Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 1 of 8
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`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
`Interim Class Counsel for the
`Consumer Plaintiffs
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`OAKLAND DIVISION
`
`Case No. 4:11-cv-06714-YGR
`
`ORDER GRANTING [PROPOSED]
`SUPPLEMENTAL PROTECTIVE
`ORDER GOVERNING DISCOVERY
`FROM ZYNGA, INC.
`
`Hon. Yvonne Gonzalez Rogers
`
`Case No. 4:19-cv-03074-YGR
`
`Case No. 4:20-cv-05640-YGR
`
`IN RE APPLE iPHONE ANTITRUST
`LITIGATION
`
`DONALD R. CAMERON, et al.,
`Plaintiffs,
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`v.
`APPLE INC.,
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`Defendant.
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`)))))))))
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`EPIC GAMES, INC., et al.,
` Plaintiff, Counter-defendant,
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`v.
`APPLE INC.,
`Defendant, Counterclaimant.
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`))))))
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 2 of 8
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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 Zynga1, and nothing herein shall
`provide any rights or protections to the Parties to the Litigations2 beyond those set forth in the
`Protective Order.
`B.
`ADDITIONAL DEFINITIONS
`1.
`Business Consultant: a consultant advising on or involved in competitive decision-
`making.
`Party: A named Plaintiff or Defendant in the Litigations; but not any other
`2.
`individuals or entities listed on the docket, including those variously listed as “Interested Party”
`“Respondent” or “Miscellaneous”.
`3.
`Party Expert: with respect to “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
`COUNSEL EYES ONLY”, a person with specialized knowledge or experience in a matter
`
`____________________________
`1
`The term “Zynga” shall include any entity that responds to subpoenas served on Zynga Inc.
`in the Litigations. References to “competitors” within this Supplemental Protective Order shall be
`interpreted to mean competitors of Zynga Inc. and its parents and 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.
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`PLAINTIFFS’ NOTICE OF DEPOSITION OF SCOTT FORSTALL
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 3 of 8
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`pertinent to the Litigations who: (1) has been retained by a Party or its counsel to serve as an
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`expert witness or as a consultant in this action; (2) is not a current employee or current Business
`Consultant of a Party, Zynga, or of any Zynga competitor, or otherwise currently involved in
`competitive decision-making for a Party, Zynga, or for any Zynga competitor; (3) has not been a
`past employee or Business Consultant of a Party, Zynga, or Zynga’s competitor, or otherwise been
`involved in competitive decision-making for a Party, Zynga, or Zynga’s competitor; and (4) at the
`time of retention, is not anticipated to become an employee or Business Consultant of a Party,
`Zynga, or of any Zynga competitor, or to be otherwise involved in competitive decision-making
`for a Party, Zynga, or for any Zynga 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 a Party, Zynga, or any Zynga competitor, or
`otherwise involved in competitive decision-making for a Party, Zynga, or any Zynga competitor,
`the Party learning such information shall promptly disclose the information to Zynga.
`3.
`“ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”
`Information or Items: “Confidential Information or Items” produced by Zynga, that contains the
`following types of extremely sensitive information—algorithms and source code; non-public,
`commercially sensitive customer lists or communications; non-public financial, marketing, or
`strategic business planning information; non-public information regarding prices, costs, margins,
`or other financial metrics; information relating to research, development, maintenance,
`improvement, testing of, or plans for existing or proposed future products; non-public information
`concerning Zynga’s data protection practices or security protocols; evaluation of the strengths or
`vulnerabilities of Zynga’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 Zynga, Zynga’s partners
`and affiliates, or competitors to Zynga; information relating to pending or abandoned patent
`applications that have not been made available to the public; confidential submissions to
`governmental entities describing Zynga’s legal positions or theories; personnel files; sensitive
`personally identifiable information; commercially sensitive information about advertising
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 4 of 8
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`including financial metrics, contracts, platforms use, performance, methodology, strategy, or
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`otherwise commercially sensitive advertising information; commercially sensitive information
`about cloud computing resources provided either by Zynga or a third-party provider, including
`historical or forward-looking analyses and projections, pricing structures or financial metrics,
`usage metrics, infrastructure, or contracts; commercially sensitive information about licensing,
`royalties, and fees to acquire content or intellectual property; and communications that disclose
`any such information.
`C.
`ADDITIONAL PROTECTIONS FOR ACCESS TO AND USE OF ZYNGA
`PROTECTED MATERIALS
`1.
`Manner of Designating “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
`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 Zynga affix the
`legend “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” to each
`page of any document for which Zynga seeks protection under this Supplemental Protective Order.
`If only a portion or portions of the material on a page qualifies for protection, Zynga also must
`clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins).
`If Zynga 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 “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
`COUNSEL EYES ONLY.” After the inspecting Party has identified the documents it wants
`copied and produced, Zynga must determine which documents, or portions thereof, qualify for
`protection under this Supplemental Protective Order. Then, before producing the specified
`documents, Zynga must affix the appropriate legend (“ZYNGA 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, Zynga also must clearly identify the
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 5 of 8
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`protected portion(s) (e.g., by making appropriate markings in the margins).
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`b.
`for testimony given in deposition or in other pretrial proceedings not
`involving the court, that Zynga 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, Zynga 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 Order. Alternatively, Zynga 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 “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
`ONLY.” With respect to trial, Zynga can petition the Court for appropriate protective measures
`which shall be requested in advance of evidence being taken.
`Zynga and the Parties shall give the other parties notice if they reasonably expect a
`deposition, hearing, or other proceeding to include “ZYNGA 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 to the Protective Order) 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 “ZYNGA HIGHLY
`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.”
`Transcripts containing “ZYNGA 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 “ZYNGA HIGHLY
`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”. Zynga 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 “ZYNGA HIGHLY
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 6 of 8
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” in its entirety unless otherwise agreed.
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`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 Zynga affix in a prominent place on the exterior of the container or
`containers in which the information or item is stored the legend “ZYNGA HIGHLY
`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” If only a portion or portions of the
`information or item warrant protection, Zynga, to the extent practicable, shall identify the
`protected portion(s).
`2.
`Disclosure of “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
`EYES ONLY” Information or Items. Nothing in this Supplemental Protective Order shall prohibit
`Zynga from choosing to disclose information to specific individuals or entities, including expert
`witnesses, at its own discretion. Unless otherwise ordered by the Court or permitted in writing by
`Zynga, a Party may disclose any information or item designated “ZYNGA 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 to the Protective Order);
`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 to the Protective
`Order); and
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`3.
`
`
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`e.
`the author or recipient of a document containing the information.
`Any Party disclosing any information or item for which an “Acknowledgement and
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 7 of 8
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`Agreement to be Bound” (Exhibit A to the Protective Order) is required shall collect and maintain
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`a copy of each executed form and promptly provide them to Zynga upon Zynga’s request. Zynga
`will not disclose the identity of any expert who has signed the “Acknowledgement and Agreement
`to be Bound” without first obtaining the consent of the party that retained the expert or,
`alternatively, authorization from the Court.
`4.
`In light of the close of discovery in Epic Games, Inc. v. Apple Inc., Case No. 4:20-
`cv-05640, Dkt. No. 116, any discovery produced by Zynga in In re Apple iPhone Antitrust
`Litigation and Cameron v. Apple Inc. (Case No. 4:11-cv-06714-YGR) or (Case No. 4:19-cv-
`03074-YGR) and designated either “CONFIDENTIAL” or “ZYNGA HIGHLY CONFIDENTIAL
`– OUTSIDE COUNSEL EYES ONLY” shall not be produced in or used at trial in Epic Games,
`Inc. v. Apple Inc.
`5.
`If additional named plaintiffs are joined in Cameron v. Apple Inc. Case No. 4:19-
`cv-03074-YGR, the existing named Plaintiffs in that matter—Donald R. Cameron and Pure Sweat
`Basketball, Inc.—shall notify Zynga. Zynga shall have reasonable opportunity to seek further
`protective orders and object to sharing of any discovery produced by Zynga and designated either
`“CONFIDENTIAL” or “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
`ONLY” as to the new named Plaintiffs.
`6.
`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 “ZYNGA
`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 “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
`ONLY”. Unless otherwise ordered by the Court or expressly permitted by Zynga, no Party
`seeking to introduce documents or information designated “ZYNGA 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.
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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`Case 4:20-cv-05640-YGR Document 801 Filed 06/25/21 Page 8 of 8
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`IT IS SO ORDERED.
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`DATED:
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`June 25, 2021
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`HON. YVONNE GONZALEZ ROGERS
`United States District Judge
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`- 8 -
`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR, 4:19-cv-03074-YGR, 4:20-cv-05640-YGR
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