Hariguchi v. Netlogic Microsystems, Inc. et al, No. 4:2010cv02203 - Document 36 (N.D. Cal. 2010)
Court Description: ORDER GRANTING 33 Stipulation filed by Netlogic Microsystems, Inc., Integrated Device Technology, Inc., Yoichi Hariguchi. Signed by Judge Beeler on 11/18/10. (lblc2, COURT STAFF) (Filed on 11/22/2010)
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Hariguchi v. Netlogic Microsystems, Inc. et al Doc. 36 1 STUART C. CLARK (SBN 124152) clark@carrferrel1.com 2 CHRISTINE S. WATSON (SBN 218006) cwatson@carrferrell.com 3 CARR & FERRELL LLP 2200 Geng Road 4 Palo Alto, California 94303 Telephone: (650) 812-3400 5 Facsimile: (650) 812-3444 6 Attorneys for plaintiff and counterclaim defendant YOICHI HARIGUCHI 7 H. MARK LYON (SBN 162061) 8 MLyon@gibsondunn.com 9 STUART M. ROSENBERG (SBN 239926) SRosenberg@gibsondunn.com 10 GIBSON, DUNN & CRUTCHER LLP 1881 Page Mill Road 11 Palo Alto, California 94304 12 Telephone: (650) 849-5300 Facsimile: (650) 849-5333 13 Attorneys for Defendants and Counterclaimants 14 NETLOGIC MICROSYSTEMS, INC., and INTEGRATED DEVICE TECHNOLOGY, INC. 15 16 UNITED STATES DISTRICT COURT 17 NORTHERN DISTRICT OF CALIFORNIA 18 OAKLAND DIVISION 19 20 YOICHI HARIGUCHI, an individual, 21 22 Case No.4: 10-cv-02203-SBA Plaintiff, STIPULATED PROTECTIVE ORDER. v. 23 NETLOGIC MICROSYSTEMS, INC., a Delaware corporation, and INTEGRATED 24 DEVICE TECHNOLOGY, INC., a Delaware corporation, 25 Defendants. 26 11--------------------1 27 AND RELATED CROSS ACTION 28 {004 78788v1} -1STIPULATED PROTECTIVE ORDER. Dockets.Justia.com 1 1. 2 Disclosure and discovery activity in this action are likely to involve production of PURPOSES AND LIMITATIONS 3 confidential, proprietary, or private information for which special protection from public disclosure 4 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 5 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 6 Order. The parties acknowledge that this Order does not confer blanket protections on all 7 disclosures or responses to discovery and that the protection it affords from public disclosure and 8 use extends only to the limited information or items that are entitled to confidential treatment under 9 the applicable legal principles. The parties further acknowledge, as set forth in Section 12.3, below, 10 that this Stipulated Protective Order does not entitle them to file confidential information under 11 seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that 12 will be applied when a party seeks permission from the court to file material under seal. 13 2. DEFINITIONS 14 2.1 Challenging Party: a Party or Non-Party that challenges the designation of 15 information or items under this Order. 16 2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is 17 generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 18 Civil Procedure 26(c). 19 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well 20 as their support staff). 2.4 Designating Party: a Party or Non-Party that designates information 21 or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL, " 22 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL- 23 SOURCE CODE." 24 2.5 Disclosure or Discovery Material: all items or information, regardless of the medium 25 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 26 transcripts, and tangible things), that are produced or generated in disclosures or responses to 27 discovery in this matter. 28 {00478788v1} 2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to -2- STIPULATED PROTECTIVE ORDER. 1 the litigation who has been retained by a Party or its counsel to serve as an expert witness or as a 2 consultant in this action. 3 4 2.7 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another 5 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less 6 restrictive means. 7 2.8 "HIGHLY CONFIDENTIAL - SOURCE CODE" Information of Items: extremely 8 sensitive "Confidential Information or Items" representing computer code and associates comments 9 and revision histories, formulas, engineering specifications, or schematics that define or otherwise 10 describe in detail the algorithms or structure of software or hardware designs, disclosure of which to 11 another Party or Non-Party would create a substantial risk of serious harm that could not be avoided 12 by less restrictive means. 13 2.9 House Counsel: attorneys who are employees of a party to this action. House 14 Counsel does not include Outside Counsel of Record or any other outside counsel. 15 2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 16 entity not named as a Party to this action. 17 2.11 Outside Counsel of Record: attorneys who are not employees of a party to this action 18 but are retained to represent or advise a party to this action and have appeared in this action on 19 behalf of that party or are affiliated with a law firm which has appeared on behalf of that party. 20 21 22 2.12 Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs). 2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 23 Material in this action. 24 2.14 Professional Vendors: persons or entities that provide litigation support services 25 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 26 storing, or retrieving data in any form or medium) and their employees and subcontractors. 27 2.15 Protected Material: any Disclosure or Discovery Material that is designated as 28 {00478788v1} -3- STIPULATED PROTECTIVE ORDER. 1 "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY 2 3 CONFIDENTIAL - SOURCE CODE." 2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a 4 Producing Party. 5 3. 6 The protections conferred by this Stipulation and Order cover not only Protected Material SCOPE 7 (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all 8 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 9 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 10 However, the protections conferred by this Stipulation and Order do not cover the following 11 information: (a) any information that is in the public domain at the time of disclosure to a 12 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 13 result of publication not involving a violation of this Order, including becoming part of the 14 public record through trial or otherwise; and (b) any information lawfully known to the 15 Receiving Party prior to the disclosure and with no direct or indirect obligation of 16 confidentiality to the Designating Party, or lawfully obtained by the Receiving Party after the 17 disclosure from a source who obtained the information lawfully and under no obligation of 18 confidentiality to the Designating Party. Any use of Protected Material at trial shall be governed 19 by a separate agreement or order. 20 Notwithstanding the foregoing, in the event of a dispute over the propriety of a designation, 21 the parties must continue to afford the material in question the level of protection to which it is 22 entitled under the Designating Party's designation until such time as the dispute is resolved in 23 accordance with Section 6 below. 24 4. 25 Even after final disposition of this litigation, the confidentiality ob ligations imposed by this DURATION 26 Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 27 otherwise directs. Final disposition shall be deemed to be the later of(1) dismissal of all claims and 28 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion {00478788v1} -4STIPULATED PROTECTIVE ORDER. 1 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 2 time limits for filing any motions or applications for extension of time pursuant to applicable law. 3 5. DESIGNATING PROTECTED MATERIAL 4 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or 5 Non-Party that designates information or items for protection under this Order must take care to 6 limit any such designation to specific material that qualifies under the appropriate standards. To the 7 extent it is practical to do so, the Designating Party must designate for protection only those 8 parts of material, documents, items, or oral or written communications that qualify - so that other 9 portions of the material, documents, items, or communications for which protection is not 10 warranted are not swept unjustifiably within the ambit of this Order. 11 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown 12 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 13 encumber or retard the case development process or to impose unnecessary expenses and burdens 14 on other parties) expose the Designating Party to sanctions. 15 If it comes to a Designating Party's attention that information or items that it designated for 16 protection do not qualify for protection at all or do not qualify for the level of protection initially 17 asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the 18 mistaken designation. 19 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 20 (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 21 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 22 designated before the material is disclosed or produced. 23 Designation in conformity with this Order requires: 24 (a) for information in documentary form (e.g., paper or electronic documents, but 25 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 26 affix the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES 27 ONLY," or "HIGHLY CONFIDENTIAL - SOURCE CODE" to each page that contains protected 28 material. If only a portion or portions of the material on a page qualifies for protection, the {00478788v1} -5STIPULATED PROTECTIVE ORDER. 1 Producing Party also must clearly identify the protected portiones) (e.g., by making appropriate 2 3 markings in the margins). A Party or Non-Party that makes original documents or materials available for inspection 4 need not designate them for protection until after the inspecting Party has indicated which material 5 it would like copied and produced. During the inspection and before the designation, all of the 6 material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL - 7 ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants 8 copied and produced, the Producing Party must detennine which documents, or portions thereof, 9 qualify for protection under this Order. Then, before producing the specified documents, the 10 Producing Party must affix the appropriate legend ("CONFIDENTIAL," "HIGHLY 11 CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL - SOURCE 12 CODE") to each page that contains Protected Material. If only a portion or portions of the material 13 on a page qualifies for protection, the Producing Party also must clearly identify the protected 14 portiones) (e.g., by making appropriate markings in the margins) and must specify, for each portion, 15 the level of protection being asserted. 16 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the 17 Designating Party identify on the record, before the close of the deposition, hearing, or other 18 proceeding, all protected testimony and specify the level of protection being asserted. When it is 19 impractical to identify separately each portion of testimony that is entitled to protection and it 20 appears that substantial portions of the testimony may qualify for protection, the Designating 21 Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a 22 right to have up to 21 days to identify the specific portions of the testimony as to which 23 protection is sought and to specify the level of protection being asserted. Only those portions of 24 the testimony that are appropriately designated for protection within the 21 days shall be covered 25 by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may 26 specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 27 entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL- 28 ATTORNEYS' EYES ONLY." {00478788v1} -6STIPULATED PROTECTIVE ORDER. 1 Parties shall give the other parties notice if they reasonably expect a deposition, hearing, 2 or other proceeding to include Protected Material so that the other parties can ensure that only 3 authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" 4 (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 5 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 6 -ATTORNEYS' EYES ONLY" 7 Transcripts containing Protected Material shall have an obvious legend on the title page 8 that the transcript contains Protected Material, and the title page shall be followed by a list of all 9 pages (including line numbers as appropriate) that have been designated as Protected 10 Material and the level of protection being asserted by the Designating Party. The Designating 11 Party shall inform the court reporter of these requirements. Any transcript that is prepared before 12 the expiration of a 21-day period for designation shall be treated during that period as if it had 13 been designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" in its entirety 14 unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as 15 actually designated.(c) for information produced in some form other than documentary and 16 for any other tangible items, that the Producing Party affix in a prominent place on the exterior of 17 the container or containers in which the information or item is stored the legend 18 "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or 19 "HIGHLY CONFIDENTIAL - SOURCE CODE." If only a portion or portions of the information 20 or item warrant protection, the Producing Party, to the extent practicable, shall identify the 21 22 protected portiones) and specify the level of protection being asserted. 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 23 designate qualified information or items does not, standing alone, waive the Designating Party's 24 right to secure protection under this Order for such material. Upon timely correction of a 25 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 26 in accordance with the provisions of this Order. 27 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 28 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of {00478788v1} -7- STIPULATED PROTECTIVE ORDER. 1 confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality 2 designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 3 burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 4 challenge a confidentiality designation by electing not to mount a challenge promptly after the 5 original designation is disclosed. 6 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process 7 by providing written notice of each designation it is challenging and describing the basis for each 8 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 9 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 10 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 11 begin the process by conferring directly (in voice to voice dialogue; other forms of communication 12 are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging 13 Party must explain the basis for its belief that the confidentiality designation was not proper and 14 must give the Designating Party an opportunity to review the designated material, to reconsider the 15 circumstances, and, ifno change in designation is offered, to explain the basis for the chosen 16 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 17 has engaged in this meet and confer process first or establishes that the Designating Party is 18 unwilling to participate in the meet and confer process in a timely manner. 19 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 20 intervention, the Designating Party shall file and serve a motion to retain confidentiality under Civil 21 Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of the 22 initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process 23 will not resolve their dispute, whichever is earlier. Each such motion must be accompanied by a 24 competent declaration affirming that the movant has complied with the meet and confer 25 requirements imposed in the preceding paragraph. Failure by the Designating Party to make such a 26 motion including the required declaration within 21 days (or 14 days, if applicable) shall 27 automatically waive the confidentiality designation for each challenged designation. In addition, the 28 Challenging Party may file a motion challenging a confidentiality designation at any time if there is {00478788v1} -8STIPULATED PROTECTIVE ORDER. 1 good cause for doing so, including a challenge to the designation of a deposition transcript or any 2 portions thereof. Any motion brought pursuant to this provision must be accompanied by a 3 competent declaration affirming that the movant has complied with the meet and confer 4 requirements imposed by the preceding paragraph. 5 The burden of persuasion in any such challenge proceeding shall be on the Designating 6 Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 7 unnecessary expenses and burdens on other parties) may expose the Challenging Party to sanctions. 8 Unless the Designating Party has waived the confidentiality designation by failing to file a motion 9 to retain confidentiality as described above, all parties shall continue to afford the material in 10 question the level of protection to which it is entitled under the Producing Party's designation until 11 the court rules on the challenge. 12 7. ACCESS TO AND USE OF PROTECTED MATERIAL 13 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 14 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 15 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 16 the categories of persons and under the conditions described in this Order. When the litigation has 17 been terminated, a Receiving Party must comply with the provisions of section 13 below (FINAL 18 DISPOSITION). 19 20 21 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure manner that ensures that access is limited to the persons authorized under this Order. 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered 22 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 23 24 information or item designated "CONFIDENTIAL" only to: (a) the Receiving Party's Outside Counsel of Record in this action, as well as employees 25 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 26 for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" that is 27 attached hereto as Exhibit A; 28 {00478788v1} (b) the officers, directors, and employees (including House Counsel) of the Receiving -9STIPULATED PROTECTIVE ORDER. 1 Party to whom disclosure is reasonably necessary for this litigation and who have signed the 2 "Acknowledgment and Agreement to Be Bound" (Exhibit A); 3 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 4 reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement 5 to Be Bound" (Exhibit A); 6 (d) the court and its personnel; 7 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 8 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 9 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 10 (f) during their depositions, witnesses in the action to whom disclosure is reasonably 11 necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), 12 unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed 13 deposition testimony or exhibits to depositions that reveal Protected Material must be separately 14 bound by the court reporter and may not be disclosed to anyone except as permitted under this 15 16 17 18 19 20 Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information. 7.3 Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a 21 Receiving Party may disclose any information or item designated "CONFIDENTIAL - 22 ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" only to: 23 (a) the Receiving Party's Outside Counsel of Record in this action, as well as employees 24 of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information 25 for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" that is 26 attached hereto as Exhibit A; 27 28 {00478788v1} (b) with respect to information and items designated "HIGHLY CONFIDENTIALATTORNEYS' EYES ONLY," House Counsel of the Receiving Party to whom disclosure is -10STIPULATED PROTECTIVE ORDER. 1 reasonably necessary for this litigation, and who have signed the "Acknowledgement and 2 Agreement to Be Bound" (Exhibit A). House Counsel shall not have access to any information or 3 items designated "HIGHLY CONFIDENTIAL - SOURCE CODE," unless such access is ordered 4 5 6 by the Court or otherwise agreed to in writing by the Designating Party. (c) Experts (as defined in this Order) of the Receiving Party (1) to whom disclosure is reasonably necessary for this litigation, (2) who have signed the "Acknowledgment and Agreement 7 to Be Bound" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a) below 8 have been followed; 9 (d) the court and its personnel; 10 (e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 11 Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have 12 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); 13 (f) the author or recipient of a document containing the information or a custodian or 14 other person who otherwise possessed or knew the information. 15 7.4 Procedures for Approving or Objecting to Disclosure of "HIGHLY 16 CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE 17 CODE" Information or Items to Experts. 18 (a) Unless otherwise ordered by the Court or agreed to in writing by the Designating 19 Party, a Party that seeks to disclose to an Expert (as defined in this order) any information or item 20 that has been designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or 21 "HIGHLY CONFIDENTIAL - SOURCE CODE" pursuant to paragraph 7.3(c) first must make a 22 written request to the Designating Party that (1) identifies the general categories of "HIGHLY 23 CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE 24 CODE" information that the Receiving Party seeks permission to disclose to the Expert, (2) sets 25 forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches 26 a copy of the Expert's current resume, (4) identifies the Expert's current employer(s), (5) 27 identifies each person or entity from whom the Expert has received compensation or funding 28 {00478788v1} for work in his or her areas of expertise or to whom the expert has provided professional -11- STIPULATED PROTECTIVE ORDER. 1 services, including in connection with a litigation, at any time during the preceding five years, 1 2 and (6) identifies (by name and number of the case, filing date, and location of court) any litigation 3 in connection with which the Expert has offered expert testimony including through a declaration, 4 report, or testimony at a deposition or trial, during the preceding five years. 5 (b) A Party that makes a request and provides the infoDnation specified in the preceding 6 respective paragraphs may disclose the subject Protected Material to the identified Expert 7 unless, within 14 days of delivering the request, the Party receives a written objection from the 8 Designating Party. Any such objection must set forth in detail the grounds on which it is based. 9 (c) A Party that receives a timely written objection must meet and confer with the 10 Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement 11 within seven days of the written objection. If no agreement is reached, the Party seeking to 12 make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 (and in 13 compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to do 14 so. Any such motion must describe the circumstances with specificity, set forth in detail the 15 reasons why disclosure to the Expert is reasonably necessary, assess the risk of harm that the 16 disclosure would entail, and suggest any additional means that could be used to reduce that risk. 17 In addition, any such motion must be accompanied by a competent declaration describing the 18 parties' efforts to resolve the matter by agreement (i.e., the extent and the content of the meet 19 and confer discussions) and setting forth the reasons advanced by the Designating Party for its 20 refusal to approve the disclosure. 21 In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden 22 of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) 23 outweighs the Receiving Party's need to disclose the Protected Material to the Expert. 24 25 26 27 28 {00478788v1} 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. -12STIPULATED PROTECTIVE ORDER. 1 8. SOURCE CODE 2 (a) To the extent production of source code becomes necessary in this case, a 3 Producing Party may designate source code as "HIGHLY CONFIDENTIAL - SOURCE CODE" 4 if it comprises or includes confidential, proprietary or trade secret source code. 5 (b) Protected Material designated as "HIGHLY CONFIDENTIAL - SOURCE CODE" 6 shall be subject to all of the protections afforded to "HIGHLY CONFIDENTIAL - 7 ATTORNEYS' EYES ONLY" information and may be disclosed only to the individuals to whom 8 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" information may be disclosed, as 9 set forth in Paragraphs 7.3 and 7.4, with the exception of House Counsel. 10 11 (c) Any source code produced in discovery shall be made available for inspection, in a format allowing it to be reasonably reviewed and searched, during normal business hours or at 12 other mutually agreeable times, at an office of the Producing Party's counselor another mutually 13 agreed upon location. The source code shall be made available for inspection on a secured 14 computer in a secured room without Internet access or network access to other computers, 15 and the Receiving Party shall not copy, remove, or otherwise transfer any portion of the source 16 code onto any recordable media or recordable device. The Producing Party may visually 17 monitor the activities of the Receiving Party's representatives during any source code review, 18 but only to ensure that there is no unauthorized recording, copying, or transmission of the source 19 code. 20 21 (d) The Receiving Party may request paper copies of limited portions of source code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or other 22 papers, or for deposition or trial, but shall not request paper copies for the purpose of reviewing 23 the source code other than electronically as set forth in paragraph (c) in the first instance. 24 The Producing Party shall provide all such source code in paper form, including bates numbers 25 and the label "HIGHLY CONFIDENTIAL - SOURCE CODE." The Producing Party may 26 challenge the amount of source code requested in hard copy form pursuant to the dispute 27 resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the 28 {00478788v1} "Challenging Party" and the Receiving Party is the "Designating Party" for purposes of dispute -13STIPULATED PROTECTIVE ORDER. 1 resolution. 2 (e) The Receiving Party shall maintain a record of any individual who has inspected 3 any portion of the source code in electronic or paper form. The Receiving Party shall maintain all 4 paper copies of any printed portions of the source code in a secured, locked area. The 5 Receiving Party shall not create any electronic or other images of the paper copies and shall not 6 convert any of the information contained in the paper copies into any electronic format. The 7 Receiving Party shall only make additional paper copies if such additional copies are (1) necessary 8 to prepare court filings, pleadings, or other papers (including a testifying expert's expert 9 report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its case. 10 Any paper copies used during a deposition shall be retrieved by the Producing Party at the end of 11 each day and must not be given to or left with a court reporter or any other unauthorized 12 individual. 13 9. 14 PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 15 If a Party is served with a subpoena or a court order issued in other litigation that compels 16 disclosure of any information or items designated in this action as "CONFIDENTIAL," "HIGHLY 17 CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL - SOURCE 18 CODE," that Party must: 19 (a) promptly notify in writing the Designating Party. Such notification shall include a 20 copy of the subpoena or court order; 21 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 22 other litigation that some or all of the material covered by the subpoena or order is subject to this 23 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 24 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 25 Designating Party whose Protected Material may be affected. 2 26 27 28 {00478788v1} The purpose of imposing these duties is to alert the interested parties to the existence ofthis Protective Order and to afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from which the subpoena or order issued. 2 -14STIPULATED PROTECTIVE ORDER. 1 If the Designating Party timely seeks a protective order, the Party served with the subpoena 2 or court order shall not produce any information designated in this action as "CONFIDENTIAL," 3 "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL 4 SOURCE CODE" before a determination by the court from which the subpoena or order issued, 5 unless the Party has obtained the Designating Party's permission. The Designating Party shall bear 6 the burden and expense of seeking protection in that court of its confidential material - and nothing 7 in these provisions should be construed as authorizing or encouraging a Receiving Party in this 8 action to disobey a lawful directive from another court. 9 10. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION (a) The terms of this Order are applicable to information produced by a Non-Party in 10 11 12 this action and designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' 13 EYES ONLY," or "HIGHLY CONFIDENTIAL - SOURCE CODE." Such information produced 14 by Non-Parties in connection with this litigation is protected by the remedies and relief provided by 15 this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from 16 seeking additional protections. 17 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 18 Party's confidential information in its possession, and the Party is subject to an agreement with the 19 Non-Party not to produce the Non-Party's confidential information, then the Party shall: promptly notify in writing the Requesting Party and the Non-Party that some 20 1. 21 or all of the information requested is subject to a confidentiality agreement with a 22 Non-Party; 23 2. 24 Order in this litigation, the relevant discovery request(s), and a reasonably specific 25 description of the information requested; and 26 3. 27 28 {00478788v1} (c) promptly provide the Non-Party with a copy of the Stipulated Protective make the information requested available for inspection by the Non-Party. If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the -15STIPULATED PROTECTIVE ORDER. 1 Non-Party's confidential infonnation responsive to the discovery request. If the Non-Party timely 2 seeks a protective order, the Receiving Party shall not produce any infonnation in its possession or 3 control that is subject to the confidentiality agreement with the Non-Party before a detennination by 4 the court. 3 Absent a court order to the contrary, the Non-Party shall bear the burden and expense of 5 seeking protection in this court of its Protected Material. 6 11. 7 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 8 Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 9 the Receiving Party must immediately (a) notify in writing the Designating Party of the 10 unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected 11 Material, (c) infonn the person or persons to whom unauthorized disclosures were made of all the 12 tenns of this Order, and (d) request such person or persons to execute the "Acknowledgment and 13 Agreement to Be Bound" that is attached hereto as Exhibit A. 14 12. 15 16 INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL When a Producing Party gives notice to Receiving Parties that certain inadvertently 17 produced material is subject to a claim of privilege or other protection, the obligations of the 18 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(S)(B). This provision 19 is not intended to modify whatever procedure may be established in an e-discovery order that 20 provides for production without prior privilege review. Pursuant to Federal Rule of Evidence S02(d) 21 and (e), insofar as the parties reach an agreement on the effect of disclosure of a communication or 22 infonnation covered by the attorney-client privilege or work product protection, the parties may 23 incorporate their agreement in the stipulated protective order submitted to the court. 24 13. MISCELLANEOUS 25 13.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 26 27 28 {00478788v1} The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. -16STIPULATED PROTECTIVE ORDER. 1 seek its modification by the court in the future. 2 13.2 Right to Assert Other Objections. By stipulating to the entry ofthis Protective Order 3 no Party waives any right it otherwise would have to object to disclosing or producing any 4 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 5 Party waives any right to object on any ground to use in evidence of any of the material covered by 6 this Protective Order. 7 8 13.3 Filing Protected Material. Without written permission from the Designating Party or a court order secured after appropriate notice to all interested persons, a Party may not file in the 9 public record in this action any Protected Material. A Party that seeks to file under seal any 10 Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed 11 under seal pursuant to a court order authorizing the sealing of the specific Protected Material at 12 issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing 13 that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled 14 to protection under the law. If a Receiving Party's request to file Protected Material under seal 15 pursuant to Civil Local Rule 79-5(d) is denied by the court, then the Receiving Party may file the 16 Protected Material in the public record pursuant to Civil Local Rule 79-5(e) unless otherwise 17 instructed by the court. 18 14. FINAL DISPOSITION. Within 60 days after the final disposition of this action, as 19 defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing 20 Party or destroy such material. As used in this subdivision, "all Protected Material" includes all 21 copies, abstracts, compilations, summaries, and any other format reproducing or capturing any of 22 the Protected Material. Whether the Protected Material is returned or destroyed, the Receiving Party 23 must submit a written certification to the Producing Party (and, ifnot the same person or entity, to 24 the Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 25 the Protected Material that was returned or destroyed and (2)affirms that the Receiving Party has 26 not retained any copies, abstracts, compilations, summaries or any other format reproducing or 27 capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 28 retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, {00478788v1} -17- STIPULATED PROTECTIVE ORDER. 1 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 2 product, and consultant and expert work product, even if such materials contain Protected Material. 3 Any such archival copies, that contain or constitute Protected Material remain subject to this 4 Protective Order as set forth in Section 4 (DURATION). 5 6 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 7 8 Dated: November 12,.,2010 CARR & FERRELL LLP 9 10 By: 11 _ STUART C. CLARK CHRISTINE S. WATSON 12 Attorneys for Plaintiff YOICHI HARIGUCHI 13 14 15 Dated: November} 3 ,2010 16 GIBSON, DUNN & CRUTCHER LLP 17 18 19 20 __ H.MARKLYON STUART M. ROSENBERG Attorneys for Defendants and Cross Complainants NETLOGIC MICROSYSTEMS, INC. and INTEGRATED DEVICE TECHNOLOGY, INC. 21 PURSUANT TO STIPULATION, IT IS SO ORDERED. S H ER N F D IS T IC T O R 28 {00478788v1} FO u LI a Judge L RT 27 ERED O ORD SAUNDRA BROWN ARMSTRONG r UNITED STATES DISTRICTBJUDGE rel eele NO 26 IT IS S A 25 UNIT ED 24 ISTRIC ES D TC AT T RT U O 23 DATED: November 18,2010 R NIA 22 -18STIPULATED PROTECTIVE ORDER. C 1 EXHIBIT A ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 2 I, 3 4 [print or type full name], of _ [print or type full address], declare under penalty of perjury that I have read in its entirety and 5 understand the Stipulated Protective Order that was issued by the United States District Court for 6 the Northern District of California on [date] in the case of Hariguchi v. NetLogic Microsystems et 7 Case No.4: IO-cv-02203-SBA. I agree to comply with and to be bound by all the terms of this 8 Stipulated Protective Order and I understand and acknowledge that failure to so comply could 9 expose me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not 10 disclose in any manner any information or item that is subject to this Stipulated Protective Order to 11 12 any person or entity except in strict compliance with the provisions ofthis Order. I further agree to submit to the jurisdiction of the United States District Court for the 13 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective 14 Order, even if such enforcement proceedings occur after termination of this action. 15 I hereby appoint [print or type full name] of 16 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ [print or type full address and telephone number] 17 as my California agent for service of process in connection with this action or any proceedings 18 related to enforcement of this Stipulated Protective Order. 19 20 21 Date: - - - - - - - - - - - - - - - 22 City and State where sworn and signed: 23 Printed name: 24 [printed name] 25 Signature: _ [signature] 26 27 28 {00478788v1} -19STIPULATED PROTECTIVE ORDER.
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