the confidential business information or
material produced by Google Inc. designated with the label “CONTAINS
CONFIDENTIAL BUSINESS INFORMATION INCLUDING HIGHLY
CONFIDENTIAL SOURCE CODE.”
g.

For depositions, the receiving party shall not bring copies of any printed

material produced by Google Inc. designated with the label “CONTAINS CONFIDENTIAL
BUSINESS INFORMATION INCLUDING HIGHLY CONFIDENTIAL SOURCE CODE.”
Rather, at least five (5) days before the date of the deposition, the receiving party shall notify
Google Inc. about the specific portions of material produced by Google Inc. designated with the
label “CONTAINS CONFIDENTIAL BUSINESS INFORMATION INCLUDING HIGHLY
CONFIDENTIAL SOURCE CODE” it wishes to use at the deposition, and Google Inc. shall
bring printed copies of those portions to the deposition for use by the receiving party. All paper
copies of material produced by Google Inc. designated with the label “CONTAINS
CONFIDENTIAL BUSINESS INFORMATION INCLUDING HIGHLY CONFIDENTIAL
SOURCE CODE” brought to the deposition shall be securely destroyed in a timely manner
following the deposition.

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30.

Notwithstanding Paragraph 1 of the Protective Order, Protected Materials

produced by non-party Google Inc. designated as “CONFIDENTIAL BUSINESS
INFORMATION SUBJECT TO PROTECTIVE ORDER” or “CONTAINS CONFIDENTIAL
BUSINESS INFORMATION INCLUDING HIGHLY CONFIDENTIAL SOURCE CODE” in
accordance with the provisions of paragraph 2 shall only be used in this matter and not in any
other matter.
Dated:

August 25, 2011

/s/ Jill J. Ho
James D. Peterson (# 1022819)
[e-mail]
One East Main Street, Suite 500
P.O. Box 2719
Madison, WI 53701-2719
Telephone: [phone]
Facsimile: [phone]
Jill J. Ho
[e-mail]
WEIL, GOTSHAL & MANGES LLP
201 Redwood Shores Parkway
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: [phone]
Mark G. Davis
[e-mail]
WEIL, GOTSHAL & MANGES LLP
1300 Eye Street, N.W., Suite 900
Washington, DC 20005
Telephone: [phone]
Facsimile: [phone]

Respectfully Submitted,
/s/ Matthew S. Warren
Amy H. Candido
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
50 California St. 22nd Floor
San Francisco, CA 94111
Telephone: [phone]
Facsimile: [phone]
Matthew S. Warren
[e-mail]
QUINN EMANUEL URQUHART &
SULLIVAN, LLP
865 S, Figueroa St. 10th Floor
Los Angeles, CA 90017
Telephone: [phone]
Facsimile: [phone]
Attorneys for Non-Party Google Inc.

Elizabeth Stotland Weiswasser
[e-mail]
WEIL, GOTSHAL & MANGES LLP
767 Fifth Avenue
New York, NY 10153
Telephone: [phone]
Facsimile: [phone]

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Matthew D. Powers
[e-mail]
Steven S. Cherensky
[e-mail]
TENSEGRITY LAW GROUP LLP
201 Redwood Shores Parkway, Suite 401
Redwood Shores, CA 94065
Telephone: [phone]
Facsimile: 650-802-6001
Robert T. Haslam
[e-mail]
COVINGTON & BURLING LLP
333 Twin Dolphin Drive, Suite 700
Redwood Shores, CA 94065-1418
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiffs Apple Inc.
and NeXT Software, Inc.

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CERTIFICATE OF SERVICE
I hereby certify that on August 25, 2011, I caused the foregoing document to be
electronically filed with the Clerk of Court using the ECF system, which will make this
document available to all counsel of record for viewing and downloading from the ECF system.
/s/ Jill J. Ho
Jill J. Ho

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