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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 1 of 22
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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
`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.
`
`EDWARD G. POPLAWSKI (State Bar No.
`113590)
`epoplawski@wsgr.com
`OLIVIA M. KIM (State Bar No. 228382)
`okim@wsgr.com
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`633 West Fifth Street, Suite 1550
`Los Angeles, CA 90071
`Telephone: (323) 210-2900
`Facsimile: (866) 974-7329
`Attorneys for Defendant
`QUALYS INC.
`
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`
`FINJAN, INC.,
`
`v.
`
`QUALYS INC.,
`
`Plaintiff,
`
`Defendant.
`
`OAKLAND DIVISION
`
`Case No.: 4:18-cv-07229-YGR
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`*as modified by the Court*
`
` DEMAND FOR JURY TRIAL
`
`
`
`
`1.
`
`PURPOSES AND LIMITATIONS
`
`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.
`
`Accordingly, the parties hereby stipulate to and petition the Court to enter the following
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`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
`
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`
`
`
`Case No.: 4:18-cv-07229-YGR
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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 2 of 22
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`
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`confidential treatment under the applicable legal principles. The parties further acknowledge, as
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`set forth below, that this Stipulated Protective Order does not entitle them to file confidential
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`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
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`under seal.
`
`DEFINITIONS
`
`2.1
`
`Challenging Party: a Party or Non-Party that challenges the designation of
`
`information or items under this Order.
`
`2.2
`
`“CONFIDENTIAL” Information or Items: information (regardless of how it is
`
`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
`
`of Civil Procedure 26(c).
`
`2.3
`
`Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
`
`well as their support staff).
`
`2.4
`
`Designated House Counsel: House Counsel who seek access to “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
`
`2.5
`
`Designating Party: a Party or Non-Party that designates information or items that it
`
`produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEY’S EYES ONLY – SOURCE CODE.”
`
`2.6
`
`Disclosure or Discovery Material: all items or information, regardless of the
`
`medium or manner in which it is generated, stored, or maintained (including, among other things,
`
`testimony, transcripts, and tangible things), that are produced or generated in disclosures or
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`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
`
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`
`2
`
`
`
`Case No.: 4:18-cv-07229-YGR
`
`

`

`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 3 of 22
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`or of a Party’s competitor.
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`2.8
`
`“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.
`
`2.9
`
` “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY – SOURCE
`
`CODE” Information or Items: extremely sensitive “Confidential Information or Items”
`
`representing computer code and associated comments and revision histories, formulas,
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`engineering specifications, or schematics that define or otherwise describe in detail the algorithms
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`or structure of software or hardware designs, disclosure of which to another Party or Non-Party
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`would create a substantial risk of serious harm that could not be 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,
`
`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
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`subcontractors.
`
`2.16 Protected Material: any Disclosure or Discovery Material that is designated as
`
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`
`3
`
`
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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 4 of 22
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`
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`“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or as
`
`“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY – 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
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`agreement or order.
`4.
`DURATION
`Even after final disposition of this litigation, the confidentiality obligations imposed by
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`this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
`
`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,
`
`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
`4
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`
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`Case No.: 4:18-cv-07229-YGR
`
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`
`

`

`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 5 of 22
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`or Non-Party that designates information or items for protection under this Order must take care
`
`to limit any such designation to specific material that qualifies under the appropriate standards.
`
`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
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`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.
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`Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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`shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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`unnecessarily encumber or retard the case development process or to impose unnecessary
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`expenses and burdens on other parties) expose the Designating Party to sanctions.
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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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`initially asserted, that Designating Party must promptly notify all other parties that it is
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`withdrawing the mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
`
`(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
`
`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,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY,” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY SOURCE
`
`CODE” to each page that contains protected material.
`
`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
`
`5
`[PROPOSED] STIPULATED
`
`PROTECTIVE ORDER
`
`
`
`
`Case No.: 4:18-cv-07229-YGR
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`

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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 6 of 22
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`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
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`Producing Party must affix the appropriate legend (“CONFIDENTIAL,” “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
`
`ATTORNEY’S EYES ONLY – SOURCE CODE) to each page that contains Protected Material.
`
`(b) for testimony given in deposition or in other pretrial or trial proceedings, that
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`the Designating Party identify on the record, before the close of the deposition, hearing, or other
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`proceeding, all protected testimony and specify the level of protection being asserted. When it is
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`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
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`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
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`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.”
`
`The use of a document as an exhibit at a deposition shall not in any way affect its
`
`designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`
`ONLY,” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY – SOURCE CODE.”
`
`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
`
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`
`6
`
`
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`

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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 7 of 22
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`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
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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 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
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`CONFIDENTIAL – ATTORNEY’S EYES ONLY – SOURCE CODE.” If only a portion or
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`portions of the information or item warrant protection, the Producing Party, to the extent
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`practicable, shall identify the protected portion(s) and specify the level of protection being
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`asserted.
`
`5.3
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`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
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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.
`
`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
`
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`
`7
`
`
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`Case No.: 4:18-cv-07229-YGR
`
`

`

`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 8 of 22
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`
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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
`
`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 7 days of the date of service of notice.1 In
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`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
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`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 parties shall follow the Court’s Standing Order in Civil Cases regarding
`
`Discovery and Discovery Motions. The parties may file a joint letter brief regarding
`
`retaining confidentiality within 21 days of the initial notice of challenge or within 14 days of
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`the parties agreeing that the meet and confer process will not resolve their dispute,
`
`whichever is earlier. Failure by a Designating Party to file such discovery dispute letter
`
`within the applicable 21- or 14-day period (set forth above) with the Court shall
`
`automatically waive the confidentiality designation for each challenged designation. If,
`
`after submitting a joint letter brief, the Court allows that a motion may be filed, any 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. The
`
`Court, in its discretion, may elect to transfer the discovery matter to a Magistrate Judge.
`
`
`
` 1
`
` The parties agree to make reasonable efforts to confer and attempt to resolve disputes over
`designations on an expedited basis when reasonably necessary in view of upcoming deadlines in
`this action.
`
`
`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
`
`
`
`8
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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 9 of 22
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`In addition, the parties may file a joint letter brief regarding a challenge to a
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`confidentiality designation at any time if there is good cause for doing so, including a
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`challenge to the designation of a deposition transcript or any portions thereof. If, after
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`submitting a joint letter brief, the Court allows that a motion may be filed, 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 Court, in its discretion, may elect to refer the discovery
`
`matter to a Magistrate Judge.
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`The burden of persuasion in any such challenge proceeding shall be on the
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`Designating Party. Frivolous challenges, and those made for an improper purpose (e.g., to
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`harass or impose unnecessary expenses and burdens on other parties) may expose the
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`Challenging Party to sanctions. Unless the Designating Party has waived the confidentiality
`
`designation by failing to file a letter brief to retain confidentiality as described above, all
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`parties shall continue to afford the material in question the level of protection to which it is
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`entitled under the Producing Party’s designation until the court rules on the challenge.
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`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
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`in a secure manner2 that ensures that access is limited to the persons authorized under this Order.
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`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
`7.2
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` 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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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 10 of 22
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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
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`Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
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`signed the “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 and who have
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`signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(f) during their depositions, witnesses in the action to whom disclosure is
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`reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court.
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`(g) the author or recipient of a document containing the information or a custodian
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`or other person who otherwise possessed or knew the information.
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`7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY, ” and
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`“HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY – SOURCE CODE” Information
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`or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party,
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`a Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES
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`ONLY – SOURCE CODE” only to:
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`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 11 of 22
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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
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`in competitive decision-making,3 (2) to whom disclosure is reasonably necessary for this
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`litigation, (3) who has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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`and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed];
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`(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary
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`for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit 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 who have
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`signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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`(f) the author or recipient of a document containing the information or a custodian
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`or 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 – ATTORNEY’S EYES
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`ONLY – SOURCE CODE” Information or Items to Designated House Counsel or Experts.
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`(a)(1) Unless otherwise ordered by the court or agreed to in writing by the
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`Designating Party, a Party that seeks to disclose to Designated House Counsel any information or
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`item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1)
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` The parties interpret “competitive decision-making” would be limited to competition with respect to the other party
`in this matter.
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`PROTECTIVE ORDER
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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 12 of 22
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`sets forth the full name of the Designated House Counsel and the city and state of his or her
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`residence, and (2) describes the Designated House Counsel’s current and reasonably foreseeable
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`future primary job duties and responsibilities in sufficient detail to determine if House Counsel is
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`involved, or may become involved, in any competitive decision-making.
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`(a)(2) Unless otherwise ordered by the court or agreed to in writing by the
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`Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
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`information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY – SOURCE
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`CODE” pursuant to paragraph 7.3(c) first must make a written request to the Designating Party
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`that (1) identifies the general categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY – SOURCE CODE”
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`information that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the
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`full name of the Expert and the city and state of his or her primary residence, (3) attaches a copy
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`of the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5) identifies each
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`person or entity from whom the Expert has received compensation or funding for work in his or
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`her areas of expertise or to whom the expert has provided professional services, including in
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`connection with a litigation, at any time during the preceding five years,4 and (6) identifies (by
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`name and number of the case, filing date, and location of court) any litigation in connection with
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`which the Expert has offered expert testimony, including through a declaration, report, or
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`testimony at a deposition or trial, during the preceding five years.
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`(b) A Party that makes a request and provides the information specified in the
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`preceding respective paragraphs may disclose the subject Protected Material to the identified
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`Designated House Counsel or Expert unless, within 5 days of delivering the request, the Party
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`receives a written objection from the Designating Party. Any such objection must set forth in
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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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`PROTECTIVE ORDER
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`Case 4:18-cv-07229-YGR Document 34 Filed 03/27/19 Page 13 of 22
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`detail the grounds on which it is based.
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`(c) A Party that receives a timely written objection must meet and confer with the
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`Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
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`agreement within 3 business days of the written objection. If no agreement is reached, the Party
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`seeking to make the disclosure to Designated House Counsel or the Expert may file a motion as
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`provided in Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable)
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`seeking permission from the court to do so. Any such motion must describe the circumstances
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`with specificity, set forth in detail the reasons why the disclosure to Designated House Counsel or
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`the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and
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`suggest any additional means that could be used to reduce that risk. In addition, any such motion
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`must be accompanied by a competent declaration describing the parties’ efforts to resolve the
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`matter by agreement (i.e., the extent and the content of the meet and confer discussions) and
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`setting forth the reasons advanced by the Designating Party for its refusal to approve the
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`disclosure.
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`In any such proceeding, the Party opposing disclosure to Designated House Counsel or the
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`Expert shall bear the burden of proving that the risk of harm that the disclosure would entail
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`(under the safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected
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`Material to its Designated House Counsel or Expert.
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`8.
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`PROSECUTION BAR
`Absent written consent from the Producing Party, any individual who receives access to
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
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`ATTORNEY’S EYES ONLY – SOURCE CODE” information shall not be involved in the
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`prosecution of patents or patent applications relating to security technologies capable of detecting
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`malware to protect networks and endpoints, including without limitation the patents asserted in
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`this action and any patent or application claiming priority to or otherwise related to the patents
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`asserted in this action, before any foreign or domestic agency, including the United States Patent
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`and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution”
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`[PROPOSED] STIPULATED
`PROTECTIVE ORDER
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`Case No.: 4:18