Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 1 of 26
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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.
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
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`SAN FRANCISCO DIVISION
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`Case No. 3:17-cv-05659-WHA
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`STIPULATED [PROPOSED]
`PROTECTIVE ORDER [WITH
`COMPETING PROVISIONS]
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`
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`FINJAN, INC.
`
`Plaintiff,
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`v.
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`JUNIPER NETWORKS, INC.
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`Defendant.
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`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
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`

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`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 2 of 26
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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
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`confidential, proprietary, or private information for which special protection from public
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`disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
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`This Order does not confer blanket protections on all disclosures or responses to discovery and
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`the protection it affords from public disclosure and use extends only to the limited information or
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`items that are entitled to confidential treatment under the applicable legal principles. As set forth
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`in Section 14.4 below, this Protective Order does not entitle the Parties to file confidential
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`information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and
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`the standards that will be applied when a party seeks permission from the court to file material
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`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
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`information or items under this Order.
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`2.2
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`“CONFIDENTIAL” Information or Items: information (regardless of how it is
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`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
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`of Civil Procedure 26(c).
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`2.3
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`Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
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`well as 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
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`medium or manner in which it is generated, stored, or maintained (including, among other things,
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`testimony, transcripts, and tangible things), that are produced or generated in disclosures or
`1
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
`
`
`

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`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 3 of 26
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`
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`responses to discovery 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
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`the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or
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`as a consultant in this action, (2) is not a past or current employee of a Party [Juniper’s proposal
`as found in Patent Local Rule 2-2 Interim Model Protective Order1: or a Party’s
`competitor][Finjan’s proposal: (3) is not a current employee of a Party’s competitor or has not
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`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).
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`2
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
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`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 4 of 26
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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,
`is not anticipated to become an employee of a Party or of a Party's competitor.
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`2.8
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
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`Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
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`Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
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`less restrictive means. If a Producing Party designates non-technical, purely financial or license
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`information as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” the Receiving
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`Party may challenge the non-technical portions of that Information or Items as
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`“CONFIDENTIAL” (defined in Section 2.2) under Section 6 below.
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`
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`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). The Court has already addressed this issue with respect to Dr. Eric
`Cole in response to Finjan’s letter brief (Dkt. No. 49) and allowed Dr. Cole to serve as an expert
`despite working at McAfee eight years ago, so long as he agrees not to return to work for McAfee
`for five years. However, it is Finjan’s position that Juniper’s proposal to bar 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 Dr. Cole from participating
`in this case, 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. The cases Juniper relies on above are inapposite. In TVIIM, LLC v. McAfee,
`Inc., No. 13–cv–04545–VC (KAW), 2014 WL 2768641, at *2 (N.D. Cal. June 18, 2014) the
`Court disqualified an expert because he was a current employee of a competitor. And in Corley
`v. Google, Inc., No. 16-cv-00473-LHK (HRL), 2016 WL 3421402, at *2 (N.D. Cal. Jun. 22,
`2016) the plaintiff did not offer a reasonable 5-year compromise as Finjan does here, and the
`Court was unpersuaded by the plaintiff’s argument that it was not a competitor itself, and so was
`less-likely to misuse the information. Finjan makes no such argument, but rather its objection is
`based on unreasonable prejudice to Finjan of excluding its experts and the danger of precluding
`qualified experts from the field. Finally, the protective order in Finjan, Inc. v. Bitdefender Inc.,
`Case No. 4:17-cv-04790-HSG, Dkt. No. 65 at p. 1 (N.D. Cal. Mar. 5, 2018) was recently entered
`over Finjan’s objections, and it is at odds with numerous other cases, including those cited above.
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`3
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
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`

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`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 5 of 26
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`2.9
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:
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`extremely sensitive “Confidential Information or Items” representing computer code (code that is
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`compiled or interpreted) and associated comments and revision histories, disclosure of which to
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`another Party or Non-Party would create a substantial risk of serious harm that could not be
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`avoided by less restrictive means.
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`2.10 House Counsel: attorneys who are employees of a party to this action. House
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`Counsel 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
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`entity 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
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`action but are retained to represent or advise a party to this action and have appeared in this action
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`on behalf of that 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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`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
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`Material in this action.
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`2.15 Professional Vendors: persons or entities that provide litigation support services
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`(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
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`organizing, storing, or retrieving data in any form or medium) and their employees and
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`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
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`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a
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`Producing 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
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`above), but also (1) any information copied or extracted from Protected Material; (2) all copies,
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`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
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`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 6 of 26
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`excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations,
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`or presentations by Parties or their Counsel that might reveal Protected Material. However, the
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`protections conferred by this Order do not cover the following information: (a) any information
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`that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the
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`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.
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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
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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
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`5.1
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`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
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`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
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`for protection do not qualify for protection at all or do not qualify for the level of protection
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`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
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`

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`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
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`(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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`designated before 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
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`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
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`Party affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`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
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`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.
`6
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
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`

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`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 8 of 26
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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’
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`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
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`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,”
`7
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
`
`
`

`

`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 9 of 26
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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
`8
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
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`
`

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`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 10 of 26
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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
`9
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
`
`
`

`

`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 11 of 26
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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.
`10
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
`
`
`

`

`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 12 of 26
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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
`whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;3
`(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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`3 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.
`
`11
`STIPULATED [PROPOSED] PROTECTIVE ORDER CASE NO. 3:17-CV-05659-WHA
`[WITH COMPETING PROVISIONS]
`
`
`

`

`Case 3:17-cv-05659-WHA Document 74 Filed 04/25/18 Page 13 of 26
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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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`paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the
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`full name of the Designated House Counsel and the city and state of his or her residence and (2)
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`describes the Designated House Counsel’s current and reasonably foreseeable future primary job
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`duties and responsibilities in sufficient detail to determine if House Counsel is involved, or may
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`become involved, in any competitive decision