`
`Sarah G. Hartman (Cal. Bar No. 281751)
`shartman@brownrudnick.com
`Alfred R. Fabricant (pro hac vice)
`afabricant@brownrudnick.com
`Peter Lambrianakos (pro hac vice)
`plambrianakos@brownrudnick.com
`Vincent J. Rubino, III (pro hac vice)
`vrubino@brownrudnick.com
`Brown Rudnick LLP
`7 Times Square
`New York, NY 10036
`Telephone: (212) 209-4800
`Facsimile: (212) 209-4801
`
`Arjun Sivakumar (Cal. Bar No. 297787)
`asivakumar@brownrudnick.com
`Brown Rudnick LLP
`2211 Michelson Drive, Seventh Floor
`Irvine, California 92612
`Telephone: (949) 752-7100
`Facsimile: (949) 252-1514
`
`
`Attorneys for Defendant AGIS
`SOFTWARE DEVELOPMENT LLC
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`
`
`Michael Liu Su (Cal. Bar No. 300590)
`michael.liu.su@finnegan.com
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`3300 Hillview Avenue
`Palo Alto, CA 94304
`Telephone:
`(650) 849-6600
`Facsimile:
`(650) 849-6666
`
`Lionel M. Lavenue (pro hac vice)
`lionel.lavenue@finnegan.com
`Bradford C. Schulz (pro hac vice)
`bradford.schulz@finnegan.com
`FINNEGAN, HENDERSON, FARABOW,
` GARRETT & DUNNER, LLP
`Two Freedom Square
`11955 Freedom Drive
`Reston, VA 20190
`Telephone:
`(571) 203-2700
`Facsimile:
`(202) 408-4400
`
`Attorneys for Plaintiff
`ZTE (USA) Inc.
`
`
`ZTE (USA) INC.,
`Plaintiff,
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`v.
`AGIS SOFTWARE DEVELOPMENT LLC,
`Defendant.
`
`
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`
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`
`Case No. 4:18-cv-06185-HSG
`(Former Case No. 2:17-cv-00517-JRG)
`(E.D. Tex.)
`
`JOINT STIPULATION PROTECTIVE
`ORDER FOR LITIGATION
`INVOLVING PATENTS, HIGHLY
`SENSITIVE CONFIDENTIAL
`INFORMATION AND/OR TRADE
`SECRETS
`
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 2 of 22
`
`
`
`Pursuant to Civil Local Rule 7-12 and the Court’s Scheduling Order (Dkt. 63), the parties
`hereby agree to the terms of the following proposed protective order and respectfully request that
`the Court enter the proposed order.
`
`
`
`Upon the stipulation of the parties, the Court ORDERS as follows:
`
`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. 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 13.4, 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.
`
`2.
`
`DEFINITIONS
`
`Challenging Party: a Party or Non-Party that challenges the designation of
`2.1
`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.
`
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`2
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 3 of 22
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`Designating Party: a Party or Non-Party that designates information or items that it
`2.5
`produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
`CODE”.
`Disclosure or Discovery Material: all items or information, regardless of the
`2.6
`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 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.
`2.8
`“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.
`2.9
`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely
`sensitive “Confidential Information or Items” representing computer code and associated
`comments and revision histories, formulas, engineering specifications, or schematics that define or
`otherwise describe in detail the algorithms or structure of software or hardware designs, 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.
`2.10 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.
`
`
`
`
`
`3
`
`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 4 of 22
`
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`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
`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,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or as
`“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 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 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
`
`
`
`
`
`4
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 5 of 22
`
`
`
`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.
`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
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`5
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 6 of 22
`
`
`
`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” 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” 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 the testimony may qualify for protection, the Designating Party
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`6
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 7 of 22
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`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” 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
`
`
`
`
`
`7
`
`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 8 of 22
`
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`level of protection being asserted.
`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
`
`
`
`
`
`8
`
`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
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`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 9 of 22
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`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, whichever is earlier. 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 paragraph.
`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.
`
`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 14 below (FINAL
`DISPOSITION).
`
`
`
`
`
`9
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
`
`
`
`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 10 of 22
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`
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`Protected Material must be stored and maintained by a Receiving Party at a location and in
`a secure manner1 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
`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.
`
`
` It may be appropriate under certain circumstances to require the Receiving Party to store any
`electronic Protected Material in password-protected form.
`
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`10
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
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`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 11 of 22
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`(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” : 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” 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) Designated House Counsel of the Receiving Party2 (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];
`(c) 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];
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`(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); and
`(f) the author or recipient of a document containing the information or a custodian
`or other person who otherwise possessed or knew the information.
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` The number of Designated House Counsel who may access “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” information under this provision is limited to two (2).
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
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`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 12 of 22
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`7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information
`or Items to Designated House Counsel or Experts.
`(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.3
`(a)(2) 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” or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c)
`first must make a written request to the Designating Party that (1) identifies the general categories
`of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 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
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` Any Designated House Counsel who receives “HIGHLY CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” information pursuant to this Order must 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.
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
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`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 13 of 22
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`services, including in connection with a litigation, at any time during the preceding five years,4 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.
`(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 may file a motion as provided in Civil
`Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission
`from the court to do so. Any such motion must describe the circumstances with specificity, set
`forth in detail the reasons why the disclosure to Designated House Counsel or the Expert is
`reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any
`additional means that could be used to reduce that risk. In addition, any such motion must be
`accompanied by a competent declaration describing the parties’ efforts to resolve the matter by
`agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth the
`reasons advanced by the Designating Party for its refusal to approve the disclosure.
`In any such proceeding, the Party opposing disclosure to Designated House Counsel or the
`Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under
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` If the Expert believes any of this information is subject to a confidentiality obligation to a third-
`party, then the Expert should provide whatever information the Expert believes can be disclosed
`without violating any confidentiality agreements, and the Party seeking to disclose to the Expert
`shall be available to meet and confer with the Designating Party regarding any such engagement.
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`13
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`JOINT STIPULATION PROTECTIVE ORDER
`CASE NO. 4:18-CV-06185-HSG
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`Case 4:18-cv-06185-HSG Document 69 Filed 05/14/19 Page 14 of 22
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`the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material
`to its Designa