Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 1 of 24
`
`Exhibit B
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 2 of 24
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`Plaintiff,
`
`v.
`
`Defendant.
`
`Case No. C
`
`STIPULATED PROTECTIVE ORDER FOR
`LITIGATION INVOLVING PATENTS,
`HIGHLY SENSITIVE CONFIDENTIAL
`INFORMATION AND/OR TRADE SECRETS
`
`LYFT, INC.,
`
`Case No. 5:21-cv-04653-BLF
`
`Plaintiff,
`
`v.
`AGIS SOFTWARE DEVELOPMENT LLC,
`Defendant.
`
`1.
`
`PURPOSES AND LIMITATIONS
`
`STIPULATED PROTECTIVE ORDER
`
`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. Accordingly, the parties hereby stipulate to
`
`and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this
`
`Order does not confer blanket protections on all disclosures or responses to discovery and that the protection
`
`it affords from public disclosure and use extends only to the limited information or items that are entitled to
`
`confidential treatment under the applicable legal principles. The parties further acknowledge, as set forth in
`
`Section 14.4, below, that this Stipulated Protective Order does not entitle them 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.
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 3 of 24
`
`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
`
`[Optional: Designated House Counsel: House Counsel who seek access to “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.]
`
`2.52.4 Designating Party: a Party or Non-Party that designates information or items that it
`
`produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
`
`– ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE CODE”].”.
`
`2.65 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.
`
`2.76
`
`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 or of a Party’s competitor, and (3) at the time
`
`of retention, is not anticipated to become an employee of a Party or of a Party’s competitor.
`
`2.87
`
`“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.
`
`2.9
`
`[Optional: 8
`
`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:
`
`extremely sensitive “Confidential Information or Items” representing computer code and associated
`
`comments and revision histories, or formulas, engineering specifications, or schematics that define or
`
`otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure of which
`
`2
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 4 of 24
`
`to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
`
`less restrictive means.]
`
`less restrictive means.
`
`2.109 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.
`
`2.1110 Non-Party: any natural person, partnership, corporation, association, or other legal entity
`
`not named as a Party to this action.
`
`2.1211 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.
`
`2.1312 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).
`
`2.1413 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in
`
`this action.
`
`2.1514 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.
`
`2.1615 Protected Material: any Disclosure or Discovery Material that is designated as
`
`“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” [Optional:,” or
`
`as “HIGHLY CONFIDENTIAL – SOURCE CODE.”].”
`
`2.1716 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing
`
`Party.
`
`3.
`
`SCOPE
`The protections conferred by this Stipulation and 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 Stipulation and Order do not cover the following information: (a) any information that is in
`
`3
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 5 of 24
`
`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 violation of this Order, including
`
`becoming part of the public record through trial or otherwise; and (b) any information known to the
`
`Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source
`
`who obtained the information lawfully and under no obligation of confidentiality to the Designating Party.
`
`Any use of Protected Material at trial shall be governed by a separate agreement or order.
`
`4.
`
`DURATION
`
`Even after final disposition of this litigation, the confidentiality obligations imposed by this Order
`
`shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise
`
`directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this
`
`action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all
`
`appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any motions
`
`or applications for extension of time pursuant to applicable law.
`
`5.
`
`DESIGNATING PROTECTED MATERIAL
`
`5.1
`
`Exercise of Restraint and Care in Designating Material for Protection. Each Party 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. To the extent it is practical to
`
`do so, the Designating Party must designate for protection only those parts of material, documents, items, or
`
`oral or written communications that qualify – so that other portions of the material, documents, items, or
`
`communications for which protection is not warranted are not swept unjustifiably within the ambit of this
`
`Order.
`
`Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be
`
`clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or
`
`retard the case development process or to impose unnecessary expenses and burdens on other parties)
`
`expose the Designating Party to sanctions.
`
`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 withdrawing the mistaken designation.
`
`4
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 6 of 24
`
`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, Disclosure or Discovery
`
`Material that qualifies for protection under this Order must be clearly so 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” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: or
`
`“HIGHLY CONFIDENTIAL – SOURCE CODE”]” to each page that contains protected material. If only a
`
`portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly
`
`identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
`
`each portion, the level of protection being asserted.
`
`A Party or Non-Party that makes original documents or materials available for inspection need not
`
`designate them for protection until after the inspecting Party has indicated which material it would like
`
`copied and produced. During the inspection and before the designation, all of the material made available
`
`for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the
`
`inspecting Party has identified the documents it wants copied and produced, the Producing Party must
`
`determine which documents, or portions thereof, qualify for protection under this Order. Then, before
`
`producing the specified documents, the Producing Party must affix the appropriate legend
`
`(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: or
`
`“HIGHLY CONFIDENTIAL – SOURCE CODE])) to each page that contains Protected Material. If only a
`
`portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly
`
`identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for
`
`each portion, the level of protection being asserted.
`
`(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
`
`Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, all
`
`protected testimony and specify the level of protection being asserted. When it is impractical to identify
`
`separately each portion of testimony that is entitled to protection and it appears that substantial portions of
`
`5
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 7 of 24
`
`the testimony may qualify for protection, the Designating Party may invoke on the record (before the
`
`deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific
`
`portions of the testimony as to which protection is sought and to specify the level of protection being
`
`asserted. Only those portions of the testimony that are appropriately designated for protection within the 21
`
`days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating
`
`Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the
`
`entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY.”
`
`Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other
`
`proceeding to include Protected Material so that the other parties can ensure that only authorized individuals
`
`who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
`
`proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its designation
`
`as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
`
`Transcripts containing Protected Material shall have an obvious legend on the title page that the
`
`transcript contains Protected Material, and the title page shall be followed by a list of all pages (including
`
`line numbers as appropriate) that have been designated as Protected Material and the level of protection
`
`being asserted by the Designating Party. The Designating Party shall inform the court reporter of these
`
`requirements. Any transcript that is prepared before the 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 otherwise agreed. After the expiration of that period, the transcript shall
`
`be treated only as actually designated.
`
`(c) for information produced in some form other than documentary and for any other
`
`tangible items, that the Producing Party affix in a prominent place on the exterior of the container or
`
`containers in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE
`
`CODE”].”. If only a portion or portions of the information or item warrant protection, the Producing Party,
`
`to the extent practicable, shall identify the protected portion(s) and specify the level of protection being
`
`asserted.
`
`6
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 8 of 24
`
`5.3
`
`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate
`
`qualified information or items does not, standing alone, waive the Designating Party’s right to secure
`
`protection under this Order for such material. Upon timely correction of a designation, the Receiving Party
`
`must make reasonable efforts to assure that the material is treated in accordance with the provisions of this
`
`Order.
`
`6.
`
`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`6.1
`Timing of Challenges. Any Party or Non-Party may challenge a designation of
`
`confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation is
`
`necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant
`
`disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality
`
`designation by electing not to mount a challenge promptly after the original designation is disclosed.
`
`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by
`
`providing written notice of each designation it is challenging and describing the basis for each challenge. To
`
`avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to
`
`confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties
`
`shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in
`
`voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of
`
`service of notice. In conferring, the Challenging Party must explain the basis for its belief that the
`
`confidentiality designation was not proper and must give the Designating Party an opportunity to review the
`
`designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain
`
`the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge
`
`process only if it has engaged in this meet and confer process first or establishes that the Designating Party
`
`is unwilling to participate in the meet and confer process in a timely manner.
`
`6.3
`
`Judicial Intervention. If the Parties cannot resolve a challenge without court intervention,
`
`the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in
`
`compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or
`
`within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute,
`
`7
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 9 of 24
`
`whichever is earlier.1 Each such motion must be accompanied by a competent declaration affirming that the
`
`movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure by
`
`the Designating Party to make such a motion including the required declaration within 21 days (or 14 days,
`
`if applicable) shall automatically waive the confidentiality designation for each challenged designation. In
`
`addition, the Challenging Party may file a motion challenging a confidentiality designation at any time if
`
`there is good cause for doing so, including a challenge to the designation of a deposition transcript or any
`
`portions thereof. Any motion brought pursuant to this provision must be accompanied by a competent
`
`declaration affirming that the movant has complied with the meet and confer requirements imposed by the
`
`preceding paragraphFailing agreement, the Challenging Party may bring a motion to the Court for a ruling
`
`that the Disclosure or Discovery Material in question is not entitled to the status and protection of the
`
`Designating Party's designation. The Parties' entry into this Order shall not preclude or prejudice either Party
`
`from arguing for or against any designation, establish any presumption that a particular designation is valid,
`
`or alter the burden of proof that would otherwise apply in a dispute over Disclosure or Discovery Material.
`
`Notwithstanding any challenge to a designation, the Disclosure or Discovery Material in question shall
`
`continue to be treated as designated under this Order until one of the following occurs: (a) the Designating
`
`Party withdraws such designation in writing; or (b) the Court rules that the Disclosure or Discovery Material
`
`in question is not entitled to the designation.
`
`The burden of persuasion in any such challenge proceeding shall be on the Designating Party.
`
`Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary
`
`expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the
`
`Designating Party has waived the confidentiality designation by failing to file a motion to retain
`
`confidentiality as described above, all parties shall continue to afford the material in question the level of
`
`protection to which it is entitled under the Producing Party’s designation until the court rules on the
`
`challenge.
`
`1 Alternative: It may be appropriate in certain circumstances for the parties to agree to shift the burden to move on the Challenging
`Party after a certain number of challenges are made to avoid an abuse of the process. The burden of persuasion would remain on the
`Designating Party.
`
`8
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 10 of 24
`
`7.
`
`ACCESS TO AND USE OF PROTECTED MATERIAL
`7.1
`Basic Principles. A Receiving Party may use Protected Material that is disclosed or
`
`produced by another Party or by a Non-Party in connection with this case only for prosecuting, defending,
`
`or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of
`
`persons and under the conditions described in this Order. When the litigation has been terminated, a
`
`Receiving Party must comply with the provisions of section 15 below (FINAL DISPOSITION).
`
`Protected Material must be stored and maintained by a Receiving Party at a location and in a secure
`
`manner2 that ensures that access is limited to the persons authorized under this Order.
`
`7.2
`
`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the
`
`court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or
`
`item designated “CONFIDENTIAL” only to:
`
`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of
`
`said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
`
`litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto
`
`as Exhibit A;
`
`(b) the officers, directors, and employees (including House Counsel) of the Receiving Party
`
`to whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
`
`and Agreement to Be Bound” (Exhibit A);
`
`(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
`
`reasonably necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be
`
`Bound” (Exhibit A);
`
`(d) the court and its personnel;
`
`(e) court reporters and their staff, professional jury or trial consultants, and Professional
`
`Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the
`
`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
`
`(f) during their depositions, witnesses in the action to whom disclosure is reasonably
`
`2 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in
`password-protected form.
`
`9
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 11 of 24
`
`necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
`
`otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition
`
`testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court
`
`reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order.
`
`(g) the author or recipient of a document containing the information or a custodian or other
`
`person who otherwise possessed or knew the information.
`
`7.3
`
`Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional:
`
`and “HIGHLY CONFIDENTIAL – SOURCE CODE”] Information or Items. Unless otherwise ordered by
`
`the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information
`
`or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY
`
`CONFIDENTIAL – SOURCE CODE”]” only to:
`
`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of
`
`said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
`
`litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto
`
`as Exhibit A;
`
`[(b) Optional as deemed appropriate in case-specific circumstances: Designated House Counsel of
`
`the Receiving Party3 (1) who has no involvement in competitive decision-making, (2) to whom disclosure is
`
`reasonably necessary for this litigation, (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];4
`
`(c(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this
`
`litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as
`
`to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed];;
`
`3 It may be appropriate under certain circumstances to limit the number of Designated House Counsel who may access “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information under this provision.
`4 This Order contemplates that Designated House Counsel shall not have access to any information or items designated “HIGHLY
`CONFIDENTIAL – SOURCE CODE.” It may also be appropriate under certain circumstances to limit how Designated House
`Counsel may access “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information. For example, Designated House
`Counsel may be limited to viewing “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information only if it is filed with
`the court under seal, or in the presence of Outside Counsel of Record at their offices.
`
`10
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 12 of 24
`
`(dc) the court and its personnel;
`
`(ed) court reporters and their staff, professional jury or trial consultants,5 and Professional
`
`Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the
`
`“Acknowledgment and Agreement to Be Bound” (Exhibit A); and
`
`(fe) the author or recipient of a document containing the information or a custodian or other
`
`person who otherwise possessed or knew the information.
`
`7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE CODE”]”
`
`Information or Items to Designated House Counsel6 or Experts.7
`
`(a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a
`
`Party that seeks to disclose to Designated House Counsel any information or item that has been designated
`
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make
`
`a written request to the Designating Party that (1) sets forth the full name of the Designated House Counsel
`
`and the city and state of his or her residence, and (2) describes the Designated House Counsel’s current and
`
`reasonably foreseeable future primary job duties and responsibilities in sufficient detail to determine if
`
`House Counsel is involved, or may become involved, in any competitive decision-making.8
`
`(a)(2(a) Unless otherwise ordered by the court or agreed to in writing by the Designating
`
`Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has
`
`been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY
`
`CONFIDENTIAL – SOURCE CODE”]” pursuant to paragraph 7.3(cb) first must make a written request to
`
`the Designating Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL –
`
`5 Alternative: The parties may wish to allow disclosure of information not only to professional jury or trial consultants, but also to
`mock jurors, to further trial preparation. In that situation, the parties may wish to draft a simplified, precisely tailored Undertaking for
`mock jurors to sign.
`6 Alternative: The parties may exchange names of a certain number of Designated House Counsel instead of following this procedure.
`7 Alternative: “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information or items may be
`disclosed to an Expert without disclosure of the identity of the Expert as long as the Expert is not a current officer, director, or employee
`of a competitor of a Party or anticipated to become one.
`8 It may be appropriate in certain circumstances to require any Designated House Counsel who receives “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY” information pursuant to this Order to disclose any relevant changes in job duties or responsibilities
`prior to final disposition of the litigation to allow the Designating Party to evaluate any later-arising competitive decision-making
`responsibilities.
`
`11
`
`12
`
`
`3
`4
`5
`6
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`10
`25
`26
`11
`27
`28
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`1 2 3 4 5 6 7 8 9
`
`Northern District of California
`United States District Court
`
`

`

`Case 5:21-cv-04653-BLF Document 115-2 Filed 04/28/22 Page 13 of 24
`
`ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE CODE”]”
`
`information that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name
`
`of the Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s
`
`current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person or entity from
`
`whom the Expert has received compensation or funding for work in his or her areas of expertise or to whom
`
`the expert has provided professional services, including in connection with a litigation, at any time during
`
`the preceding five years,9 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 through a
`
`declaration, report, or testimony at a deposition or trial, during the preceding five years.10
`
`(b) A Party that makes a request and provides the information specified in the preceding
`
`respective paragraphs may disclose the subject Protected Material to the identified Designated House
`
`Counsel or Expert unless, within 14 days of delivering the request, the Party receives a written objection
`
`from the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
`
`(c) A Party that receives a timely written objection must meet and confer with the
`
`Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within
`
`seven days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to
`
`Designated House Counsel or the Expert