Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 1 of 22
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`
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`PAUL ANDRE (State Bar No. 196585)
`pandre@kramerlevin.com
`LISA KOBIALKA (State Bar No. 191404)
`lkobialka@kramerlevin.com
`JAMES HANNAH (State Bar No. 237978)
`jhannah@kramerlevin.com
`KRISTOPHER KASTENS (State Bar No. 254797)
`kkastens@kramerlevin.com
`KRAMER LEVIN NAFTALIS
` & FRANKEL LLP
`990 Marsh Road
`Menlo Park, CA 94025
`Telephone: (650) 752-1700
`Facsimile: (650) 752-1800
`
`Attorneys for Plaintiff
`FINJAN, INC.
`
`
`
`
`
`
`IRELL & MANELLA LLP
`Jonathan Kagan (166039)
`jkagan@irell.com
`Joshua Glucoft (301249)
`jglucoft@irell.com
`Casey Curran (305210)
`ccurran@irell.com
`1800 Avenue of the Stars, Suite 900
`Los Angeles, CA 90067
`Telephone: (650)752-1700
`Facsimile: (650)752-1800
`
`Rebecca Carson (254105)
`rcarson@irell.com
`Kevin Wang (318024)
`kwang@irell.com
`840 Newport Center Drive, Suite 400
`Newport Beach, CA 92660
`Telephone: (949)760-0991
`Facsimile: (949)760-5200
`
`Attorneys for Defendant
`JUNIPER NETWORKS, INC.
`
`
`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`FINJAN, INC.,
`
`
`
`
`
`
`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC.,
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`
`
`
`
`
`Defendant.
`
`
`Case No.: 3:17-cv-05659-WHA
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`STIPULATED [PROPOSED]
`PROTECTIVE ORDER [WITH
`COMPETING PROVISIONS]
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
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`CASE NO.: 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 2 of 22
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`1.
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`PURPOSES AND LIMITATIONS
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`Disclosure and discovery activity in this action are likely to involve production of confidential,
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`proprietary, or private information for which special protection from public disclosure and from use for
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`any purpose other than prosecuting this litigation may be warranted. This Order does not confer blanket
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`protections on all disclosures or responses to discovery and the protection it affords from public
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`disclosure and use extends only to the limited information or items that are entitled to confidential
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`treatment under the applicable legal principles. As set forth in Section 14.4 below, this Protective Order
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`does not entitle the Parties to file confidential information under seal; Civil Local Rule 79-5 sets forth
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`the procedures that must be followed and the standards that will be applied when a party seeks
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`permission from the court to file material under seal.
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`2.
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`DEFINITIONS
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`2.1
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`Challenging Party: a Party or Non-Party that challenges the designation of information or
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`items under this Order.
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`2.2
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`“CONFIDENTIAL” Information or Items: information (regardless of how it is generated,
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`stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure
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`26(c).
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`2.3
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`Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as
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`their support staff).
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`2.4
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`Designated House Counsel: House Counsel who seek access to “HIGHLY
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`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
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`produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS' EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE.”
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`2.6
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`Disclosure or Discovery Material: all items or information, regardless of the medium or
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`manner in which it is generated, stored, or maintained (including, among other things, testimony,
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`transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery
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`1
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
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`CASE NO.: 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 3 of 22
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`in this matter.
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`2.7
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`Expert: a person with specialized knowledge or experience in a matter pertinent to the
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`litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a
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`consultant in this action, (2) is not a past or current employee of a Party and (3) at the time of retention,
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`is not anticipated to become an employee of a Party or of a Party's competitor. These limitations do not
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`prevent Dr. Eric Cole from serving as an expert in this case based on the declaration he filed with the
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`Court on April 30, 2018 (Dkt. No. 76).
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`2.8
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items:
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`extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non-
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`Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.
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`If a Producing Party designates non-technical, purely financial or license information as “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the Receiving Party may challenge the non-
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`technical portions of that Information or Items as “CONFIDENTIAL” (defined in Section 2.2) under
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`Section 6 below.
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`2.9
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely
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`sensitive “Confidential Information or Items” representing computer code (code that is compiled or
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`interpreted) and associated comments and revision histories, disclosure of which to another Party or
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`Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive
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`means.
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`2.10 House Counsel: attorneys who are employees of a party to this action. House Counsel
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`does not include Outside Counsel of Record or any other outside counsel.
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`2.11 Non-Party: any natural person, partnership, corporation, association, or other legal entity
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`not named as a Party to this action.
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`2.12 Outside Counsel of Record: attorneys who are not employees of a party to this action but
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`are retained to represent or advise a party to this action and have appeared in this action on behalf of that
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`party or are affiliated with a law firm which has appeared on behalf of that party.
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`2.13 Party: any party to this action, including all of its officers, directors, employees,
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 4 of 22
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`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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`2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in
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`this action.
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`2.15 Professional Vendors: persons or entities that provide litigation support services (e.g.,
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`photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or
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`retrieving data in any form or medium) and their employees and subcontractors.
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`2.16 Protected Material: any Disclosure or Discovery Material that is designated as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE.”
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`2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing
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`Party.
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`3.
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`SCOPE
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`The protections conferred by this Order cover not only Protected Material (as defined above), but
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`also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts,
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`summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations
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`by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by
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`this Order do not cover the following information: (a) any information that is in the public domain at the
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`time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a
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`Receiving Party as a result of publication not involving a violation of this Order, including becoming
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`part of the public record through trial or otherwise; and (b) any information known to the Receiving
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`Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
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`obtained the information lawfully and under no obligation of confidentiality to the Designating Party.
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`Any use of Protected Material at trial shall be governed by a separate agreement or order.
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`4.
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`DURATION
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`Even after final disposition of this litigation, the confidentiality obligations imposed by this
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`Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
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`otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
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`3
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
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`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 5 of 22
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`defenses in this action, with or without prejudice; and (2) final judgment herein after the completion and
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`exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time limits
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`for filing any motions or applications for extension of time pursuant to applicable law.
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`5.
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`DESIGNATING PROTECTED MATERIAL
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`5.1
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`Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-
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`Party that designates information or items for protection under this Order must take care to limit any
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`such designation to specific material that qualifies under the appropriate standards. To the extent it is
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`practical to do so, the Designating Party must designate for protection only those parts of material,
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`documents, items, or oral or written communications that qualify – so that other portions of the material,
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`documents, items, or communications for which protection is not warranted are not swept unjustifiably
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`within the ambit of this Order.
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`If it comes to a Designating Party’s attention that information or items that it designated for
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`protection do not qualify for protection at all or do not qualify for the level of protection initially
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`asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the
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`mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see,
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`e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
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`Discovery Material that qualifies for protection under this Order must be clearly so designated before
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`the material is disclosed or produced.
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`Designation in conformity with this Order requires:
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`(a) for information in documentary form (e.g., paper or electronic documents, but excluding
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`transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” to each page that contains protected material. If only a portion or
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`portions of the material on a page qualifies for protection, the Producing Party also must clearly identify
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`the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
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`each portion, the level of protection being asserted.
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`4
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
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`CASE NO.: 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 6 of 22
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`A Party or Non-Party that makes original documents or materials available for inspection need
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`not designate them for protection until after the inspecting Party has indicated which material it would
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`like copied and produced. During the inspection and before the designation, all of the material made
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`available for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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`After the inspecting Party has identified the documents it wants copied and produced, the Producing
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`Party must determine which documents, or portions thereof, qualify for protection under this Order.
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`Then, before producing the specified documents, the Producing Party must affix the appropriate legend
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`(“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE”) to each page that contains Protected Material. If only a portion
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`or portions of the material on a page qualifies for protection, the Producing Party also must clearly
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`identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify,
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`for each portion, the level of protection being asserted.
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`(b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating
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`Party identify on the record, before the close of the deposition, hearing, or other proceeding, or within
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`21 days thereafter in a written notice to the other Party, all protected testimony and specify the level of
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`protection being asserted. Only those portions of the testimony that are appropriately designated for
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`protection within the 21 days shall be covered by the provisions of this Stipulated Protective Order.
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`Alternatively, a Designating Party may specify, at the deposition, hearing, or other proceeding, or up to
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`21 days afterwards in writing, that the entire transcript shall be treated as “CONFIDENTIAL” or
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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`During a deposition, when counsel deems that the answer to a question may result in the
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`disclosure of Protected Material of that counsel’s client, counsel may request that any persons present
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`who are not authorized pursuant to Section 7 leave the deposition during the confidential portion of the
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`deposition. The use of a document as an exhibit at a deposition shall not in any way affect its
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`designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE.”
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`Transcripts containing Protected Material shall have an obvious legend on the title page that the
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`5
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
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`CASE NO.: 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 7 of 22
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`transcript contains Protected Material, and the title page shall be followed by a list of all pages
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`(including line numbers as appropriate) that have been designated as Protected Material and the level of
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`protection being asserted by the Designating Party. The Designating Party shall inform the court reporter
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`of these requirements. Any transcript that is prepared before the expiration of a 21-day period for
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`designation shall be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that
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`period, the transcript shall be treated only as actually designated.
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`(c) for information produced in some form other than documentary and for any other tangible
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`items, that the Producing Party affix in a prominent place on the exterior of the container or containers
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`in which the information or item is stored the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a
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`portion or portions of the information or item warrant protection, the Producing Party, to the extent
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`practicable, shall identify the protected portion(s) and specify the level of protection being asserted.
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`5.3
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`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate
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`qualified information or items does not, standing alone, waive the Designating Party’s right to secure
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`protection under this Order for such material. Upon timely correction of a designation, the Receiving
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`Party must make reasonable efforts to assure that the material is treated in accordance with the
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`provisions of this Order.
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`6.1
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`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or
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`a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
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`confidentiality designation by electing not to mount a challenge promptly after the original designation
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`is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by
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`providing written notice of each designation it is challenging and describing the basis for each challenge.
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`6
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
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`CASE NO.: 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 8 of 22
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`To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the
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`challenge to confidentiality is being made in accordance with this specific paragraph of the Protective
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`Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by
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`conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within
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`14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for
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`its belief that the confidentiality designation was not proper and must give the Designating Party an
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`opportunity to review the designated material, to reconsider the circumstances, and, if no change in
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`designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed
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`to the next stage of the challenge process only if it has engaged in this meet and confer process first or
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`establishes that the Designating Party is unwilling to participate in the meet and confer process in a
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`timely manner.
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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without court intervention,
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`the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7
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`(and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of
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`challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their
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`dispute, whichever is earlier. Each such motion must be accompanied by a competent declaration
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`affirming that the movant has complied with the meet and confer requirements imposed in the preceding
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`paragraph. Failure by the Designating Party to make such a motion including the required declaration
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`within 21 days (or 14 days, if applicable) shall automatically waive the confidentiality designation for
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`each challenged designation. In addition, the Challenging Party may file a motion challenging a
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`confidentiality designation at any time if there is good cause for doing so, including a challenge to the
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`designation of a deposition transcript or any portions thereof. Any motion brought pursuant to this
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`provision must be accompanied by a competent declaration affirming that the movant has complied with
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`the meet and confer requirements imposed by the preceding paragraph.
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`The burden of persuasion in any such challenge proceeding shall be on the Designating Party.
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`Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary
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`expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the
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`7
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
`
`CASE NO.: 3:17-cv-05659-WHA
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`

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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 9 of 22
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`Designating Party has waived the confidentiality designation by failing to file a motion to retain
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`confidentiality as described above, all parties shall continue to afford the material in question the level
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`of protection to which it is entitled under the Producing Party’s designation until the court rules on the
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`challenge.
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`7.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`7.1
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`Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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`produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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`defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the
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`categories of persons and under the conditions described in this Order. When the litigation has been
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`terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL
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`DISPOSITION).
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`Protected Material must be stored and maintained by a Receiving Party at a location and in a
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`secure manner that ensures that access is limited to the persons authorized under this Order.
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`7.2
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`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the
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`court or permitted in writing by the Designating Party, a Receiving Party may disclose any information
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`or item designated “CONFIDENTIAL” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of
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`said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
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`litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached
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`hereto as Exhibit A;
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`(b) the officers, directors, and employees (including House Counsel) of the Receiving Party
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`to whom disclosure is reasonably necessary for this litigation and who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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`reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to
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`Be Bound” (Exhibit A);
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`(d) the court and its personnel;
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`8
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
`
`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 10 of 22
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`(e) court reporters and their staff, professional jury or trial consultants, and Professional
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`Vendors to whom disclosure is reasonably necessary for this litigation;
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`(f) during their depositions, witnesses in the action to whom disclosure is reasonably
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`necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
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`otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition
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`testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court
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`reporter and may not be disclosed to anyone except as permitted under this Protective Order.
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`(g) the author or recipient of a document containing the information or a custodian or other
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`person who otherwise possessed or knew the information.
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`7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” and
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless otherwise ordered by
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`the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of
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`said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
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`litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached
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`hereto as Exhibit A;
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`(b) Designated House Counsel of the Receiving Party (1) who has no involvement in
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`competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3) who
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`has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom the
`procedures set forth in paragraph 7.4(a)(1), below, have been followed;1
`(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this
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`litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3)
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`as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed;
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`1 This Order contemplates that Designated House Counsel shall not have access to any information or
`items designated “HIGHLY CONFIDENTIAL – SOURCE CODE.” or contains “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information of third parties.
`9
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
`
`CASE NO.: 3:17-cv-05659-WHA
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`

`

`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 11 of 22
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`(d) the court and its personnel;
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`(e) court reporters and their staff, professional jury or trial consultants, and Professional
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`Vendors to whom disclosure is reasonably necessary for this litigation; and
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`(f) the author or recipient of a document containing the information or a custodian or other
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`person who otherwise possessed or knew the information.
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`7.4
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`Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
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`Items to Designated House Counsel or Experts.
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`(a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating Party,
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`a Party that seeks to disclose to Designated House Counsel any information or item that has been
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`designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b)
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`first must make a written request to the Designating Party that (1) sets forth the full name of the
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`Designated House Counsel and the city and state of his or her residence and (2) describes the Designated
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`House Counsel’s current and reasonably foreseeable future primary job duties and responsibilities in
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`sufficient detail to determine if House Counsel is involved, or may become involved, in any competitive
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`decision-making.
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`(a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating Party,
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`a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has
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`been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c) first must make a written request to
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`the Designating Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information that
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`the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the Expert
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`and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s current resume,
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`(4) identifies the Expert’s current employer(s), (5) identifies each person or entity from whom the Expert
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`has received compensation or funding for work in his or her areas of expertise or to whom the expert has
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`provided professional services, including in connection with a litigation, at any time during the
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`10
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
`
`CASE NO.: 3:17-cv-05659-WHA
`
`

`

`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 12 of 22
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`
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`preceding five years,2 and (6) 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 testimony, including
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`through a declaration, report, or testimony at a deposition or trial, during the preceding five years.
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`(b) A Party that makes a request and provides the information specified in the preceding
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`respective paragraphs may disclose the subject Protected Material to the identified Designated House
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`Counsel or Expert unless, within 10 days of delivering the request, the Party receives a written objection
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`from the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
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`(c) A Party that receives a timely written objection must meet and confer with the
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`Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement
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`within seven days of the written objection. If no agreement is reached, the Party seeking to make the
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`disclosure to Designated House Counsel or the Expert may file a motion as provided in Civil Local Rule
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`7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to do
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`so. Any such motion must describe the circumstances with specificity, set forth in detail the reasons why
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`disclosure to Designated House Counsel or the Expert is reasonably necessary, assess the risk of harm
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`that the disclosure would entail, and suggest any additional means that could be used to reduce that risk.
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`In addition, any such motion must be accompanied by a competent declaration describing the parties’
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`efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and confer
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`discussions) and setting forth the reasons advanced by the Designating Party for its refusal to approve
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`the disclosure.
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`In any such proceeding, the Party opposing disclosure to Designated House Counsel or the
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`Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under the
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`safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its
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`Designated House Counsel or Expert.
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`2 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party,
`then the Expert should provide whatever information the Expert believes can be disclosed without
`violating any confidentiality agreements, and the Party seeking to disclose to the Expert shall be
`available to meet and confer with the Designating Party regarding any such engagement.
`11
`STIPULATED [PROPOSED] PROTECTIVE ORDER
`[WITH COMPETING PROVISIONS]
`
`CASE NO.: 3:17-cv-05659-WHA
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`Case 3:17-cv-05659-WHA Document 147 Filed 07/06/18 Page 13 of 22
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`8.
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`PROSECUTION BAR
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`Absent written consent from the Producing Party, any individual who receives access to
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” information shall not be involved in the prosecution of patents or patent applications
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`relating to systems and methods for protecting computers and computer networks from malicious
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`programs or code, including without limitation the patents asserted in this action and any patent or
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`application claiming priority to or otherwise related to the patents asserted in this action, before any
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`foreign or domestic agency, including the United States Patent and Trademark Office (“the Patent
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`Office”).
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`For purposes of this paragraph, “prosecution” includes directly or indirectly drafting,
`amending, advising, or otherwise affecting the scope or maintenance of patent claims.3 To avoid any
`doubt, “prosecution” as used in this paragraph does not include representing a party challenging a patent
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`before a domestic or foreign agency (including, but not limited to, a reissue protest, ex parte
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`reexamination or inter partes review). Furthermore, this section does not preclude an individual who
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`receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
`
`CONFIDENTIAL – SOURCE CO