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`Case 4:20-cv-05640-YGR Document 798 Filed 06/25/21 Page 1 of 7
`
`BETSY C. MANIFOLD (182450)
`RACHELE R. BYRD (190634)
`BRITTANY N. DEJONG (258766)
`WOLF HALDENSTEIN ADLER
` FREEMAN & HERZ LLP
`750 B Street, Suite 1820
`San Diego, CA 92101
`Telephone: 619/239-4599
`Facsimile: 619/234-4599
`manifold@whafh.com
`byrd@whafh.com
`dejong@whafh.com
`
`Consumer Plaintiffs’ Interim Class Counsel
`
`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`IN RE APPLE IPHONE ANTITRUST
`LITIGATION
`
`DONALD R. CAMERON, et al.,
`Plaintiffs,
`
`v.
`APPLE INC.,
`
`Defendant.
`
`Case No. 4:11-cv-06714-YGR-TSH
`ORDER GRANTING [PROPOSED]
`SUPPLEMENTAL PROTECTIVE
`ORDER GOVERNING DISCOVERY
`FROM NIANTIC, INC.
`Hon. Yvonne Gonzalez Rogers
`
`Case No. 4:19-cv-03074-YGR-TSH
`
`EPIC GAMES, INC.,
`Plaintiff and Counter-defendant,
`
`Case No. 4:20-cv-05640-YGR-TSH
`
`v.
`APPLE INC.,
`
`Defendant and Counterclaimant.
`
` 28
`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH, 4:19-CV-03074-YGR-TSH, 4:20-CV-05640-YGR-TSH
`
`

`

`Case 4:20-cv-05640-YGR Document 798 Filed 06/25/21 Page 2 of 7
`
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`
`Having considered Consumer Plaintiffs’ Administrative Motion for Entry of Supplemental
`Protective Orders and any opposition(s) filed in response thereto, and good cause appearing, the Court
`hereby grants the motion and enters the following order:
`A.
`GENERAL PROVISIONS
`1.
`The definitions, terms and provisions contained in the Stipulated Amended Protective
`Order on January 21, 2021 (Case No. 4:11-cv-06714-YGR, Dkt. No. 381; Case No. 4:19-cv-03074-
`YGR, Dkt. No. 252) (the “Protective Order”) shall be incorporated herein by reference as though fully
`set forth herein; provided, however, that in the event of a conflict between any definition, term or
`provision of this Supplemental Protective Order and any definition, term or provision of the Protective
`Order, this Supplemental Protective Order will control with respect to such conflict.
`2.
`The definitions, terms and provisions contained in this Supplemental Protective Order
`shall apply only to those Discovery Materials produced by Niantic1, and nothing herein shall provide
`any rights or protections to the Parties to the Litigations2 beyond those set forth in the Protective Order.
`A.
`ADDITIONAL DEFINITIONS
`1.
`Business Consultant: a consultant advising on or involved in competitive decision-
`making.
`2.
`Party Expert: with respect to “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
`COUNSEL EYES ONLY,” a person with specialized knowledge or experience in a matter pertinent to
`the Litigations 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 current employee or current Business Consultant of a Party,
`Niantic, or of any Niantic competitor, or otherwise currently involved in competitive decision- making
`for a Party, Niantic, or for any Niantic competitor; (3) has not, within the 12 months preceding the
`entry of this Protective Order, been an employee or Business Consultant of a Party, Niantic, or
`
`
`1 The term “Niantic” shall include any entity that responds to subpoenas served on Niantic, Inc. in
`the Litigations. References to “competitors” within this Supplemental Protective Order shall be
`interpreted to mean competitors of Niantic, Inc. and its subsidiaries
`2 Litigations shall mean In re Apple iPhone Antitrust Litigation, Case No. 4:11-cv-06714-YGR;
`Cameron v. Apple Inc., Case No. 4:19-cv-03074-YGR; and Epic Games, Inc. v. Apple Inc., Case No.
`4:20-cv-05640.
`
`1
` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH, 4:19-CV-03074-YGR-TSH, 4:20-CV-05640-YGR-TSH
`
`

`

`Case 4:20-cv-05640-YGR Document 798 Filed 06/25/21 Page 3 of 7
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`
`Niantic’s competitor, or otherwise been involved in competitive decision-making for a Party, Niantic,
`or Niantic’s competitor; and (4) at the time of retention, is not anticipated to become an employee or
`Business Consultant of a Party, Niantic, or of any Niantic competitor, or to be otherwise involved in
`competitive decision-making for a Party or for any Niantic competitor. If, while this action is pending,
`a Party learns that any of its retained experts or consultants as defined herein is anticipating to become,
`or has become, an employee or Business Consultant of Niantic or any Niantic competitor, or otherwise
`involved in competitive decision-making for Niantic or any Niantic competitor, the Party learning such
`information shall promptly disclose the information to Niantic.
`3.
`“NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”
`Information or Items: extremely sensitive “Confidential Information or Items” produced by Niantic and
`that contain algorithms and source code; non-public, commercially sensitive customer lists or
`communications; non-public financial, marketing, or strategic business information; current or future
`non-public information regarding prices, costs, margins, or other financial metrics; information relating
`to research, development, testing of, or plans for existing or proposed future products; non-public
`information concerning Niantic’s data protection practices and security protocols or other matters
`related to data security or privacy; evaluation of the strengths and vulnerabilities of Niantic’s product
`offerings, including non-public pricing and cost information; confidential contractual terms, proposed
`contractual terms, or negotiating positions (including internal deliberations about negotiating positions)
`taken with respect to Niantic or competitors to Niantic; non-public intellectual property information;
`information relating to pending or abandoned patent applications that have not been made available to
`the public; confidential submissions to governmental entities describing Niantic’s legal positions or
`theories or other matters; personnel files; sensitive personally identifiable information; and
`communications that disclose any such information, disclosure of which to a Party or another Non-
`Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.
`C.
`ADDITIONAL PROTECTIONS FOR ACCESS TO AND USE OF NIANTIC
`PROTECTED MATERIALS
`1.
`Manner of Designating “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
`
`2
` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH, 4:19-CV-03074-YGR-TSH, 4:20-CV-05640-YGR-TSH
`
`

`

`Case 4:20-cv-05640-YGR Document 798 Filed 06/25/21 Page 4 of 7
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`
`COUNSEL EYES ONLY” Information or Items. Designation in conformity with this Supplemental
`Protective 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 Niantic affix the legend
`“NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” to each page of any
`document for which Niantic seeks protection under this Supplemental Protective Order. If only a
`portion or portions of the material on a page qualifies for protection, Niantic also must clearly identify
`the protected portion(s) (e.g., by making appropriate markings in the margins).
`If Niantic makes original documents or materials available for inspection, it 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 “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
`COUNSEL EYES ONLY.” After the inspecting Party has identified the documents it wants copied
`and produced, Niantic must determine which documents, or portions thereof, qualify for protection
`under this Supplemental Protective Order. Then, before producing the specified documents, Niantic
`must affix the appropriate legend (“NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
`EYES ONLY”) to each page that contains such material. If only a portion or portions of the material
`on a page qualifies for protection, Niantic also must clearly identify the protected portion(s) (e.g., by
`making appropriate markings in the margins).
`b)
`for testimony given in deposition or in other pretrial proceedings not involving
`the Court, that Niantic identify on the record, before the close of the deposition, hearing, or other
`proceeding, all protected testimony. 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, Niantic 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. Only those portions of the testimony that are appropriately designated
`for protection within the 21 days shall be covered by the provisions of this Supplemental Protective
`
`3
` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH, 4:19-CV-03074-YGR-TSH, 4:20-CV-05640-YGR-TSH
`
`

`

`Case 4:20-cv-05640-YGR Document 798 Filed 06/25/21 Page 5 of 7
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`Order. Alternatively, Niantic 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 “NIANTIC HIGHLY CONFIDENTIAL –
`OUTSIDE COUNSEL EYES ONLY.” With respect to trial, Niantic can petition the Court for
`appropriate protective measures which shall be requested in advance of evidence being taken.
`Niantic and the Parties shall give the other parties notice if they reasonably expect a
`deposition, hearing, or other proceeding to include “NIANTIC HIGHLY CONFIDENTIAL –
`OUTSIDE COUNSEL EYES ONLY” Information or Items 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 “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
`COUNSEL EYES ONLY.”
`Transcripts containing “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
`COUNSEL EYES ONLY” Information or Items shall have an obvious legend on the title page that the
`transcript contains such material, and the title page shall be followed by a list of all pages (including
`line numbers as appropriate) that have been designated as “NIANTIC HIGHLY CONFIDENTIAL –
`OUTSIDE COUNSEL EYES ONLY”. Niantic 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 “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
`COUNSEL 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 Niantic affix in a prominent place on the exterior of the container or
`containers in which the information or item is stored the legend “NIANTIC HIGHLY
`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” If only a portion or portions of the
`information or item warrant protection, Niantic, to the extent practicable, shall identify the protected
`portion(s).
`2.
`
`Disclosure of “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
`
`4
` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH, 4:19-CV-03074-YGR-TSH, 4:20-CV-05640-YGR-TSH
`
`

`

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`Case 4:20-cv-05640-YGR Document 798 Filed 06/25/21 Page 6 of 7
`
`ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in writing by
`Niantic, a Party may disclose any information or item designated “NIANTIC HIGHLY
`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” only to:
`(a)
`the 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 these
`Litigations and who have signed the “Acknowledgement and Agreement to be Bound” that is attached
`to the Protective Order as Exhibit A;
`(b)
`Party Experts (as defined in this Supplemental Protective Order) (1) to whom
`disclosure is reasonably necessary for these Litigations and (2) who have signed the “Acknowledgment
`and Agreement to Be Bound” (Exhibit A);
`(c)
`the Court and its personnel;
`(d)
`court reporters and their staff, professional jury or trial consultants, and
`Professional Vendors to whom disclosure is reasonably necessary for these Litigations and who have
`signed the “Acknowledgment and Agreement to be Bound” (Exhibit A); and
`(e)
`the author or recipient of a document containing the information.
`All other provisions of the Protective Order, including Paragraphs 2, 3, 4, 5.3, 6, 7.1, 9, 10, 11, 12, 13,
`and 14 apply mutatis mutandis to information designated “NIANTIC HIGHLY CONFIDENTIAL –
`OUTSIDE COUNSEL EYES ONLY” to the same extent as they apply to information designated as
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”; except that the provision in
`Paragraph 3 of the Protective Order providing that any use of Protected Material at trial shall be
`governed by a separate agreement or order shall not apply to information designated “NIANTIC
`HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” Unless otherwise ordered by
`the Court or expressly permitted by Niantic, no Party seeking to introduce documents or information
`designated “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” into the
`record at trial may disclose the materials to any persons other than those identified in Paragraph C.2.
`of this Supplemental Protective Order.
`
`5
` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH, 4:19-CV-03074-YGR-TSH, 4:20-CV-05640-YGR-TSH
`
`

`

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`Case 4:20-cv-05640-YGR Document 798 Filed 06/25/21 Page 7 of 7
`
`IT IS SO ORDERED.
`
`June 25, 2021
`DATED: May__, 2021
`
`HON. YVONNE GONZALEZ ROGERS
`United States District Court Judge
`
`27304
`
`6
` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH, 4:19-CV-03074-YGR-TSH, 4:20-CV-05640-YGR-TSH
`
`