Case 3:17-cv-00183-CAB-BGS Document 115 Filed 03/28/17 PageID.2443 Page 1 of 23
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`SAN DIEGO DIVISION
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`Case No. 3:17-cv-0183-CAB-BGS
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`ORDER GRANTING JOINT
`MOTION FOR ENTRY OF
`STIPULATED PROTECTIVE
`ORDER
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`FINJAN, INC.,
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`Plaintiff,
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`ESET, LLC and ESET SPOL. S.R.O.,
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`Defendants.
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`The parties Joint Motion for Entry of Stipulated Protective Order is GRANTED
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`as follows:
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`__________________________________________________________________________________
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`Case 3:17-cv-00183-CAB-BGS Document 115 Filed 03/28/17 PageID.2444 Page 2 of 23
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`1.
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`PURPOSES AND LIMITATIONS
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`Disclosure and discovery activity in this action are likely to involve production of
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`confidential, proprietary, or private information for which special protection from public
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`disclosure and from use for any purpose other than prosecuting this litigation may be
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`warranted. Accordingly, the parties hereby stipulate to and petition the court to enter
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`the following Stipulated Protective Order. The parties acknowledge that this Order does
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`not confer blanket protections on all disclosures or responses to discovery and that the
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`protection it affords from public disclosure and use extends only to the limited
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`information or items that are entitled to confidential treatment under the applicable legal
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`principles. The parties further acknowledge, as set forth in Section 14.4, below, that this
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`Stipulated Protective Order does not entitle them to file confidential information under
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`seal; Federal Rule of Civil Procedure 26(c), Civil Local Rule 79.2, Patent Local Rule
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`2.2 and Electronic Case Filing Administrative Policies and Procedures Section 2.j set
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`forth the procedures that must be followed and the standards that will be applied when a
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`party seeks permission from the court to file material under seal. The parties further
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`acknowledge that without separate court order, this Stipulated Protective Order does not
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`change, amend, or circumvent any court rule or local rule.
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`2.
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`DEFINITIONS
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`2.1 Challenging Party: a Party or Non-Party that challenges the designation of
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`information or items under this Order.
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`2.2
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`“CONFIDENTIAL” Information or Items: information (regardless of how
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`it is generated, stored or maintained) or tangible things that qualify for protection under
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`Federal Rule of Civil Procedure 26(c).
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`2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel
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`(as well as their support staff).
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`2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
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`STIPULATED PROTECTIVE ORDER
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`Case No. 3:17-cv-0183-CAB-BGS
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`Case 3:17-cv-00183-CAB-BGS Document 115 Filed 03/28/17 PageID.2445 Page 3 of 23
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`2.5 Designating Party: a Party or Non-Party that designates information or
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`items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”
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`or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE”.
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`2.6 Disclosure or Discovery Material: all items or information, regardless of
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`the medium or manner in which it is generated, stored, or maintained (including, among
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`other things, testimony, transcripts, and tangible things), that are produced or generated
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`in disclosures or responses to discovery in this matter.
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`2.7 Expert: a person with specialized knowledge or experience in a matter
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`pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as
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`an expert witness or as a consultant in this action, (2) is not a past or current employee
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`of a Party or of a Party’s competitor, and (3) at the time of retention, is not anticipated
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`to become an employee of a Party or of a Party’s competitor.
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`2.8
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`Information or Items: extremely sensitive “Confidential Information or Items,”
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`disclosure of which to another Party or Non-Party would create a substantial risk of
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`serious harm that could not be avoided by less restrictive means.
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`2.9
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:
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`extremely sensitive “Confidential Information or Items” representing computer code
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`and associated comments and revision histories, formulas, engineering specifications, or
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`schematics that define or otherwise describe in detail the algorithms or structure of
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`software or hardware designs, disclosure of which to another Party or Non-Party would
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`create a substantial risk of serious harm that could not be avoided by less restrictive
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`means.
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`2.10 House Counsel: attorneys who are employees of a party to this action.
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`House Counsel does not include Outside Counsel of Record or any other outside
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`counsel.
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`STIPULATED PROTECTIVE ORDER
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`Case No. 3:17-cv-0183-CAB-BGS
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`Case 3:17-cv-00183-CAB-BGS Document 115 Filed 03/28/17 PageID.2446 Page 4 of 23
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`2.11 Non-Party: any natural person, partnership, corporation, association, or
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`other legal 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
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`this action but are retained to represent or advise a party to this action and have
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`appeared in this action on behalf of that party or are affiliated with a law firm which has
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`appeared on behalf of that party.
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`2.13 Party: any party to this action, including all of its officers, directors,
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`employees, consultants, retained experts, House Counsel and Outside Counsel of
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`Record (and their support staffs).
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`2.14 Producing Party: a Party or Non-Party that produces Disclosure or
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`Discovery Material in this action.
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`2.15 Professional Vendors: persons or entities that provide litigation support
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`services (e.g., photocopying, videotaping, translating, preparing exhibits or
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`demonstrations, and organizing, storing, or retrieving data in any form or medium) and
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`their employees and subcontractors.
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`2.16 Protected Material: any Disclosure or Discovery Material that is designated
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`as “CONFIDENTIAL,” as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” or as “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`2.17 Receiving Party: a Party that receives Disclosure or Discovery Material
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`from a Producing Party.
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`3.
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`SCOPE
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`The protections conferred by this Stipulation and Order cover not only Protected
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`Material (as defined above), but also (1) any information copied or extracted from
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`Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected
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`Material; and (3) any testimony, conversations, or presentations by Parties or their
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`Counsel that might reveal Protected Material. However, the protections conferred by
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`this Stipulation and Order do not cover the following information: (a) any information
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`STIPULATED PROTECTIVE ORDER
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`Case No. 3:17-cv-0183-CAB-BGS
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`that is in the public domain at the time of disclosure to a Receiving Party or becomes
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`part of the public domain after its disclosure to a Receiving Party as a result of
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`publication not involving a violation of this Order, including becoming part of the
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`public record through trial or otherwise; and (b) any information known to the
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`Receiving Party prior to the disclosure or obtained by the Receiving Party after the
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`disclosure from a source who obtained the information lawfully and under no obligation
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`of confidentiality to the Designating Party. Any use of Protected Material at trial shall
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`be governed by a separate agreement or order.
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`4.
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`DURATION
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`Even after final disposition of this litigation, the confidentiality obligations
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`imposed by this Order shall remain in effect until a Designating Party agrees otherwise
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`in writing or a court order otherwise directs. Final disposition shall be deemed to be the
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`later of (1) dismissal of all claims and defenses in this action, with or without prejudice;
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`and (2) final judgment herein after the completion and exhaustion of all appeals,
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`rehearings, remands, trials, or reviews of this action, including the time limits for filing
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`any motions or applications for extension of time pursuant to applicable law.
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`5.
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`DESIGNATING PROTECTED MATERIAL
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`5.1 Exercise of Restraint and Care in Designating Material for Protection.
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`Each Party or Non-Party that designates information or items for protection under this
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`Order must take care to limit any such designation to specific material that qualifies
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`under the appropriate standards. To the extent it is practical to do so, the Designating
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`Party must designate for protection only those parts of material, documents, items, or
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`oral or written communications that qualify – so that other portions of the material,
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`documents, items, or communications for which protection is not warranted are not
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`swept unjustifiably within the ambit of this Order.
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`Mass, indiscriminate, or routinized designations are prohibited. Designations that
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`are shown to be clearly unjustified or that have been made for an improper purpose
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`STIPULATED PROTECTIVE ORDER
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`Case No. 3:17-cv-0183-CAB-BGS
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`Case 3:17-cv-00183-CAB-BGS Document 115 Filed 03/28/17 PageID.2448 Page 6 of 23
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`(e.g., to unnecessarily encumber or retard the case development process or to impose
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`unnecessary expenses and burdens on other parties) expose the Designating Party to
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`sanctions.
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`If it comes to a Designating Party’s attention that information or items that it
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`designated for protection do not qualify for protection at all or do not qualify for the
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`level of protection initially asserted, that Designating Party must promptly notify all
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`other parties that it is withdrawing the mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this
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`Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
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`ordered, Disclosure or Discovery
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`Material that qualifies for protection under this Order must be clearly so
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`designated before the material is disclosed or produced.
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`Designation in conformity with this Order requires:
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`(a) for information in documentary form (e.g., paper or electronic
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`documents, but excluding transcripts of depositions or other pretrial or trial
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`proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” to each page that contains protected material. If
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`only a portion or portions of the material on a page qualifies for protection, the
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`Producing Party also must clearly identify the protected portion(s) (e.g., by making
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`appropriate markings in the margins) and must specify, for each portion, the level of
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`protection being asserted.
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`A Party or Non-Party that makes original documents or materials available for
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`inspection need not designate them for protection until after the inspecting Party has
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`indicated which material it would like copied and produced. During the inspection and
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`before the designation, all of the material made available for inspection shall be deemed
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting
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`STIPULATED PROTECTIVE ORDER
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`Party has identified the documents it wants copied and produced, the Producing Party
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`must determine which documents, or portions thereof, qualify for protection under this
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`Order. Then, before producing the specified documents, the Producing Party must affix
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`the appropriate legend (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE) to
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`each page that contains Protected Material. If only a portion or portions of the material
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`on a page qualifies for protection, the Producing Party also must clearly identify the
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`protected portion(s) (e.g., by making appropriate markings in the margins) and must
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`specify, for each portion, the level of protection being asserted.
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`(b) for testimony given in deposition or in other pretrial or trial
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`proceedings, that the Designating Party identify on the record, before the close of the
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`deposition, hearing, or other proceeding, all protected testimony and specify the level of
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`protection being asserted. When it is impractical to identify separately each portion of
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`testimony that is entitled to protection and it appears that substantial portions of the
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`testimony may qualify for protection, the Designating Party may invoke on the record
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`(before the deposition, hearing, or other proceeding is concluded) a right to have up to
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`21 days to identify the specific portions of the testimony as to which protection is
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`sought and to specify the level of protection being asserted. Only those portions of the
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`testimony that are appropriately designated for protection within the 21 days shall be
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`covered by the provisions of this Stipulated Protective Order. Alternatively, a
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`Designating Party may specify, at the deposition or up to 21 days afterwards if that
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`period is properly invoked, that the entire transcript shall be treated as
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`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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`Parties shall give the other parties notice if they reasonably expect a deposition,
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`hearing or other proceeding to include Protected Material so that the other parties can
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`ensure that only authorized individuals who have signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of a
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`STIPULATED PROTECTIVE ORDER
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`document as an exhibit at a deposition shall not in any way affect its designation as
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`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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`Transcripts containing Protected Material shall have an obvious legend on the
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`title page that the transcript contains Protected Material, and the title page shall be
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`followed by a list of all pages (including line numbers as appropriate) that have been
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`designated as Protected Material and the level of protection being asserted by the
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`Designating Party. The Designating Party shall inform the court reporter of these
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`requirements. Any transcript that is prepared before the expiration of a 21-day period
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`for designation shall be treated during that period as if it had been designated “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise
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`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
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`any other tangible items, that the Producing Party affix in a prominent place on the
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`exterior of the container or containers in which the information or item is stored the
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`legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” or “HIGHLY CONFIDENTIAL – 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
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`being asserted.
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`5.3
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`Inadvertent Failures to Designate. If timely corrected, an inadvertent
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`failure to designate qualified information or items does not, standing alone, waive the
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`Designating Party’s right to secure protection under this Order for such material. Upon
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`timely correction of a designation, the Receiving Party must make reasonable efforts to
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`assure that the material is treated in accordance with the provisions of this Order.
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`STIPULATED PROTECTIVE ORDER
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`Case No. 3:17-cv-0183-CAB-BGS
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`6.1 Timing of Challenges. Any Party or Non-Party may challenge a
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`designation of confidentiality at any time. Unless a prompt challenge to a Designating
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`Party’s confidentiality designation is necessary to avoid foreseeable, substantial
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`unfairness, unnecessary economic burdens, or a significant disruption or delay of the
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`litigation, a Party does not waive its right to challenge a confidentiality designation by
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`electing not to mount a challenge promptly after the original designation is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute
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`resolution process by providing written notice of each designation it is challenging and
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`describing the basis for each challenge. To avoid ambiguity as to whether a challenge
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`has been made, the written notice must recite that the challenge to confidentiality is
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`being made in accordance with this specific paragraph of the Protective Order. The
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`parties shall attempt to resolve each challenge in good faith and must begin the process
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`by conferring directly (in voice to voice dialogue; other forms of communication are not
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`sufficient) within 14 days of the date of service of notice. In conferring, the
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`Challenging Party must explain the basis for its belief that the confidentiality
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`designation was not proper and must give the Designating Party an opportunity to
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`review the designated material, to reconsider the circumstances, and, if no change in
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`designation is offered, to explain the basis for the chosen designation. A Challenging
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`Party may proceed to the next stage of the challenge process only if it has engaged in
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`this meet and confer process first or establishes that the Designating Party is unwilling
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`to participate in the meet and confer process in a timely manner.
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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without
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`court intervention, the parties shall raise the issue with the court within 21 days of the
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`initial notice of challenge or within 14 days of the parties agreeing that the meet and
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`confer process will not resolve their dispute, whichever is earlier. In doing so, the
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`parties must comply with the requirements of Local Civil Rule 26.1 and the Chambers’
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`STIPULATED PROTECTIVE ORDER
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`Rules of this court governing discovery disputes. The burden of persuasion in any such
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`challenge proceeding shall be on the Designating Party. Frivolous challenges and those
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`made for an improper purpose (e.g., to harass or impose unnecessary expenses and
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`burdens on other parties) may expose the Challenging Party to sanctions. All parties
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`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.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`7.1 Basic Principles. A Receiving Party may use Protected Material that is
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`disclosed or produced by another Party or by a Non-Party in connection with this case
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`only for prosecuting, defending, or attempting to settle this litigation. Such Protected
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`Material may be disclosed only to the categories of persons and under the conditions
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`described in this Order. When the litigation has been terminated, a Receiving Party
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`must comply with the provisions of section 15 below (FINAL DISPOSITION).
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`Protected Material must be stored and maintained by a Receiving Party at a
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`location and in a secure manner that ensures that access is limited to the persons
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`authorized under this Order.
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`7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
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`ordered by the court or permitted in writing by the Designating Party, a Receiving Party
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`may disclose any 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
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`as employees of said Outside Counsel of Record to whom it is reasonably necessary to
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`disclose the information for this litigation and who have signed the “Acknowledgment
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`and Agreement to Be 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
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`STIPULATED PROTECTIVE ORDER
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`(c) Experts (as defined in this Order) of the Receiving Party to whom
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`disclosure is reasonably necessary for this litigation and who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(d) the court and its personnel;
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`(e) court reporters and their staff, professional jury or trial consultants, and
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`Professional Vendors to whom disclosure is reasonably necessary for this litigation and
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`who have 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
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`Bound” (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the
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`court. Pages of transcribed deposition testimony or exhibits to depositions that reveal
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`Protected Material must be separately bound by the court reporter and may not be
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`disclosed to anyone except as permitted under this Stipulated Protective Order.
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`(g) the author or recipient of a document containing the information or a
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`custodian or other person who otherwise possessed or knew the information.
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`7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items.
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`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
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well
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`as employees of said Outside Counsel of Record to whom it is reasonably necessary to
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`disclose the information for this litigation and who have signed the “Acknowledgment
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`and Agreement to Be Bound” that is attached hereto as Exhibit A;
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`(b) Designated House Counsel of the Receiving Party (1) who has no
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`involvement in competitive decision-making, (2) to whom disclosure is reasonably
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`STIPULATED PROTECTIVE ORDER
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`necessary for this litigation, (3) who has signed the “Acknowledgment and Agreement
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`to Be Bound” (Exhibit A), and (4) as to whom the procedures set forth in paragraph
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`7.4(a)(1), below, have been followed;
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`(c) Experts of the Receiving Party (1) to whom disclosure is reasonably
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`necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement
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`to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph
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`7.4(a)(2), below, have been 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,1
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`and Professional Vendors to whom disclosure is reasonably necessary for this litigation
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`and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`and
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`(f) the author or recipient of a document containing the information or a
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`custodian 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
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
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`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
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`information or item that has been designated “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make a written
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`request to the Designating Party that (1) sets forth the full name of the Designated
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`House Counsel and the city and state of his or her residence, and (2) describes the
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`Designated House Counsel’s current and reasonably foreseeable future primary job
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`1 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.
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`STIPULATED PROTECTIVE ORDER
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`duties and responsibilities in sufficient detail to determine if House Counsel is involved,
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`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)
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`any information or item that has been designated “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
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`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 –
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`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
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`information that the Receiving Party seeks permission to disclose to the Expert, (2) sets
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`forth the full name of the Expert and the city and state of his or her primary residence,
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`(3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current
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`employer(s), (5) identifies each person or entity from whom the Expert has received
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`compensation or funding for work in his or her areas of expertise or to whom the expert
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`has provided professional services, including in connection with a litigation, at any time
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`during the preceding five years,2 and (6) identifies (by name and number of the case,
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`filing date, and location of court) any litigation in connection with which the Expert has
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`offered expert testimony, including through a declaration, report, or testimony at a
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`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
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`the preceding respective paragraphs may disclose the subject Protected Material to the
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`identified Designated House Counsel or Expert unless, within 14 days of delivering the
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`2 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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`STIPULATED PROTECTIVE ORDER
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`request, the Party receives a written objection from the Designating Party. Any such
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`objection must set forth in 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
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`with the Designating Party (through direct voice to voice dialogue) to try to resolve the
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`matter by agreement within seven days of the written objection. If no agreement is
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`reached, the parties shall raise the issue with the court. In doing so, the parties must
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`comply with the requirements of Local Civil Rule 26.1 and the Chambers’ Rules of this
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`court governing discovery disputes. To the extent the court advises the parties to file a
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`motion, the party seeking to make the disclosure to Designated House Counsel or the
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`Expert must describe the circumstances with specificity, set forth in detail the reasons
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`why the disclosure to Designated House Counsel or the Expert is reasonably necessary,
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`assess the risk of harm that the disclosure would entail, and suggest any additional
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`means that could be used to reduce that risk. In addition, any such motion must be
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`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)
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`and setting forth the reasons advanced by the Designating Party for its refusal to
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`approve the disclosure.
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`In any such proceeding, the Party opposing disclosure to Designated House
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`Counsel or the Expert shall bear the burden of proving that the risk of harm that the
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`disclosure would entail (under the safeguards proposed) outweighs the Receiving
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`Party’s need to disclose the Protected Material to its Designated House Counsel or
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`Expert.
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`8.
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`PROSECUTION BAR
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`Absent written consent from the Producing Party, any individual who receives
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`access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” information shall not be involved in the
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`prosecution of patents or patent applications relating to anti-virus software and malware
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`STIPULATED PROTECTIVE ORDER
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`Case No. 3:17-cv-0183-CAB-BGS
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`detection, including without limitation the patents asserted in this action and any patent
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`or application claiming priority to or otherwise related to the patents asserted in this
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`action, before any foreign or domestic agency, including the United States Patent and
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`Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution”
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`includes directly or indirectly drafting, amending, advising, or otherwise affecting the
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`scope or maintenance of patent claims.3 To avoid any doubt, “prosecution” as used in
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`this paragraph does not include representing a party challenging a patent before a
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`domestic or foreign agency (including, but not limited to, a reissue protest, ex parte
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`reexamination or inter partes review). Nor does “prosecution” as used in this paragraph
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`include participation by Finjan, Inc.’s litigation counsel participating in the nine,
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`ongoing inter partes review proceeding