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`Case 3:17-cv-05659-WHA Document 55-1 Filed 04/13/18 Page 1 of 25
`
`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
`AUSTIN MANES (State Bar No. 284065)
`amanes@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.
`
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`SAN FRANCISCO DIVISION
`
`
`FINJAN, INC.
`
`Plaintiff,
`
`v.
`
`JUNIPER NETWORKS, INC.
`
`Defendant.
`
`
`
`
`Case No. 3:17-cv-05659-WHA
`
`STIPULATED [PROPOSED]
`PROTECTIVE ORDER [WITH
`COMPETING PROVISIONS]
`
`
`
`1.
`
`PURPOSES AND LIMITATIONS
`
`Disclosure and discovery activity in this action are likely to involve production of
`
`confidential, proprietary, or private information for which special protection from public
`
`disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
`
`This Order does not confer blanket protections on all disclosures or responses to discovery and
`
`the protection it affords from public disclosure and use extends only to the limited information or
`
`KL3 3160020.2
`KL3 3160020.3
`
`
`
`
`Case 3:17-cv-05659-WHA Document 55-1 Filed 04/13/18 Page 2 of 25
`
`
`
`items that are entitled to confidential treatment under the applicable legal principles. As set forth
`
`in Section 14.4 below, this Protective Order does not entitle the Parties to file confidential
`
`information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and
`
`the standards that will be applied when a party seeks permission from the court to file material
`
`under seal.
`
`2.
`
`DEFINITIONS
`
`2.1
`
`Challenging Party: a Party or Non-Party that challenges the designation of
`
`information or items under this Order.
`
`2.2
`
`“CONFIDENTIAL” Information or Items: information (regardless of how it is
`
`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
`
`of Civil Procedure 26(c).
`
`2.3
`
`Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
`
`well as their support staff).
`
`2.4
`
`Designated House Counsel: House Counsel who seek access to “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS‟ EYES ONLY” information in this matter.
`
`2.5
`
`Designating Party: a Party or Non-Party that designates information or items that it
`
`produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS' EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
`
`CODE.”
`
`2.6
`
`Disclosure or Discovery Material: all items or information, regardless of the
`
`medium or manner in which it is generated, stored, or maintained (including, among other things,
`
`testimony, transcripts, and tangible things), that are produced or generated in disclosures or
`
`responses to discovery in this matter.
`
`2.7
`
`Expert: a person with specialized knowledge or experience in a matter pertinent to
`
`the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or
`
`as a consultant in this action, (2) is not a past or current employee of a Party [Juniper’s proposal
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`Case 3:17-cv-05659-WHA Document 55-1 Filed 04/13/18 Page 3 of 25
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`
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`as found in Patent Local Rule 2-2 Interim Model Protective Order1: or a Party‟s
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`competitor][Finjan’s proposal: (3) is not a current employee of a Party‟s competitor or has not
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`been an employee of a Party‟s competitor for at least five years],2 and (4) 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.
`
`
`
` 1
`
` Juniper proposes following the default Model Protective Order because Courts in this District
`have already considered Finjan‟s arguments and determined that “Former employees of a party or
`competitor shall not serve as experts.” Finjan, Inc. v. Bitdefender Inc., Case No. 4:17-cv-04790-
`HSG, Dkt. No. 65 at p. 1 (N.D. Cal. Mar. 5, 2018); see also Corley v. Google, Inc., 2016 WL
`3421402, at *2 (N.D. Cal. Jun. 22, 2016) (finding “it would create an unnecessary risk of competitive
`harm if the court permitted Plaintiffs to hire the former employees of Google's competitors as
`experts”); TVIIM, LLC v. McAfee, Inc., 2014 WL 2768641, at *2 (N.D. Cal. June 18, 2014) (“This
`district clearly requires that an „expert‟ under the Protective Order may not be „a past or current
`employee of a Party or of a Party's competitor….‟”). The substantial risk of potential disclosure by
`individuals with relationships with party competitors is why the Model Protective Order includes
`such a prohibition by default, and Finjan as “the party requesting to deviate from the Interim
`Model Protective Order bears the burden of showing the specific harm and prejudice that will
`result if its request is not granted.” Verinata Health, Inc. v. Ariosa Diagnostics, Inc., No. C 12-
`05501 SI, 2013 WL 5663434, at *1 (N.D. Cal. Oct. 17, 2013); see also Dynetix Design Solutions,
`Inc. v. Synopsys, Inc., No. C-11-05973 PSG, 2012 WL 1232105, at *2 (N.D. Cal. April 12, 2012).
`Juniper‟s position with regard to Dr. Cole will be set forth in full in its forthcoming opposition to
`Finjan‟s letter brief on the issue (see Dkt. Nos. 49 and 50). To be sure, however, any alleged
`burden to Finjan in excluding Dr. Cole from reviewing Juniper‟s confidential documents and
`source code is belied by the fact that Finjan has already disclosed, and Juniper has not objected to,
`three other experts, one of which has already reviewed Juniper‟s confidential source code.
`Moreover, Finjan‟s contention that Dr. Cole could not participate in the case is unfounded, as he
`can still serve as an expert on issues that do not require access to Juniper‟s confidential
`documents and source code, such and invalidity or marking.
`2 Finjan’s proposal of a 5-year limitation on past employees of a competitor is reasonable and
`supported by multiple Courts in this District, including, e.g. Finjan v. SonicWall, No. 17-cv-
`04467-BLF, Dkt. No. 68 at *3 (N.D. Cal. 2018); Finjan v. Cisco, No. 15-cv-00072-BLF, Dkt. No.
`97 at *2 (N.D. Cal. 2018). Barring any former employee of any competitor from becoming an
`expert in this case, without regard to time, is unreasonable. Juniper admitted during meet and
`confers on this topic that most experts in this field have worked for at least one competitor at
`some point in their careers. This Court has noted the risk of preempting qualified experts with
`industry experience from the field. See Life Tech. Corp. v. Biosearch Techs., Inc., No. 12–00852-
`WHA (JCS), 2012 WL 1604710, at *9 (N.D. Cal. May 7, 2012) (noting: “this concern is
`especially important in high-technology patent infringement cases”). This Court has also noted
`the risk of using this provision in the model order to preclude experts for illegitimate purposes.
`Hewlett-Packard Co. v. EMC Corp., 330 F. Supp. 2d 1087, 1092, 1095 (N.D. Cal. Aug. 10,
`2004)) (noting parties “might be tempted to create a purported conflict for the sole purpose of
`preventing their adversaries from hiring particular experts”). Juniper is attempting to use its
`proposal to try and preclude Finjan from using its expert, Dr. Eric Cole, from participating in this
`case merely because he worked for McAfee for one year nearly a decade ago. This is despite the
`fact that Dr. Cole, a holder of multiple top-secret security clearances and an advisor to President
`Obama, has proven trustworthiness and is bound by the confidentiality terms of Exhibit A to the
`protective order, and disqualifying Dr. Cole would work substantial prejudice to Finjan. Finjan
`filed a letter brief asking the Court to overrule Juniper‟s objections to Dr. Cole serving as an
`expert on April 9, 2018 at Dkt. No. 49.
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`Case 3:17-cv-05659-WHA Document 55-1 Filed 04/13/18 Page 4 of 25
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`
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`2.8
`
`“HIGHLY CONFIDENTIAL – ATTORNEYS‟ EYES ONLY” Information or
`
`Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
`
`Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
`
`less restrictive means. If a Producing Party designates non-technical, purely financial or license
`
`information as “HIGHLY CONFIDENTIAL – ATTORNEYS‟ EYES ONLY” the Receiving
`
`Party may challenge the non-technical portions of that Information or Items as
`
`“CONFIDENTIAL” (defined in Section 2.2) under Section 6 below.
`
`2.9
`
`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:
`
`extremely sensitive “Confidential Information or Items” representing computer code (code that is
`
`compiled or interpreted) and associated comments and revision histories, [Juniper’s proposal as
`
`found in Patent Local Rule 2-2 Interim Model Protective Order: formulas, engineering
`
`specifications, or schematics that define or otherwise describe in detail the algorithms or structure
`
`of software or hardware designs,]34 disclosure of which to another Party or Non-Party would
`
`create a substantial risk of serious harm that could not be avoided by less restrictive means.
`
`
` 3
`
` Juniper proposes following the default Model Protective Order and Finjan as “the party
`requesting to deviate from the Interim Model Protective Order bears the burden of showing the
`specific harm and prejudice that will result if its request is not granted.” Verinata Health, Inc. v.
`Ariosa Diagnostics, Inc., No. C 12-05501 SI, 2013 WL 5663434, at *1 (N.D. Cal. Oct. 17, 2013);
`see also Dynetix Design Solutions, Inc. v. Synopsys, Inc., No. C-11-05973 PSG, 2012 WL
`1232105, at *2 (N.D. Cal. April 12, 2012). Finjan‟s proposal deviates from the Model Protective
`Order because of an unsupported and vague allegation about the potential for “abuse” without
`providing any concrete examples or explanation of potential prejudice other than slight logistical
`inconvenience to Finjan. Finjan‟s complaint about printing limits is also unfounded; Finjan has
`not identified a single page of source code or technical documentation that it must print, and the
`parties have stipulated under Section 9(e) below to a procedure by which Finjan can exceed the
`default 750-page printing limit if necessary.
`
`4 Finjan’s Position: Finjan‟s proposal should be adopted because the definition of source code
`will impede the production of technical documents which do not contain any source code, but
`merely describe the operation of the products. Allowing such technical documents to be
`produced only on a stand-alone computer would severely prejudice Finjan given the accelerated
`nature of this case. Source code should be restricted to actual source code (code that is compiled
`or interpreted) and material that is typically included in the source code, such as comments or
`revision histories. Allowing for formulas, engineering specifications, or schematics is ripe for
`abuse, as these terms are not well defined and could allow standard development documents to be
`designated as source code, which could severely restrict the ease of accessing material that is
`routinely produced in patent cases involving software and regarding the design and development
`of the accused products. Furthermore, as design documents can be lengthy, this could potentially
`require additional pages of source code to be print in addition to the 750 pages currently agreed
`upon between the parties.
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`2.10 House Counsel: attorneys who are employees of a party to this action. House
`
`Counsel does not include Outside Counsel of Record or any other outside counsel.
`
`2.11 Non-Party: any natural person, partnership, corporation, association, or other legal
`
`entity not named as a Party to this action.
`
`2.12 Outside Counsel of Record: attorneys who are not employees of a party to this
`
`action but are retained to represent or advise a party to this action and have appeared in this action
`
`on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
`
`2.13 Party: any party to this action, including all of its officers, directors, employees,
`
`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
`
`2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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`Material in this action.
`
`2.15 Professional Vendors: persons or entities that provide litigation support services
`
`(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
`
`organizing, storing, or retrieving data in any form or medium) and their employees and
`
`subcontractors.
`
`2.16 Protected Material: any Disclosure or Discovery Material that is designated as
`
`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS‟ EYES ONLY,” or
`
`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
`
`2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a
`
`Producing Party.
`
`3.
`
`SCOPE
`
`The protections conferred by this Order cover not only Protected Material (as defined
`
`above), but also (1) any information copied or extracted from Protected Material; (2) all copies,
`
`excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations,
`
`or presentations by Parties or their Counsel that might reveal Protected Material. However, the
`
`protections conferred by this Order do not cover the following information: (a) any information
`
`that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the
`
`public domain after its disclosure to a Receiving Party as a result of publication not involving a
`
`
`
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`violation of this Order, including becoming part of the public record through trial or otherwise;
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`and (b) any information known to the Receiving Party prior to the disclosure or obtained by the
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`Receiving Party after the disclosure from a source who obtained the information lawfully and
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`under no obligation of confidentiality to the Designating Party. Any use of Protected Material at
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`trial shall be governed by a separate agreement or order.
`
`4.
`
`DURATION
`
`Even after final disposition of this litigation, the confidentiality obligations imposed by
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`this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
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`order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
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`claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
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`the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
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`including the time limits for filing any motions or applications for extension of time pursuant to
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`applicable law.
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`5.
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`DESIGNATING PROTECTED MATERIAL
`
`5.1
`
`Exercise of Restraint and Care in Designating Material for Protection. Each Party
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`or Non-Party that designates information or items for protection under this Order must take care
`
`to limit any such designation to specific material that qualifies under the appropriate standards.
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`To the extent it is practical to do so, the Designating Party must designate for protection only
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`those parts of material, documents, items, or oral or written communications that qualify – so that
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`other portions of the material, documents, items, or communications for which protection is not
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`warranted are not swept unjustifiably 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 protection do not qualify for protection at all or do not qualify for the level of protection
`
`initially asserted, that Designating Party must promptly notify all other Parties that it is
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`withdrawing the mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
`
`(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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`Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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`Case 3:17-cv-05659-WHA Document 55-1 Filed 04/13/18 Page 7 of 25
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`designated before the material is disclosed or produced.
`
`Designation in conformity with this Order requires:
`
`(a) for information in documentary form (e.g., paper or electronic documents, but
`
`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
`
`Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS‟
`
`EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains
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`protected material. If only a portion or portions of the material on a page qualifies for protection,
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`the Producing Party also must clearly identify the protected portion(s) (e.g., by making
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`appropriate markings in the margins) and must specify, for each portion, the level of protection
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`being asserted.
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`A Party or Non-Party that makes original documents or materials available for inspection
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`need not designate them for protection until after the inspecting Party has indicated which
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`material it would like copied and produced. During the inspection and before the designation, all
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`of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
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`ATTORNEYS‟ EYES ONLY.” After the inspecting Party has identified the documents it wants
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`copied and produced, the Producing Party must determine which documents, or portions thereof,
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`qualify for protection under this Order. Then, before producing the specified documents, the
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`Producing Party must affix the appropriate legend (“CONFIDENTIAL,” “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS‟ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE”) to each page that contains Protected Material. If only a portion or portions of the
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`material on a page qualifies for protection, the Producing Party also must clearly identify the
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`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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`(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
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`Designating Party identify on the record, before the close of the deposition, hearing, or other
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`proceeding, or within 21 days thereafter in a written notice to the other Party, all protected
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`testimony and specify the level of protection being asserted. Only those portions of the testimony
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`that are appropriately designated for protection within the 21 days shall be covered by the
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`provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at
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`the deposition, hearing, or other proceeding, or up to 21 days afterwards in writing, that the entire
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`transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`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
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`present who are not authorized pursuant to Section 7 leave the deposition during the confidential
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`portion of the deposition. The use of a document as an exhibit at a deposition shall not in any way
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`affect its designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS‟
`
`EYES ONLY,” or “HIGHLY CONFIDENTIAL – ATTORNEYS‟ EYES ONLY – SOURCE
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`CODE.”
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`Transcripts containing Protected Material shall have an obvious legend on the title page
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`that the transcript contains Protected Material, and the title page shall be followed by a list of all
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`pages (including line numbers as appropriate) that have been designated as Protected Material and
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`the level of protection being asserted by the Designating Party. The Designating Party shall
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`inform the court reporter of these requirements. Any transcript that is prepared before the
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`expiration of a 21-day period for designation shall be treated during that period as if it had been
`
`designated “HIGHLY CONFIDENTIAL – ATTORNEYS‟ EYES ONLY” in its entirety unless
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`otherwise agreed. After the expiration of that period, the transcript shall be treated only as
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`actually designated.
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`(c) for information produced in some form other than documentary and for any other
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`tangible items, that the Producing Party affix in a prominent place on the exterior of the container
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`or containers in which the information or item is stored the legend “CONFIDENTIAL,”
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`“HIGHLY CONFIDENTIAL – ATTORNEYS‟ EYES ONLY,” or “HIGHLY CONFIDENTIAL
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`– SOURCE CODE.” If only a portion or portions of the information or item warrant protection,
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`the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify
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`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
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`designate qualified information or items does not, standing alone, waive the Designating Party‟s
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`right to secure protection under this Order for such material. Upon timely correction of a
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`designation, the Receiving Party must make reasonable efforts to assure that the material is
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`treated in accordance with the 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
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`burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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`challenge a confidentiality designation by electing not to mount a challenge promptly after the
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`original designation is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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`process by providing written notice of each designation it is challenging and describing the basis
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`for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
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`notice must recite that the challenge to confidentiality is being made in accordance with this
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`specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
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`good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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`forms of communication are not sufficient) within 14 days of the date of service of notice. In
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`conferring, the Challenging Party must explain the basis for its belief that the confidentiality
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`designation was not proper and must give the Designating Party an opportunity to review the
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`designated material, to reconsider the circumstances, and, if no change in designation is offered,
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`to explain the basis for the chosen designation. A Challenging Party may proceed to the next
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`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
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`a timely manner.
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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without court
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`intervention, the Designating Party shall file and serve a motion to retain confidentiality under
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`Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days
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`of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
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`process will not resolve their dispute, whichever is earlier. Each such motion must be
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`accompanied by a competent declaration affirming that the movant has complied with the meet
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`and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
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`make such a motion including the required declaration within 21 days (or 14 days, if applicable)
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`shall automatically waive the confidentiality designation for each challenged designation. In
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`addition, the Challenging Party may file a motion challenging a confidentiality designation at any
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`time if there is good cause for doing so, including a challenge to the designation of a deposition
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`transcript or any portions thereof. Any motion brought pursuant to this provision must be
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`accompanied by a competent declaration affirming that the movant has complied with the meet
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`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
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`Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
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`unnecessary expenses and burdens on other parties) may expose the Challenging Party to
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`sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
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`file a motion to retain confidentiality as described above, all parties shall continue to afford the
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`material in question the level of protection to which it is entitled under the Producing Party‟s
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`designation until the court rules on the 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
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`the categories of persons and under the conditions described in this Order. When the litigation has
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`been 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
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`in a 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
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`by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information 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
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation and who have signed the “Acknowledgment and Agreement to Be
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`Bound” that is attached hereto as Exhibit A;
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`(b) the officers, directors, and employees (including House Counsel) of the Receiving
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`Party 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
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`Agreement to Be Bound” (Exhibit A);
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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
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`Professional 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),
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`unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
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`deposition testimony or exhibits to depositions that reveal Protected Material must be separately
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`bound by the court reporter and may not be disclosed to anyone except as permitted under this
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`Protective Order.
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`(g) the author or recipient of a document containing the information or a custodian or
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`other 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
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`ordered by the court or permitted in writing by the Designating Party, a Receiving Party may
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`disclose any information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS‟
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`EYES ONLY” or “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
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation and who have signed the “Acknowledgment and Agreement to Be
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`Bound” that is attached 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,
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`(3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to
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`whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;5
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`(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for
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`this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
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`A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been
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`followed;
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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
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`Professional 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
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`other person who otherwise possessed or knew the information.
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`7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL
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`– ATTORNEYS‟ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
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`Information or 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
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`Party, a Party that seeks to disclose to Designated House Counsel any information or item that has
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`been designated “HIGHLY CONFIDENTIAL – ATTORNEYS‟ EYES ONLY” pursuant to
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`paragr