Softvault Systems, Inc. v. CA, Inc.
Filing
37
ORDER by Judge Lucy H. Koh granting 36 Stipulated Protective Order (lhklc2, COURT STAFF) (Filed on 8/27/2012)
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ALISA LIPSKI (State Bar No. 278710)
EDWARD GOLDSTEIN (Pro Hac Vice To Be Filed)
GOLDSTEIN & LIPSKI, PLLC
1177 West Loop South, Suite 400
Houston, TX 77027
Telephone: (713) 877-1515
Facsimile: (713) 877-1737
Email: alipski@gliplaw.com
Email: egoldstein@gliplaw.com
JONATHAN T. SUDER (Pro Hac Vice)
CORBY R. VOWELL (Pro Hac Vice)
TODD I. BLUMENFELD (Pro Hac Vice To Be Filed)
FRIEDMAN, SUDER & COOKE
Tindall Square Warehouse No. 1
604 East 4th Street, Suite 200
Fort Worth, Texas 76102
Telephone: (817) 334-0400
Facsimile: (817) 334-0401
Email: jts@fsclaw.com
Email: vowell@fsclaw.com
Email: blumenfeld@fsclaw.com
JOSHUA C. KRUMHOLZ (pro hac vice)
BENJAMIN M. STERN (pro hac vice)
J. MITCHELL HERBERT JR. (pro hac vice)
Holland & Knight LLP
10 St. James Ave.
Boston, MA 02116
Tel: (617) 523-2700
Fax: (617) 523-6850
joshua.krumholz@hklaw.com
benjamin.stern@hklaw.com
mitchell.herbert@hklaw.com
Attorneys for Defendant
CA, INC.
Benedict O’Mahoney (Bar No.152447)
TERRA LAW
177 Park Avenue, Third Floor
San Jose, California 95113
Ph.: 408-299-1200
Fax: 408-998-4895
Email: bomahoney@terralaw.com
Attorneys for Plaintiff
SOFTVAULT SYSTEMS, INC.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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SOFTVAULT SYSTEMS, INC.,
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Plaintiff,
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vs.
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CA. INC.,
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MATTHEW P. VAFIDIS (California Bar No.
103578)
Holland & Knight LLP
50 California Street, Suite 2800
San Francisco, CA 94111
Tel: (415) 743-6900
Fax: (415) 743-6910
matthew.vafidis@hklaw.com
CASE NO. 12-cv-1940-LHK
Consolidated Case No.: 12-cv-1099
Consolidated Case No.: 12-cv-1658
STIPULATED PROTECTIVE
ORDER
Defendant.
JURY TRIAL DEMANDED
28
2
1
1.
PURPOSES AND LIMITATIONS
2
Disclosure and discovery activity in this action are likely to involve
3
production of confidential, proprietary, or private information for which special
4
protection from public disclosure and from use for any purpose other than
5
prosecuting this litigation may be warranted. Accordingly, the parties hereby
6
stipulate to and petition the court to enter the following Stipulated Protective
7
Order. The parties acknowledge that this Order does not confer blanket protections
8
on all disclosures or responses to discovery and that the protection it affords from
9
public disclosure and use extends only to the limited information or items that are
10
entitled to confidential treatment under the applicable legal principles. The parties
11
further acknowledge, as set forth in Section 14.4, below, that this Stipulated
12
Protective Order does not entitle them to file confidential information under seal;
13
Civil Local Rule 79-5 and General Order 62 set forth the procedures that must be
14
followed and the standards that will be applied when a party seeks permission from
15
the court to file material under seal.
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2.
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18
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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
20
how it is generated, stored or maintained) or tangible things that qualify for
21
protection under Federal Rule of Civil Procedure 26(c).
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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
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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this
26
matter.
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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
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“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
2
ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”.
3
2.6
Disclosure or Discovery Material: all items or information, regardless
4
of the medium or manner in which it is generated, stored, or maintained (including,
5
among other things, testimony, transcripts, and tangible things), that are produced
6
or generated in disclosures or responses to discovery in this matter.
7
2.7
Expert: a person with specialized knowledge or experience in a matter
8
pertinent to the litigation who (1) has been retained by a Party or its counsel to
9
serve as an expert witness or as a consultant in this action, (2) is not a past or
10
current employee of a Party or of a Party’s competitor, and (3) at the time of
11
retention, is not anticipated to become an employee of a Party or of a Party’s
12
competitor.
13
2.8
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
14
Information or Items: extremely sensitive “Confidential Information or Items,”
15
disclosure of which to another Party or Non-Party would create a substantial risk of
16
serious harm that could not be avoided by less restrictive means.
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2.9
“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
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Items: extremely sensitive “Confidential Information or Items” representing
19
computer code and associated comments and revision histories, formulas,
20
engineering specifications, or schematics that define or otherwise describe in detail
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the algorithms or structure of software or hardware designs, disclosure of which to
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another Party or Non-Party would create a substantial risk of serious harm that
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could not be avoided by
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less restrictive 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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2.11 Non-Party: any natural person, partnership, corporation, association,
or 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
4
party to this action but are retained to represent or advise a party to this action and
5
have appeared in this action on behalf of that party or are affiliated with a law firm
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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,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
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2.14 Producing Party: a Party or Non-Party that produces Disclosure or
Discovery Material in this action.
12
2.15 Professional Vendors: persons or entities that provide litigation
13
support services (e.g., photocopying, videotaping, translating, preparing exhibits or
14
demonstrations, and organizing, storing, or retrieving data in any form or medium)
15
and their employees and subcontractors.
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2.16 Protected Material: any Disclosure or Discovery Material that is
17
designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL –
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ATTORNEYS’ EYES ONLY.” or as “HIGHLY CONFIDENTIAL – SOURCE
19
CODE.”
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2.17 Receiving Party: a Party that receives Disclosure or Discovery
21
Material from a Producing Party.
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3.
SCOPE
23
The protections conferred by this Stipulation and Order cover not only
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Protected Material (as defined above), but also (1) any information copied or
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extracted from Protected Material; (2) all copies, excerpts, summaries, or
26
compilations of Protected Material; and (3) any testimony, conversations, or
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presentations by Parties or their Counsel that might reveal Protected Material.
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However, the protections conferred by this Stipulation and Order do not cover the
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following information: (a) any information that is in the public domain at the time
2
of disclosure to a Receiving Party or becomes part of the public domain after its
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disclosure to a Receiving Party as a result of publication not involving a violation
4
of this Order, including becoming part of the public record through trial or
5
otherwise; and (b) any information known to the Receiving Party prior to the
6
disclosure or obtained by the Receiving Party after the disclosure from a source
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who obtained the information lawfully and under no obligation of confidentiality to
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the Designating Party. Any use of Protected Material at trial shall be governed by a
9
separate agreement or order.
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4.
DURATION
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Even after final disposition of this litigation, the confidentiality obligations
12
imposed by this Order shall remain in effect until a Designating Party agrees
13
otherwise in writing or a court order otherwise directs. Final disposition shall be
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deemed to be the later of (1) dismissal of all claims and defenses in this action,
15
with or without prejudice; and (2) final judgment herein after the completion and
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exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
17
including the time limits for filing any motions or applications for extension of
18
time pursuant to applicable law.
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5.
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DESIGNATING PROTECTED MATERIAL
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
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this Order must take care to limit any such designation to specific material that
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qualifies under the appropriate standards. To the extent it is practical and not
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burdensome to do so, the Designating Party must designate for protection only
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those parts of material, documents, items, or oral or written communications that
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qualify – so that other portions of the material, documents, items, or
27
communications for which protection is not warranted are not swept unjustifiably
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within the ambit of this Order.
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Mass, indiscriminate, or routinized designations are prohibited. Designations
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that are shown to be clearly unjustified or that have been made for an improper
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purpose (e.g., to unnecessarily encumber or retard the case development process or
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to impose unnecessary expenses and burdens on other parties) expose the
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Designating Party to 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
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the level of protection initially asserted, that Designating Party must promptly
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notify all 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
11
Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise
12
stipulated or ordered, Disclosure or Discovery Material that qualifies for protection
13
under this Order must be clearly so designated before the material is disclosed or
14
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
17
documents, but excluding transcripts of depositions or other pretrial or trial
18
proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or
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“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
20
CONFIDENTIAL – SOURCE CODE” to each page that contains protected
21
material. If only a portion or portions of the material on a page qualifies for
22
protection, the Producing Party also must clearly identify the protected portion(s)
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(e.g., by making appropriate markings in the margins) and must specify, for each
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portion, the level of protection being asserted.
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A Party or Non-Party that makes original documents or materials available
26
for inspection need not designate them for protection until after the inspecting
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Party has indicated which material it would like copied and produced. During the
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inspection and before the designation, all of the material made available for
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inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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ONLY.” After the inspecting Party has identified the documents it wants copied
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and produced, the Producing Party must determine which documents, or portions
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thereof, qualify for protection under this Order. Then, before producing the
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specified documents, the Producing Party must affix the appropriate legend
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(“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
7
ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE) to each page that
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contains Protected Material. If only a portion or portions of the material on a page
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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
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must 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 proceedings,
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that the Designating Party identify on the record, before the close of the deposition,
14
hearing, or other proceeding, all protected testimony and specify the level of
15
protection being asserted. When it is impractical to identify separately each portion
16
of testimony that is entitled to protection and it appears that substantial portions of
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the testimony may qualify for protection, the Designating Party may invoke on the
18
record (before the deposition, hearing, or other proceeding is concluded) a right to
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have up to 21 days to identify the specific portions of the testimony as to which
20
protection is sought and to specify the level of protection being asserted. To the
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extent practicable and not burdensome, only those portions of the testimony that
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are appropriately designated for protection within the 21 days shall be covered by
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the provisions of this Stipulated Protective Order. Alternatively, a Designating
24
Party may specify, at the deposition or up to 21 days afterwards if that period is
25
properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL”
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or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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Parties shall give the other parties notice if they reasonably expect a
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deposition, hearing or other proceeding to include Protected Material so that the
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other parties can ensure that only authorized individuals who have signed the
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“Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those
3
proceedings. The use of a document as an exhibit at a deposition shall not in any
4
way affect its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL
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– ATTORNEYS’ EYES ONLY.”
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Transcripts containing Protected Material shall have an obvious legend on
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the title page that the transcript contains Protected Material, and the title page shall
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be followed by a list of all pages (including line numbers as appropriate) that have
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been designated as Protected Material and the level of protection being asserted by
10
the Designating Party. The Designating Party shall inform the court reporter of
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these requirements. Any transcript that is prepared before the expiration of a 21-
12
day period for designation shall be treated during that period as if it had been
13
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its
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entirety unless otherwise agreed. After the expiration of that period, the transcript
15
shall be treated only as 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
18
exterior of the container or containers in which the information or item is stored
19
the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
20
EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. If only a
21
portion or portions of the information or item warrant protection, the Producing
22
Party, to the extent practicable, shall identify the protected portion(s) and specify
23
the level of protection being asserted.
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5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent
25
failure to designate qualified information or items does not, standing alone, waive
26
the Designating Party’s right to secure protection under this Order for such
27
material. Upon timely correction of a designation, the Receiving Party must make
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reasonable efforts to assure that the material is treated in accordance with the
9
1
provisions of this Order, including retrieval or destruction of copies distributed to
2
unauthorized individuals; and destroy copies of documents that have been replaced
3
with documents containing the proper designations.
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6.
5
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a
6
designation of confidentiality at any time. Unless a prompt challenge to a
7
Designating Party’s confidentiality designation is necessary to avoid foreseeable,
8
substantial unfairness, unnecessary economic burdens, or a significant disruption
9
or delay of the litigation, a Party does not waive its right to challenge a
10
confidentiality designation by electing not to mount a challenge promptly after the
11
original designation is disclosed.
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6.2
Meet and Confer. The Challenging Party shall initiate the dispute
13
resolution process by providing written notice of each designation it is challenging
14
and describing the basis for each challenge. To avoid ambiguity as to whether a
15
challenge has been made, the written notice must recite that the challenge to
16
confidentiality is being made in accordance with this specific paragraph of the
17
Protective Order. The parties shall attempt to resolve each challenge in good faith
18
and must begin the process by conferring directly (in voice to voice dialogue; other
19
forms of communication are not sufficient) within 14 days of the date of service of
20
notice. In conferring, the Challenging Party must explain the basis for its belief that
21
the confidentiality designation was not proper and must give the Designating Party
22
an opportunity to review the designated material, to reconsider the circumstances,
23
and, if no change in designation is offered, to explain the basis for the chosen
24
designation. A Challenging Party may proceed to the next stage of the challenge
25
process only if it has engaged in this meet and confer process first or establishes
26
that the Designating Party is unwilling to participate in the meet and confer process
27
in a timely manner.
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6.3
Judicial Intervention. If the Parties cannot resolve a challenge without
2
court intervention, the Designating Party shall file and serve a motion to retain
3
confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule
4
79-5 and General Order 62, if applicable) within 21 days of the initial notice of
5
challenge or within 14 days of the parties agreeing that the meet and confer process
6
will not resolve their dispute, whichever is earlier. Each such motion must be
7
accompanied by a competent declaration affirming that the movant has complied
8
with the meet and confer requirements imposed in the preceding paragraph. Failure
9
by the Designating Party to make such a motion including the required declaration
10
within 21 days (or 14 days, if applicable) shall automatically waive the
11
confidentiality designation for each challenged designation. In addition, the
12
Challenging Party may file a motion challenging a confidentiality designation at
13
any time if there is good cause for doing so, including a challenge to the
14
designation of a deposition transcript or any portions thereof. Any motion brought
15
pursuant to this provision must be accompanied by a competent declaration
16
affirming that the movant has complied with the meet and confer requirements
17
imposed by the preceding paragraph.
18
The burden of persuasion in any such challenge proceeding shall be on the
19
Designating Party. Frivolous challenges and those made for an improper purpose
20
(e.g., to harass or impose unnecessary expenses and burdens on other parties) may
21
expose the Challenging Party to sanctions. Unless the Designating Party has
22
waived the confidentiality designation by failing to file a motion to retain
23
confidentiality as described above, all parties shall continue to afford the material
24
in question the level of protection to which it is entitled under the Producing
25
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
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
11
1
case only for prosecuting, defending, or attempting to settle this litigation. Such
2
Protected Material may be disclosed only to the categories of persons and under
3
the conditions described in this Order. When the litigation has been terminated, a
4
Receiving Party must comply with the provisions of section 15 below (FINAL
5
DISPOSITION).
6
Protected Material must be stored and maintained by a Receiving Party at a
7
location and in a secure manner that ensures that access is limited to the persons
8
authorized under this Order.
9
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless
10
otherwise ordered by the court or permitted in writing by the Designating Party, a
11
Receiving
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“CONFIDENTIAL” only to:
Party
may
disclose
any
information
or
item
designated
13
(a) the Receiving Party’s Outside Counsel of Record in this action, as well
14
as employees of said Outside Counsel of Record to whom it is reasonably
15
necessary to disclose the information for this litigation and who have signed the
16
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
17
A;
18
(b) the officers, directors, and employees (including House Counsel) of the
19
Receiving Party to whom disclosure is reasonably necessary for this litigation and
20
who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
21
(c) Experts (as defined in this Order) of the Receiving Party to whom
22
disclosure is reasonably necessary for this litigation and who have signed the
23
“Acknowledgment and Agreement to Be Bound” (Exhibit A);
24
(d) the court and its personnel;
25
(e) court reporters and their staff, professional jury or trial consultants, and
26
Professional Vendors to whom disclosure is reasonably necessary for this litigation
27
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
28
A);
12
1
(f) during their depositions, witnesses in the action to whom disclosure is
2
reasonably necessary and who have signed the “Acknowledgment and Agreement
3
to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party or
4
ordered by the court. Pages of transcribed deposition testimony or exhibits to
5
depositions that reveal Protected Material must be separately bound by the court
6
reporter and may not be disclosed to anyone except as permitted under this
7
Stipulated Protective Order.
(g) the author or recipient of a document containing the information or a
8
9
custodian or other person who otherwise possessed or knew the information.
10
7.3
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
11
ONLY” and “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
12
Items. Unless otherwise ordered by the court or permitted in writing by the
13
Designating Party, a Receiving Party may disclose any information or item
14
designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
15
“HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
16
(a) the Receiving Party’s Outside Counsel of Record in this action, as well
17
as employees of said Outside Counsel of Record to whom it is reasonably
18
necessary to disclose the information for this litigation and who have signed the
19
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
20
A;
21
(b) Experts of the Receiving Party (1) to whom disclosure is reasonably
22
necessary for this litigation, (2) who have signed the “Acknowledgment and
23
Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth
24
in paragraph 7.4(a)(2), below, have been followed;
25
(c) the court and its personnel;
26
(d) court reporters and their staff, professional jury or trial consultants, and
27
Professional Vendors to whom disclosure is reasonably necessary for this litigation
28
13
1
and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
2
A); and
(e) the author or recipient of a document containing the information or a
3
4
custodian or other person who otherwise possessed or knew the information.
5
7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY
6
CONFIDENTIAL
–
ATTORNEYS’
EYES
ONLY”
or
7
“HIGHLY
CONFIDENTIAL – SOURCE CODE” Information or Items to Experts.
8
(a) Unless otherwise ordered by the court or agreed to in writing by the
9
Designating Party, a Party that seeks to disclose to an Expert (as defined in this
10
Order) any information or item that has been designated “HIGHLY
11
CONFIDENTIAL
12
CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(c) first must
13
make a written request to the Designating Party that (1) identifies the general
14
categories of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
15
“HIGHLY CONFIDENTIAL – SOURCE CODE” information that the Receiving
16
Party seeks permission to disclose to the Expert, (2) sets forth the full name of the
17
Expert and the city and state of his or her primary residence, (3) attaches a copy of
18
the Expert’s current resume, (4) identifies the Expert’s current employer(s), (5)
19
identifies each person or entity from whom the Expert has received compensation
20
or funding for work in his or her areas of expertise or to whom the expert has
21
provided professional services, including in connection with a litigation, at any
22
time during the preceding five years, 1 and (6) identifies (by name and number of
23
the case, filing date, and location of court) any litigation in connection with which
24
the Expert has offered expert testimony, including through a declaration, report, or
25
testimony at a deposition or trial, during the preceding five years.
–
ATTORNEYS’
EYES
ONLY”
or
“HIGHLY
26
27
28
1
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.
14
1
(b) A Party that makes a request and provides the information specified in
2
the preceding respective paragraphs may disclose the subject Protected Material to
3
the identified Expert unless, within 14 days of delivering the request, the Party
4
receives a written objection from the Designating Party. Any such objection must
5
set forth in detail the grounds on which it is based.
6
(c) A Party that receives a timely written objection must meet and confer
7
with the Designating Party (through direct voice to voice dialogue) to try to resolve
8
the matter by agreement within seven days of the written objection. If no
9
agreement is reached, the Party seeking to make the disclosure to the Expert may
10
file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local
11
Rule 79-5 and General Order 62, if applicable) seeking permission from the court
12
to do so. Any such motion must describe the circumstances with specificity, set
13
forth in detail the reasons why the disclosure to the Expert is reasonably necessary,
14
assess the risk of harm that the disclosure would entail, and suggest any additional
15
means that could be used to reduce that risk. In addition, any such motion must be
16
accompanied by a competent declaration describing the parties’ efforts to resolve
17
the matter by agreement (i.e., the extent and the content of the meet and confer
18
discussions) and setting forth the reasons advanced by the Designating Party for its
19
refusal to approve the disclosure.
20
In any such proceeding, the Party opposing disclosure to the Expert shall
21
bear the burden of proving that the risk of harm that the disclosure would entail
22
(under the safeguards proposed) outweighs the Receiving Party’s need to disclose
23
the Protected Material to its Expert.
24
8.
PROSECUTION BAR
25
Absent written consent from the Producing Party, any individual who
26
receives access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
27
or “HIGHLY CONFIDENTIAL – SOURCE CODE” technical or source code
28
information shall not be involved in the prosecution of patents or patent
15
1
applications relating to software, hardware and systems for data loss prevention,
2
mobile device management or software activation, including without limitation the
3
patents asserted in this action and any patent or application claiming priority to or
4
otherwise related to the patents asserted in this action, before any foreign or
5
domestic agency, including the United States Patent and Trademark Office (“the
6
Patent Office”). For purposes of this paragraph, “prosecution” includes directly or
7
indirectly drafting, amending, advising, or otherwise affecting the scope or
8
maintenance of patent claims. 2 To avoid any doubt, “prosecution” as used in this
9
paragraph does not include representing a party challenging a patent before a
10
domestic or foreign agency (including, but not limited to, a reissue protest, ex parte
11
reexamination or inter partes reexamination). This Prosecution Bar shall begin
12
when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
13
“HIGHLY CONFIDENTIAL – SOURCE CODE” technical or source information
14
is first received by the affected individual and shall end two (2) years after final
15
termination of this action.3
16
9.
17
SOURCE CODE
(a)
a
To the extent production of source code becomes necessary in this
18
case,
19
CONFIDENTIAL - SOURCE CODE” if it comprises or includes confidential,
20
proprietary or trade secret source code.
(b)
21
Producing
Party
may
designate
source
code
as
“HIGHLY
Protected Material designated as “HIGHLY CONFIDENTIAL –
22
SOURCE CODE” shall be subject to all of the protections afforded to “HIGHLY
23
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information, including the
24
Prosecution Bar set forth in Paragraph 8, and may be disclosed only to the
25
individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
26
27
2
28
Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.
3
The Prosecution Bar shall not apply to individuals who only receive access to another party’s financial information
that has been designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”.
16
1
ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and 7.4, with
2
the exception of Designated House Counsel.
3
(c)
Any source code produced in discovery shall be made available for
4
inspection, in a format allowing it to be reasonably reviewed and searched, during
5
normal business hours or at other mutually agreeable times, at an office of the
6
Producing Party’s counsel or another mutually agreed upon location. The source
7
code shall be made available for inspection on a secured computer in a secured
8
room without Internet access or network access to other computers, and the
9
Receiving Party shall not copy, remove, or otherwise transfer any portion of the
10
source code onto any recordable media or recordable device. The Producing Party
11
may visually monitor the activities of the Receiving Party’s representatives during
12
any source code review, but only to ensure that there is no unauthorized recording,
13
copying, or transmission of the source code.
14
(d)
The Receiving Party may request paper copies of limited portions of
15
source code that are reasonably necessary for the preparation of court filings,
16
pleadings, expert reports, or other papers, or for deposition or trial, but shall not
17
request paper copies for the purposes of reviewing the source code other than
18
electronically as set forth in paragraph (c) in the first instance. The Producing Party
19
shall provide all such source code in paper form including bates numbers and the
20
label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing Party may
21
challenge the amount of source code requested in hard copy form pursuant to the
22
dispute resolution procedure and timeframes set forth in Paragraph 6 whereby the
23
Producing Party is the “Challenging Party” and the Receiving Party is the
24
“Designating Party” for purposes of dispute resolution.
25
(e)
The Receiving Party shall maintain a record of any individual who has
26
inspected any portion of the source code in electronic or paper form. The
27
Receiving Party shall maintain all paper copies of any printed portions of the
28
source code in a secured, locked area. The Receiving Party shall not create any
17
1
electronic or other images of the paper copies and shall not convert any of the
2
information contained in the paper copies into any electronic format. The
3
Receiving Party shall only make additional paper copies if such additional copies
4
are (1) necessary to prepare court filings, pleadings, or other papers (including a
5
testifying expert’s expert report), (2) necessary for deposition, or (3) otherwise
6
necessary for the preparation of its case. Any paper copies used during a deposition
7
shall be retrieved by the Producing Party at the end of each day and must not be
8
given to or left with a court reporter or any other individual.
9
(f)
Unless a Producing Party chooses to disclose Source Code prior to
10
request from the Receiving Party, the Receiving Party shall provide ten (10)
11
business days notice of the Source Code that it wishes to inspect prior to the first
12
inspection of any Source Code.
13
(g)
Once the Producing Party has initially produced the Source Code for
14
inspection and review, it shall make it available for additional inspection upon
15
three (3) business days notice and, to the extent shorter notice is provided, the
16
Producing Party agrees to use reasonable efforts to accommodate the Receiving
17
Party’s request. The Producing Party and the Receiving Party shall consult with
18
one another in advance regarding particular Source Code review tools to be
19
installed on the computer. The Producing Party agrees to make review tools
20
available on the Source Code Computer to the Receiving Party upon reasonable
21
request, including free tools downloadable from the internet (such as Visual Studio
22
Express tools). If the requested review tools must be purchased, the Receiving
23
Party shall be responsible for bearing the cost and for providing the installation
24
files at least seven (7) business days in advance of the date upon which the
25
Receiving Party wishes to have the requested review tools available for use on the
26
Source Code Computer.
27
28
18
1
10.
2
PROTECTED
MATERIAL
SUBPOENAED
OR
ORDERED
PRODUCED IN OTHER LITIGATION
3
If a Party is served with a subpoena or a court order issued in other litigation that
4
compels disclosure of any information or items designated in this action as
5
“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6
ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party must:
(a) promptly notify in writing the Designating Party. Such notification shall
7
8
include a copy of the subpoena or court order;
9
(b) promptly notify in writing the party who caused the subpoena or order to
10
issue in the other litigation that some or all of the material covered by the subpoena
11
or order is subject to this Protective Order. Such notification shall include a copy
12
of this Stipulated Protective Order; and
(c) cooperate with respect to all reasonable procedures sought to be pursued
13
14
by the Designating Party whose Protected Material may be affected.
15
If the Designating Party timely seeks a protective order, the Party served
16
with the subpoena or court order shall not produce any information designated in
17
this
18
ATTORNEYS’ EYES ONLY” before a determination by the court from which the
19
subpoena or order issued, unless the Party has obtained the Designating Party’s
20
permission. The Designating Party shall bear the burden and expense of seeking
21
protection in that court of its confidential material – and nothing in these
22
provisions should be construed as authorizing or encouraging a Receiving Party in
23
this action to disobey a lawful directive from another court.
24
11.
action
as
“CONFIDENTIAL”
or
“HIGHLY
CONFIDENTIAL
–
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
25
PRODUCED IN THIS LITIGATION
26
(a)
The terms of this Order are applicable to information produced by a
27
Non-Party in this action and designated as “CONFIDENTIAL” or “HIGHLY
28
CONFIDENTIAL
–
ATTORNEYS’
19
EYES
ONLY”
or
“HIGHLY
1
CONFIDENTIAL – SOURCE CODE”. Such information produced by Non-Parties
2
in connection with this litigation is protected by the remedies and relief provided
3
by this Order. Nothing in these provisions should be construed as prohibiting a
4
Non-Party from seeking additional protections.
(b)
5
In the event that a Party is required, by a valid discovery request, to
6
produce a Non-Party’s confidential information in its possession, and the Party is
7
subject to an agreement with the Non-Party not to produce the Non-Party’s
8
confidential information, then the Party shall:
9
1. promptly notify in writing the Requesting Party and the Non-
10
Party that some or all of the information requested is subject to a confidentiality
11
agreement with a Non-Party;
12
2. promptly provide the Non-Party with a copy of the Stipulated
13
Protective Order in this litigation, the relevant discovery request(s), and a
14
reasonably specific description of the information requested; and
3. make the information requested available for inspection by the
15
16
Non-Party.
(c)
17
If the Non-Party fails to object or seek a protective order from this
18
court within 14 days of receiving the notice and accompanying information, the
19
Receiving Party may produce the Non-Party’s confidential information responsive
20
to the discovery request. If the Non-Party timely seeks a protective order, the
21
Receiving Party shall not produce any information in its possession or control that
22
is subject to the confidentiality agreement with the Non-Party before a
23
determination by the court. Absent a court order to the contrary, the Non-Party
24
shall bear the burden and expense of seeking protection in this court of its
25
Protected Material.
26
12.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
27
If a Receiving Party learns that, by inadvertence or otherwise, it has
28
disclosed Protected Material to any person or in any circumstance not authorized
20
1
under this Stipulated Protective Order, the Receiving Party must immediately (a)
2
notify in writing the Designating Party of the unauthorized disclosures, (b) use its
3
best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform
4
the person or persons to whom unauthorized disclosures were made of all the terms
5
of this Order, and (d) request such person or persons to execute the
6
“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit
7
A.
8
13.
9
INADVERTENT
PRODUCTION
OF
PRIVILEGED
OR
OTHERWISE PROTECTED MATERIAL
10
The inadvertent or unintentional production of documents or information which a
11
party or non-party later claims should not have been produced because it is
12
protected by a privilege, protection, or immunity will not be deemed to be a waiver
13
of such privilege, protection, or immunity. A party or non-party may request the
14
return of any inadvertently produced privileged material, and the Receiving Party
15
shall make no further use such document(s) or information and, as soon as
16
practicable, shall return or destroy all copies of such inadvertently produced
17
document(s) or information, and confirm such destruction in writing to the
18
Producing Party.
19
documents, the Producing Party shall provide a privilege log to the Receiving Party
20
describing the inadvertently produced documents that the Receiving Party returned
21
or destroyed. Notwithstanding this paragraph, the Receiving Party shall reserve
22
the right to challenge, by motion to the Court, whether any inadvertently produced
23
document are, in fact, subject to the attorney-client privilege or work product
24
doctrine or whether the such privilege has been waived.
25
14.
26
27
Upon destruction of or return of inadvertently produced
MISCELLANEOUS
14.1 Right to Further Relief. Nothing in this Order abridges the right of any
person to seek its modification by the court in the future.
28
21
1
14.2 Right to Assert Other Objections. By stipulating to the entry of this
2
Protective Order no Party waives any right it otherwise would have to object to
3
disclosing or producing any information or item on any ground not addressed in
4
this Stipulated Protective Order. Similarly, no Party waives any right to object on
5
any ground to use in evidence of any of the material covered by this Protective
6
Order.
7
14.3 Export Control. Disclosure of Protected Material shall be subject to all
8
applicable laws and regulations relating to the export of technical data contained in
9
such Protected Material, including the release of such technical data to foreign
10
persons or nationals in the United States or elsewhere. The Producing Party shall
11
be responsible for identifying any such controlled technical data, and the Receiving
12
Party shall take measures necessary to ensure compliance.
13
14.4 Filing Protected Material. Without written permission from the
14
Designating Party or a court order secured after appropriate notice to all interested
15
persons, a Party may not file in the public record in this action any Protected
16
Material. A Party that seeks to file under seal any Protected Material must comply
17
with Civil Local Rule 79-5 and General Order 62. Protected Material may only be
18
filed under seal pursuant to a court order authorizing the sealing of the specific
19
Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order
20
62, a sealing order will issue only upon a request establishing that the Protected
21
Material at issue is privileged, protectable as a trade secret, or otherwise entitled to
22
protection under the law. If a Receiving Party's request to file Protected Material
23
under seal pursuant to Civil Local Rule 79-5(d) and General Order 62 is denied by
24
the court, then the Receiving Party may file the Protected Material in the public
25
record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the
26
court.
27
28
22
1
15.
FINAL DISPOSITION
2
Within 60 days after the final disposition of this action, as defined in
3
paragraph 4, each Receiving Party must return all Protected Material to the
4
Producing Party or destroy such material. As used in this subdivision, “all
5
Protected Material” includes all copies, abstracts, compilations, summaries, and
6
any other format reproducing or capturing any of the Protected Material. Whether
7
the Protected Material is returned or destroyed, the Receiving Party must submit a
8
written certification to the Producing Party (and, if not the same person or entity, to
9
the Designating Party) by the 60-day deadline that (1) identifies (by category,
10
where appropriate) all the Protected Material that was returned or destroyed and
11
(2) affirms that the Receiving Party has not retained any copies, abstracts,
12
compilations, summaries or any other format reproducing or capturing any of the
13
Protected Material. Notwithstanding this provision, Counsel are entitled to retain
14
an archival copy of all pleadings, motion papers, trial, deposition, and hearing
15
transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert
16
reports, attorney work product, and consultant and expert work product, even if
17
such materials contain Protected Material. Any such archival copies that contain or
18
constitute Protected Material remain subject to this Protective Order as set forth in
19
Section 4 (DURATION).
20
21
22
23
24
25
26
27
28
23
1
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
2
3
DATED: August 24, 2012
/s/ Corby R. Vowell
Attorneys for SoftVault Systems, Inc.
DATED: August 24, 2012
/s/ Benjamin M. Stern
Attorneys for CA, Inc.
4
5
6
7
8
9
PURSUANT TO STIPULATION, IT IS SO ORDERED.
10
11
12
DATED: August 24, 2012
___________________________________
Honorable Lucy H. Koh
United States District/Magistrate Judge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
24
1
EXHIBIT A
2
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3
I, _____________________________ [print or type full name], of
4
_________________ [print or type full address], declare under penalty of
5
perjury that I have read in its entirety and understand the Stipulated Protective
6
Order that was issued by the United States District Court for the Northern
7
District of California on [date] in the case of SoftVault Systems, Inc. v. CA, Inc.,
8
case no. 12-cv-1940-LHK, in the United States District Court for the Northern
9
District of California. I agree to comply with and to be bound by all the terms of
10
this Stipulated Protective Order and I understand and acknowledge that failure
11
to so comply could expose me to sanctions and punishment in the nature of
12
contempt. I solemnly promise that I will not disclose in any manner any
13
information or item that is subject to this Stipulated Protective Order to any
14
person or entity except in strict compliance with the provisions of this Order.
15
I further agree to submit to the jurisdiction of the United States District
16
Court for the Northern District of California for the purpose of enforcing the terms
17
of this Stipulated Protective Order, even if such enforcement proceedings occur
18
after termination of this action.
19
I hereby appoint __________________________ [print or type full name] of
20
_______________________________________ [print or type full address and
21
telephone number] as my California agent for service of process in connection with
22
this action or any proceedings related to enforcement of this Stipulated Protective
23
Order.
24
Date: _________________________
25
City and State where sworn and signed: _________________________________
26
Printed name: ______________________________
27
28
Signature: __________________________________
25
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
DATED: August 24, 2012
/s/ Corby R. Vowell
Jonathan T. Suder
Corby R. Vowell
Todd Blumenfeld
FRIEDMAN, SUDER & COOKE
Tindall Square Warehouse No. 1
604 East 4th Street, Suite 200
Fort Worth, Texas 76102
Telephone: (817) 334-0400
Facsimile: (817) 334-0401
Email: jts@fsclaw.com
Email: vowell@fsclaw.com
Email: blumenfeld@fsclaw.com
Alisa Lipski
Bar No. 278710
GOLDSTEIN & LIPSKI, PLLC
1177 West Loop South, Suite 400
Houston, TX 77027
Telephone: (713) 877-1515
Facsimile: (713) 877-1737
Email: alipski@gliplaw.com
Benedict O’Mahoney
Bar No.152447
TERRA LAW
177 Park Avenue, Third Floor
San Jose, California 95113
Telephone: 408-299-1200
Facsimile: 408-998-4895
Email: bomahoney@terralaw.com
Of Counsel:
Edward Goldstein
GOLDSTEIN & LIPSKI, PLLC
1177 West Loop South, Suite 400
Houston, TX 77027
Telephone: (713) 877-1515
Facsimile: (713) 877-1737
Email: egoldstein@gliplaw.com
Attorneys for Plaintiff
SOFTVAULT SYSTEMS, INC.
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25
26
27
28
26
1
2
3
4
5
6
7
8
9
10
11
12
/s/ Benjamin M. Stern
Matthew P. Vafidis (California Bar No.
103578)
Holland & Knight LLP
50 California Street, Suite 2800
San Francisco, CA 94111
Tel: (415) 743-6900
Fax: (415) 743-6910
matthew.vafidis@hklaw.com
Joshua C. Krumholz (pro hac vice)
Benjamin Stern (pro hac vice)
J. Mitchell Herbert, Jr. (pro hac vice)
Holland & Knight LLP
10 St. James Ave.
Boston, MA 02116
Tel: (617) 523-2700
Fax: (617) 523-6850
joshua.krumholz@hklaw.com
benjamin.stern@hklaw.com
mitchell.herbert@hklaw.com
Attorneys for Defendant
CA, INC.
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24
25
26
27
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