eBay Inc. et al v. PartsRiver, Inc., No. 4:2010cv04947 - Document 91 (N.D. Cal. 2011)

Court Description: ORDER Granting (356 in 4:11-cv-01548-CW), (60 in 4:11-cv-02284-CW), (89 in 4:10-cv-04947-CW), (52 in 4:11-cv-01398-CW) Stipulation And Joint Motion For Entry Of Protective Order. Signed by Judge Claudia Wilken on 9/13/2011. (ndr, COURT STAFF) (Filed on 9/13/2011)
Download PDF
eBay Inc. et al v. PartsRiver, Inc. 1 Doc. 91 [JOINT FILING — SEE SIGNATURE PAGE FOR LIST OF COUNSEL] 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 OAKLAND DIVISION 11 ) ) ) Plaintiffs and Counterclaim-Defendants, ) ) vs. ) ) Kelora Systems, LLC, ) ) Defendant and Counterclaim-Plaintiff. ) ) ) Cabela’s Inc., ) ) Plaintiff and Counterclaim-Defendant, ) ) vs. ) ) Kelora Systems, LLC, ) ) Defendant and Counterclaim-Plaintiff. ) ) eBay Inc. and Microsoft Corporation, 12 13 14 15 16 17 18 19 20 21 No. 4:10-cv-4947-CW-LB (filed Nov. 2, 2010) STIPULATION AND JOINT MOTION FOR ENTRY OF PROTECTIVE ORDER No. 4:11-cv-1398-CW-LB (filed Mar. 23, 2011) (related case) 22 23 24 25 26 27 28 STIPULATION AND JOINT MOTION Dockets.Justia.com 1 ) ) ) Plaintiff and Counterclaim-Defendant, ) ) vs. ) ) Target Corporation; OfficeMax Incorporated; ) Rockler Companies, Inc.; 1-800-Flowers.com, ) Inc.; Amazon.com, Inc.; Dell, Inc.; Office ) Depot, Inc.; Newegg Inc.; Costco Wholesale ) Corporation; Hewlett-Packard Company; ) CircuitCity.com Inc.; Audible, Inc.; and ) Zappos.com, Inc., ) ) Defendants and Counterclaim-Plaintiffs. ) ) OfficeMax Incorporated, ) ) Third-Party Plaintiff, ) ) vs. ) ) Adobe Systems Incorporated, ) ) Third-Party Defendant. ) ) ) Nebraska Furniture Mart, Inc., ) ) Plaintiff and Counterclaim-Defendant, ) ) vs. ) ) Kelora Systems, LLC, ) ) Defendant and Counterclaim-Plaintiff. ) ) Kelora Systems, LLC, 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 No. 4:11-cv-1548-CW-LB (filed Nov. 8, 2010) (related case) No. 4:11-cv-2284-CW-LB (filed Feb. 3, 2011) (related case) 20 Pursuant to Magistrate Judge Beeler’s order (ECF 348) resolving the parties’ disputes 21 22 related to the protective order (ECF 330) Plaintiff Kelora Systems LLC (“Kelora”) and 23 Defendants1, eBay Inc.; Microsoft Corporation; Cabela’s Inc.; Target Corporation; OfficeMax 24 Incorporated; Rockler Companies, Inc.; 1-800-Flowers.com, Inc.; Amazon.com, Inc.; Dell, Inc.; 25 Office Depot, Inc.; Newegg Inc.; Costco Wholesale Corporation; Hewlett-Packard Company; 26 CircuitCity.com Inc.; Audible, Inc.; Zappos.com, Inc.; and Nebraska Furniture Mart, Inc. hereby 27 1 “Defendants” includes declaratory judgment plaintiffs accused of infringement. 28 2 STIPULATION AND JOINT MOTION 1 submit a stipulated protective order. Kelora will seek relief from Magistrate Judge Beeler’s 2 rulings regarding patent prosecution bar provisions in the Order Re Discovery Letter Re 3 Protective Order, ECF No. 348, by a motion to be filed on the date hereof. Defendants and, 4 subject to Judge Wilken’s ruling on that motion by Kelora, Kelora move the court to enter the 5 attached protective order. 6 7 Dated: September 12, 2011 8 By: /s/ Robert D. Becker Robert D. Becker (Bar No. 160648) <rbecker@manatt.com> Ronald S. Katz (Bar No. 85713) <rkatz@manatt.com> Shawn G. Hansen (Bar No. 197033) <shansen@manatt.com> MANATT, PHELPS & PHILLIPS, LLP 1001 Page Mill Road, Building 2 Palo Alto, CA 94304-1006 Telephone: (650) 812-1300 Facsimile: (650) 213-0260 9 10 11 12 13 By: /s/ Richard A. Cederoth David T. Pritikin (pro hac vice) <dpritikin@sidley.com> Richard A. Cederoth (pro hac vice) <rcederoth@sidley.com> SIDLEY AUSTIN LLP One S. Dearborn Street Chicago, Illinois 60603 Telephone: (312) 853-7000 Facsimile: (312) 853-7036 17 Theodore W. Chandler (Bar No. 219456) <tchandler@sidley.com> Aaron M. Farber (Bar No. 270851) <afarber@sidley.com> SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 18 <Kelora-Microsoft-eBay@sidley.com> 19 Counsel for Plaintiff and CounterclaimDefendant eBay Inc. 14 15 16 Counsel for Plaintiff and CounterclaimDefendant KELORA SYSTEMS, LLC 20 21 22 23 24 25 26 27 28 3 STIPULATION AND JOINT MOTION 1 By: /s/ Richard A. Cederoth 2 David T. Pritikin (pro hac vice) <dpritikin@sidley.com> Richard A. Cederoth (pro hac vice) <rcederoth@sidley.com> SIDLEY AUSTIN LLP One S. Dearborn Street Chicago, Illinois 60603 Telephone: (312) 853-7000 Facsimile: (312) 853-7036 3 4 5 6 7 11 Theodore W. Chandler (Bar No. 219456) <tchandler@sidley.com> Aaron M. Farber (Bar No. 270851) <afarber@sidley.com> SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000 Los Angeles, California 90013 Telephone: (213) 896-6000 Facsimile: (213) 896-6600 12 <Kelora-Microsoft-eBay@sidley.com> 8 9 10 13 David E. Killough (Bar No. 110719) <davkill@microsoft.com> MICROSOFT CORPORATION One Microsoft Way, 8/2076 Redmond, Washington 98052 Telephone: (425) 703-8865 Facsimile: (425) 869-1327 14 15 16 17 18 Counsel for Plaintiff and CounterclaimDefendant Microsoft Corporation 19 20 21 22 23 24 25 26 27 28 4 STIPULATION AND JOINT MOTION 1 By: /s/ Wendy K. Akbar 2 Gregory P. Sitrick (pro hac vice) <gregory.sitrick@quarles.com> Wendy K. Akbar (pro hac vice) <wendy.akbar@quarles.com> QUARLES & BRADY LLP One Renaissance Square Two North Central Avenue Phoenix, Arizona 85004 Telephone: (602) 229-5200 Facsimile: (602) 420-5198 3 4 5 6 7 8 Jeffrey L. Fillerup (Bar No. 120543) <jfillerup@luce.com> LUCE, FORWARD, HAMILTON & SCRIPPS LLP Rincon Center II 121 Spear Street, Suite 200 San Francisco, California 94105 Telephone: (415) 356-4600 Facsimile: (415) 356-3881 9 10 11 12 Callie A. Bjurstrom (Bar No. 137816) <cbjurstrom@luce.com> LUCE, FORWARD, HAMILTON & SCRIPPS LLP 600 West Broadway, Suite 2600 San Diego, California 92101 Telephone: (619) 699-2586 Facsimile: (619) 645-5323 13 14 15 16 17 Attorneys for Plaintiff and CounterclaimDefendant Cabela’s Inc. 18 19 20 21 22 23 24 25 26 27 28 5 STIPULATION AND JOINT MOTION 1 By: /s/ Richard S. Zembek 2 Dan D. Davison (pro hac vice) <ddavison@fulbright.com> FULBRIGHT & JAWORSKI L.L.P. 2200 Ross Avenue, Suite 2800 Dallas, Texas 75201 Telephone: (214) 855-8000 Facsimile: (214) 855-8200 3 4 5 6 Richard S. Zembek (pro hac vice) <rzembek@fulbright.com> Daniel S. Leventhal (pro hac vice) <dleventhal@fulbright.com> FULBRIGHT & JAWORSKI L.L.P. Fulbright Tower 1301 McKinney, Suite 5100 Houston, Texas 77010 Telephone: (713) 651-5151 Facsimile: (713) 651-5246 7 8 9 10 11 12 Gilbert A. Greene (pro hac vice) <ggreene@fulbright.com> FULBRIGHT & JAWORSKI L.L.P. 600 Congress Avenue, Suite 2400 Austin, Texas 78701 Telephone: (512) 474-5201 Facsimile: (512) 536-4598 13 14 15 16 John A. O’Malley (Bar No. 101181) <jomalley@fulbright.com> Aaron D. Gopen (Bar No. 268451) <agopen@fulbright.com> FULBRIGHT & JAWORSKI L.L.P. 555 South Flower Street, 41st Floor Los Angeles, California 90071 Telephone: (213) 892-9200 Facsimile: (213) 892-9494 17 18 19 20 21 Attorneys for Defendants and Counterclaim-Plaintiffs Target Corporation; Amazon.com, Inc.; Office Depot, Inc.; Costco Wholesale Corporation; Hewlett-Packard Company; Audible, Inc.; and Zappos.com, Inc. 22 23 24 25 26 27 28 6 STIPULATION AND JOINT MOTION 1 By: /s/ John S. Letchinger 2 John S. Letchinger (pro hac vice) <letchinger@wildman.com> Douglas S. Rupert (pro hac vice) <rupert@wildman.com> E. Tim Walker (pro hac vice) <walker@wildman.com> WILDMAN, HARROLD, ALLEN & DIXON LLP 225 West Wacker Drive, Suite 2800 Chicago, Illinois 60606 Telephone: (312) 201-2000 Facsimile: (312) 201-2555 3 4 5 6 7 8 Clinton J. McCord (Bar No. 204749) <mccord@wildman.com> WILDMAN, HARROLD, ALLEN & DIXON LLP 9665 Wilshire Boulevard, Suite 200 Beverly Hills, California 90212 Telephone: (310) 860-8700 Facsimile: (310) 860-3800 9 10 11 12 Attorneys for Defendant and CounterclaimPlaintiff OfficeMax Incorporated 13 14 15 By: /s/ Niall A. MacLeod 16 Niall A. MacLeod (pro hac vice) <niall.macleod@btlaw.com> Aaron A. Myers (pro hac vice) <aaron.myers@btlaw.com> BARNES & THORNBURG LLP 225 South Sixth Street, Suite 2800 Minneapolis, Minnesota 55402 Telephone: (612) 333-2111 Facsimile: (612) 333-6798 17 18 19 20 21 Stephen R. Mick (Bar No. 131569) <smick@btlaw.com> BARNES & THORNBURG LLP 2049 Century Park East Los Angeles, California 90067 Telephone: (310) 284-3880 Facsimile: (310) 284-3894 22 23 24 25 Attorneys for Defendant and CounterclaimPlaintiff Rockler Companies, Inc. 26 27 28 7 STIPULATION AND JOINT MOTION 1 By: /s/ Catherine E. Hart 2 Vaibhav P. Kadaba (pro hac vice) <wkadaba@kilpatricktownsend.com> Catherine E. Hart (pro hac vice) <chart@kilpatricktownsend.com> KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309 Telephone: (404) 815-6500 Facsimile: (404) 815-6555 3 4 5 6 7 David B. Perry (State Bar No. 255925) <dperry@kilpatricktownsend.com> KILPATRICK TOWNSEND & STOCKTON LLP Two Embarcadero Center, Eighth Floor San Francisco, California 94111 Telephone: (415) 576-0200 Facsimile: (415) 576-0300 8 9 10 11 Attorneys for Defendant and CounterclaimPlaintiff 1-800-Flowers.com, Inc. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 STIPULATION AND JOINT MOTION 1 By: /s/ David S. Bloch 2 Kimball R. Anderson (pro hac vice) <kanderson@winston.com> Marlon E. Lutfiyya (pro hac vice) <mlutfiyya@winston.com> WINSTON & STRAWN LLP 35 West Wacker Drive Chicago, Illinois 60601 Telephone: (312) 558-5600 Facsimile: (312) 558-5700 3 4 5 6 7 Howard I. Shin (pro hac vice) <hshin@winston.com> WINSTON & STRAWN LLP 200 Park Avenue New York, New York 10166 Telephone: (212) 294-6700 Facsimile: (212) 294-4700 8 9 10 11 David S. Bloch (State Bar No. 184530) <dbloch@winston.com> WINSTON & STRAWN LLP 101 California Street San Francisco, California 94111 Telephone: (415) 591-1000 Facsimile: (415) 591-1400 12 13 14 15 16 Attorneys for Defendant and CounterclaimPlaintiff Dell, Inc. 17 18 19 20 21 22 23 24 25 26 27 28 9 STIPULATION AND JOINT MOTION 1 By: /s/ Kent E. Baldauf, Jr. 2 Kent E. Baldauf, Jr. (pro hac vice) <kbaldaufjr@webblaw.com> Bryan P. Clark (pro hac vice) <bclark@webblaw.com> THE WEBB LAW FIRM One Gateway Center 420 Ft. Duquesne Blvd., Suite 1200 Pittsburgh, Pennsylvania 15222 Telephone: (412) 471-8815 Facsimile: (412) 471-4094 3 4 5 6 7 8 Phillip F. Shinn (State Bar No. 112051) <pshinn@foxrothschild.com> FOX ROTHSCHILD LLP 235 Pine Street, Suite 1500 San Francisco, California 94104 Telephone: (415) 364-5558 Facsimile: (415) 391-4436 9 10 11 12 Attorneys for Defendant and CounterclaimPlaintiff Newegg Inc. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 STIPULATION AND JOINT MOTION 1 By: /s/ Sarah E. Barrows 2 Sarah E. Barrows (Bar No. 253278) <barrowss@gtlaw.com> GREENBERG TRAURIG, LLP 153 Townsend Street, 8th Floor San Francisco, California 94107 Telephone: (415) 655-1300 Facsimile: (415) 707-2010 3 4 5 6 Michael A. Nicodema (pro hac vice) <nicodemam@gtlaw.com> David M. Joyal (pro hac vice) <joyald@gtlaw.com> Barry J. Schindler (pro hac vice) <schindlerb@gtlaw.com> Douglas R. Weider (pro hac vice) <weider@gtlaw> GREENBERG TRAURIG, LLP 200 Park Avenue, P.O. Box 677 Florham Park, New Jersey 07932 Telephone: (973) 360-7900 Facsimile: (973) 301-8410 7 8 9 10 11 12 13 Mary-Olga Lovett (pro hac vice) <lovettm@gtlaw.com> GREENBERG TRAURIG, LLP 1000 Louisiana Street, Suite 1700 Houston, Texas 77002 Telephone: (713) 374-3500 Facsimile: (713) 374-3505 14 15 16 17 Attorneys for Defendant and CounterclaimPlaintiff CircuitCity.com Inc. 18 19 20 By: /s/ Ted G. Dane 21 Ted G. Dane (Bar No. 143195) <Ted.Dane@mto.com> Andrew W. Song (Bar No. 236588) <Andrew.Song@mto.com> MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, 35th Floor Los Angeles, California 90071 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 22 23 24 25 26 Attorneys for Plaintiff and CounterclaimDefendant Nebraska Furniture Mart, Inc. 27 28 11 STIPULATION AND JOINT MOTION 1 2 3 4 5 SIGNATURE ATTESTATION Pursuant to General Order No. 45(X)(B), I hereby certify that concurrence in the filing of this document has been obtained from each of the other signatories shown above. /s/ Robert D. Becker 6 CERTIFICATE OF SERVICE 7 8 9 10 11 The undersigned hereby certifies that on September 12, 2011, all counsel of record who are deemed to have consented to electronic service are being served, via the Court’s CM/ECF system pursuant to Civil L.R. 5-4 and General Order 45, with a copy of the foregoing STIPULATION AND JOINT MOTION FOR ENTRY OF PROTECTIVE ORDER. 12 13 /s/ Robert D. Becker 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 STIPULATION AND JOINT MOTION 1 2 EXHIBITS Ex. 1: Stipulated Protective Order 3 4 300711911.1 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 STIPULATION AND JOINT MOTION 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT 3 OAKLAND DIVISION 4 5 Kelora Systems, LLC, 6 7 8 Plaintiff, vs. Target Corp., et al., Defendants. 9 No. 4:11-cv-01548-CW (filed Nov. 8, 2010) No. 4:11-cv-01398-CW (filed Mar. 23, 2011) No. 4:11-cv-02284-CW (filed Feb. 3, 2011) No. 4:10-cv-04947-CW (filed Nov. 2, 2010) STIPULATION AND PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF CONFIDENTIAL DISCOVERY MATERIALS 10 11 Cabela’s, Inc., 12 13 14 Plaintiff, vs. Kelora Systems, LLC, Defendant. 15 16 17 Nebraska Furniture Mart, Inc., 18 19 20 Plaintiff, vs. Kelora Systems, LLC, Defendant. 21 22 23 eBay, Inc. and Microsoft Corporation, 24 25 26 27 Plaintiffs, vs. Kelora Systems, LLC, Defendant. 28 STIPULATION AND PROTECTIVE ORDER 1 The parties herein Kelora Systems, LLC (“Kelora”) and eBay, Inc., Microsoft 2 Corporation, Nebraska Furniture Mart, Inc., Cabela’s Inc., Target Corporation, OfficeMax 3 Incorporated, Rockler Companies, Inc., 1-800-Flowers.com, Inc., Amazon.com, Inc., Dell, Inc., 4 Office Depot, Inc., Newegg Inc., Costco Wholesale Corporation, Hewlett-Packard Company, 5 CircuitCity.com Inc., Audible, Inc., and Zappos.com, Inc. (collectively, “Alleged Infringers”) 6 have stipulated that certain information subject to discovery in this action may be claimed to be or 7 contain a trade secret or other confidential research, development, commercial, financial, or 8 strategic information. Unable to reach agreement on all protective provisions, the parties filed a 9 letter brief to the Court on August 11, 2011. ECF No. 330. In response, the Court issued its 10 Order Re Discovery Letter Re Protective Order, ECF No. 348, on August 29, 2011. Kelora will 11 seek relief from Magistrate Judge Beeler’s rulings regarding patent prosecution bar provisions in 12 the Order Re Discovery Letter Re Protective Order, ECF No. 348, by a motion to be filed on the 13 date hereof. Subject to Judge Wilken’s ruling on that motion by Kelora, in the interest of 14 permitting discovery to proceed without delay, the parties stipulate to provide access to and to 15 accept such information subject to the protective provisions hereinafter set forth. In view of these 16 stipulations, the Court finds that good cause exists for issuance of a protective order. Therefore, 17 pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, and consistent with the Court’s 18 Order Re Discovery Letter Re Protective Order, ECF No. 348, the Court hereby enters the 19 following Protective Order. 20 IT IS HEREBY ORDERED: 21 1. Scope. This Protective Order shall apply to all information, documents, testimony, 22 and/or things subject to discovery in this action (“Discovery Material”) which contains 23 proprietary, confidential, and/or commercially sensitive information and/or trade secrets, as well 24 as pleadings, written discovery requests and responses, testimony and other information, 25 documents, and/or things containing, reporting, or reflecting such information. As used herein, 26 “Producing Party” shall refer to any party, including the parties to this action and non-parties, 27 who discloses, makes available for inspection, and/or produces any Discovery Material in this 28 action. “Receiving Party” shall refer to the party to this action who receives Discovery Material 2 STIPULATION AND PROTECTIVE ORDER 1 from a Producing Party. “Protected Material” means any Discovery Material that is designated as 2 provided for in this Protective Order, as well as any information copied or extracted therefrom, as 3 well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or 4 presentations by parties or their counsel in Court or in other settings that might reveal such 5 information. 6 2. Designation. Any Producing Party may designate Discovery Material as set forth 7 herein as (a) CONFIDENTIAL subject to this Protective Order if it contains trade secret or other 8 confidential research, development, or commercial information within the scope of Rule 9 26(c)(1)(g); (b) CONFIDENTIAL-ATTORNEYS’ EYES ONLY subject to this Protective Order 10 if it contains particularly sensitive confidential information as defined below in Paragraph 5; 11 and/or (c) RESTRICTED CONFIDENTIAL-SOURCE CODE if it contains confidential, 12 proprietary and/or trade secret source code or technical design documentation. 13 3. Limits On Use Of Discovery Material. In the absence of written permission 14 from the Producing Party, Discovery Material designated CONFIDENTIAL, CONFIDENTIAL- 15 ATTORNEYS’ EYES ONLY, and/or RESTRICTED CONFIDENTIAL-SOURCE CODE: a) 16 Shall be protected from disclosure as specified herein, unless the Producing 17 Party consents to disclosure in writing, or unless a party obtains an Order of the Court 18 declaring that all or certain Portions of such Discovery Material are not, in fact, protected 19 or should be subject to an alternative designation; and b) 20 Shall be used only for purposes of this litigation for the preparation, trial, 21 and appeal of this lawsuit; settlement discussions and negotiations pertaining to this 22 lawsuit; any form of alternative dispute resolution of this lawsuit; or for any of the 23 previous purposes for any lawsuit ordered by a court to be related to this lawsuit; and for 24 no other purpose or publication whatsoever, whether directly or indirectly. 25 4. Manner Of Designation. The Producing Party may designate documents or other 26 tangible Discovery Materials by placing the following legend or similar legend on the document 27 or thing: “CONFIDENTIAL,” “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” and/or 28 “RESTRICTED CONFIDENTIAL-SOURCE CODE.” 3 STIPULATION AND PROTECTIVE ORDER 1 a) Written Discovery Information may be designated by placing the following 2 legend on every page of the written material subject to protection prior to production: 3 “CONFIDENTIAL,” “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” and/or 4 “RESTRICTED CONFIDENTIAL-SOURCE CODE.” 5 b) In the event that original documents are produced for inspection, no 6 marking need be made by the Producing Party in advance of the inspection. For the 7 purposes of the inspection, all documents so produced shall be considered as marked 8 “CONFIDENTIAL-ATTORNEYS’ EYES ONLY.” Thereafter, upon selection of 9 specified documents for copying by the Receiving Party, the Producing Party shall mark 10 “CONFIDENTIAL,” “CONFIDENTIAL-ATTORNEYS’ EYES ONLY,” and/or 11 “RESTRICTED CONFIDENTIAL-SOURCE CODE” as appropriate, on the copies of 12 such documents at the time the copies are produced to the Receiving Party. 13 c) Parties or testifying persons may designate depositions and other testimony 14 as CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or 15 RESTRICTED CONFIDENTIAL-SOURCE CODE by indicating on the record at the 16 time the testimony is given or by sending written notice that the testimony is designated 17 within thirty (30) days of receipt of the final transcript of the testimony. All information 18 disclosed during a deposition shall be deemed CONFIDENTIAL-ATTORNEYS’ EYES 19 ONLY until the time within which it may be designated as CONFIDENTIAL, 20 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED 21 CONFIDENTIAL-SOURCE CODE has passed. The witness, counsel for the witness, and 22 counsel for any party shall have the right to exclude from oral depositions, other than the 23 deponent and counsel for the deponent, any person who is not authorized by this 24 Stipulation and Protective Order to receive documents or information designated as 25 CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or 26 RESTRICTED CONFIDENTIAL-SOURCE CODE. Such right of exclusion is applicable 27 during periods of examination or testimony directed to CONFIDENTIAL, 28 4 STIPULATION AND PROTECTIVE ORDER 1 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED 2 CONFIDENTIAL-SOURCE CODE information. 3 5. 4 Persons Who May Access Designated Discovery Material. a) Co-Defendant Information. Notwithstanding the provisions of this 5 paragraph, absent the express written consent of the Producing Party, no representative or 6 employee (including in house counsel and paralegals) of an Alleged Infringer shall have 7 access to the CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or 8 RESTRICTED CONFIDENTIAL-SOURCE CODE Discovery Material of any other 9 Alleged Infringer. 10 b) Confidential Discovery Material. The parties agree that any Discovery 11 Material that contains trade secret or other confidential research, development, or 12 commercial information within the scope of Rule 26(c)(1)(g) may qualify for the 13 CONFIDENTIAL designation. Subject to the provisions set forth in Paragraph 18, 14 Discovery Material designated as CONFIDENTIAL may be disclosed only to: 15 i) Two (2) representatives of the Receiving Party; 16 ii) The outside attorneys working on this action on behalf of any party 17 and paralegals of such outside attorneys and any copy or other clerical litigation 18 support services personnel employed by such outside attorneys. As used herein, 19 “outside attorneys” shall mean attorneys for the respective firms who have 20 appearances entered in this case; 21 22 23 iii) Two (2) in-house counsel of each Receiving Party who are responsible for this action and two paralegals of such Receiving Party; iv) Any person or entity that is not a party to this action and who is not 24 employed by a party who is expressly retained by any outside attorney described in 25 Paragraph 5(b)(ii) to assist in preparation of this action for trial as a consultant or 26 testifying expert, with disclosure only to the extent necessary to perform such 27 work; provided, however, that such person has signed the undertaking annexed 28 hereto as Exhibit A agreeing to be bound by the terms of this Protective Order, and 5 STIPULATION AND PROTECTIVE ORDER 1 provided that no unresolved objections to such disclosure exist after proper notice 2 has been given to all parties as set forth in Paragraph 6, below; 3 4 v) Court reporters, stenographers and videographers retained to record testimony taken in this action; 5 vi) 6 personnel; 7 vii) The Court, its technical advisor (if one is appointed), jury, and court Copy, electronic discovery, graphics, translation, design, clerical 8 litigation support, and/or trial consulting services including mock jurors, retained 9 by a Party; 10 viii) 11 Party. 12 c) Any other person with the prior written consent of the Producing Confidential-Attorneys Eyes Only Discovery Material. The parties agree 13 that at least Discovery Material in one or more of the following categories may qualify for 14 the CONFIDENTIAL - ATTORNEYS’ EYES ONLY designation: (i) non-public 15 technical information, including schematic diagrams, manufacturing and engineering 16 drawings, engineering notebooks, internal technical communications, specifications, 17 research notes and materials, technical reference materials, and other non-public technical 18 descriptions and/or depictions of the relevant technology; (ii) non-public damages-related 19 information (e.g., the number of products sold, total dollar volume of sales products); (iii) 20 non-public financial information; (iv) customer lists; (v) business and/or marketing plans 21 or analyses; and (vi) price lists and/or pricing information. Subject to the provisions set 22 forth in Paragraph 18, Discovery Material designated as CONFIDENTIAL - 23 ATTORNEYS EYES’ ONLY may be disclosed only to: 24 i) The outside attorneys working on this action on behalf of any party 25 and paralegals of such outside attorneys and any copy or other clerical litigation 26 support services personnel employed by any of such outside attorneys. As used 27 herein, “outside attorneys” shall mean attorneys for the respective firms who have 28 appearances entered in this case; 6 STIPULATION AND PROTECTIVE ORDER 1 2 ii) Two (2) in-house counsel of each Receiving Party who are responsible for this action and two (2) paralegals of such Receiving Party; 3 iii) Any person or entity that is not a party to this action and that is not 4 employed by a party who is expressly retained by any outside attorney described in 5 Paragraph 5(c)(i) to assist in preparation of this action for trial as a consultant or 6 testifying expert, with disclosure only to the extent necessary to perform such 7 work; provided, however, that such person has signed the undertaking annexed 8 hereto as Exhibit A agreeing to be bound by the terms of this Protective Order, and 9 provided that no unresolved objections to such disclosure exist after proper notice 10 has been given to all parties as set forth in Paragraph 5(b), below; 11 12 iv) Court reporters, stenographers, and videographers retained to record testimony taken in this action; 13 v) 14 personnel; 15 vi) The Court, its technical advisor (if one is appointed), jury, and court 16 Copy, graphics, translation, design, clerical litigation support, and/or trial consulting services (excluding mock jurors) retained by a Party; 17 vii) 18 Party. 19 d) Any other person with the prior written consent of the Producing Information Designated RESTRICTED CONFIDENTIAL-SOURCE 20 CODE. Native source code shall be produced in native format as it is organized and kept 21 in the ordinary course of business. All source code produced shall be deemed 22 “RESTRICTED CONFIDENTIAL-SOURCE CODE.” Documents or other things that 23 are designated as confidential and contain a party’s source code may be designated 24 “RESTRICTED CONFIDENTIAL-SOURCE CODE” and treated as such if they 25 comprise or include confidential, proprietary and/or trade secret source code. 26 i) Any source code that is produced shall be made available for 27 inspection in electronic format at the Producing Party’s option at (a) the San 28 Francisco or Palo Alto, California offices of Manatt, Phelps & Phillips, (b) the 7 STIPULATION AND PROTECTIVE ORDER 1 California offices of its outside counsel of record in this action, or (c) another 2 location mutually agreed upon by the Parties. 3 ii) The Receiving Party shall provide ten (10) days notice prior to 4 commencing an inspection. The Receiving Party shall restrict its inspection 5 requests to the business hours of the secure office. 6 iii) Subject to the other provisions of this Protective Order, the 7 Receiving Party may bring with it to the secure offices a cell phone and laptop 8 computer. 9 iv) Source code will be made available by the Producing Party to the 10 Receiving Party’s outside counsel and/or experts in a private room at the secure 11 office on a secured computer, without Internet access or network access to other 12 computers (“Source Code Computer”), as necessary and appropriate to prevent and 13 protect against any unauthorized copying, transmission, removal or other transfer 14 of any source code outside or away from the computer on which the source code is 15 provided for inspection. The Producing Party shall be obligated to install such 16 tools or programs necessary to review and search the code produced on the 17 platform produced. The Receiving Party’s outside counsel and/or expert shall be 18 entitled to take notes relating to the source code but may not copy substantial 19 portions of the source code into the notes. For purposes of this provision, fifteen 20 or more lines of code is “substantial.” No copies of all or any portion of the source 21 code may leave the room in which the source code is inspected except as otherwise 22 provided herein. Further, no other written or electronic record of the source code 23 is permitted except as otherwise provided herein. 24 v) The Receiving Party may request paper copies of limited portions 25 of source code that are reasonably necessary for the preparation of court filings, 26 pleadings, expert reports, or other papers, or for deposition or trial, but shall not 27 request paper copies for the purpose of reviewing the source code other than 28 electronically in the first instance. Upon reasonable request, the Producing Party 8 STIPULATION AND PROTECTIVE ORDER 1 shall produce to the Receiving Party printed copies of requested files contained on 2 the Producing Party's Source Code Computer under the following terms and 3 conditions: 4 a. A request for printed copies of files shall include, on a file- 5 by-file basis, the complete file path associated with each file. If additional 6 information is required to uniquely identify the requested files, then the 7 request shall include, on a file-by-file basis, such additional information. 8 b. A party may request multiple versions or revisions of the 9 same file, but the requesting party must specify the exact dates or the exact 10 numbers for each version or versions sought. The Producing Party and the 11 Receiving Party shall cooperate in identifying the precise files which are 12 sought. 13 c. Any printed copy of a Source Code file shall be marked and 14 designated as “RESTRICTED CONFIDENTIAL-SOURCE CODE,” must 15 be maintained in the private inspection rooms identified in Paragraph 16 5(d)(v), and shall be disclosed and disseminated only to the individuals 17 identified in Paragraph 5(c). The Producing Party shall clearly identify the 18 file path of the underlying file as well as an additional information required 19 to uniquely identify the underlying file on any printed copy of a Source 20 Code file. 21 d. The Producing Party shall have three (3) business days in 22 which to object in writing as to the extent or relevance of the requested 23 printout(s). If no such objection is made, the Producing Party shall 24 produce a copy of the printout(s) to the Reviewing Party pursuant to the 25 terms of Paragraph 5(c). If objection is made, the parties shall meet and 26 confer within three (3) business days in a good faith attempt to resolve the 27 objection. If the objection is not resolved, the Producing Party shall have 28 five (5) business days after the expiration of the meet and confer period 9 STIPULATION AND PROTECTIVE ORDER 1 (i.e., eight (8) business days from the date of the request) in which to file a 2 motion for relief from production of the printout(s) that are the subject of 3 the objection. The printout(s) shall be retained by the Producing Party, and 4 not produced, pending the Court's resolution of the motion. 5 vi) A list of names of persons who will view the source code will be 6 provided to the Producing Party in conjunction with any written (including email) 7 notice requesting inspection. The Producing Party shall be entitled to have a 8 person observe all entrances and exits from the source code viewing room. The 9 Producing Party may also visually monitor the activities of the Receiving Party’s 10 representatives during any source code review, but only to ensure that there is no 11 unauthorized recording, copying, or transmission of the source code. 12 vii) Unless otherwise agreed in advance by the parties in writing, 13 following each inspection, the Receiving Party’s outside counsel and/or experts 14 shall remove all notes, documents, laptops, and all other materials from the room 15 that may contain work product and/or attorney-client privileged information. The 16 Producing Party shall not be responsible for any items left in the room following 17 each inspection session. 18 viii) The Receiving Party shall maintain and store any paper copies of 19 the source code at the offices of its outside counsel or experts, in a manner that 20 prevents duplication of or unauthorized access to the source code, including, 21 without limitation, storing the source code in a locked room or cabinet at all times 22 when it is not in use. 23 ix) The Receiving Party may include excerpts of source code in a 24 pleading, exhibit, expert report, discovery document, deposition transcript, other 25 Court document, or any drafts of these documents (“Source Code Documents”). 26 The Receiving Party shall only include such excerpts as are reasonably necessary 27 for the purposes for which such part of the source code is used. 28 10 STIPULATION AND PROTECTIVE ORDER 1 x) To the extent portions of source code are quoted in a Source Code 2 Document, either (1) the entire document will be stamped and treated as 3 RESTRICTED CONFIDENTIAL-SOURCE CODE or (2) those pages containing 4 quoted source code will be separately bound, and stamped and treated as 5 RESTRICTED CONFIDENTIAL-SOURCE CODE. 6 xi) The Receiving Party’s outside counsel of record may make no more 7 than five (5) additional paper copies of any portions of the printed source code, not 8 including copies attached to court filings. All paper copies shall be securely 9 destroyed if they are no longer in use (e.g., unmarked and/or spare copies at the 10 conclusion of a deposition). Copies of source code that are marked as deposition 11 exhibits shall not be provided to the Court Reporter or attached to deposition 12 transcripts; rather, the deposition record will identify the exhibit by its production 13 numbers. 14 xii) Except as provided in this Protective Order, the Receiving Party 15 may not create electronic images, or any other images, of the source code from the 16 paper copy for use on a computer (e.g., may not scan the source code to a PDF, or 17 photograph the code). The Receiving Party may create an electronic copy or 18 image of selected portions of the source code only when reasonably necessary to 19 accomplish any filing with the Court or to serve any pleadings or other papers on 20 any other party; or to prepare other necessary case materials such as testifying 21 expert reports, consulting expert written analyses, and related drafts and 22 correspondences. Images or copies of source code shall not be included in 23 correspondence between the parties (references to production numbers and source 24 code page and line numbers shall be used instead) and shall be omitted from 25 pleadings and other papers except to the extent permitted herein. To the extent any 26 electronic images of any portion of source code are permitted under this Protective 27 Order, such electronic images must be encrypted using commercially reasonable 28 encryption software including password protection; pleadings, briefs, and other 11 STIPULATION AND PROTECTIVE ORDER 1 work product containing excerpts of source code need not be encrypted. The 2 communication and/or disclosure of electronic files containing any portion of 3 source code shall at all times be limited to individuals who are authorized to see 4 source code under the provisions of this Protective Order. All electronic copies 5 must be labeled “RESTRICTED CONFIDENTIAL-SOURCE CODE.” 6 xiii) The Receiving Party shall maintain a log of any individual who has 7 inspected any portion of the source code in electronic or paper form. The log shall 8 include the dates and times of any access, all printed or electronic copies of the 9 source code that are delivered by the Receiving Party to any qualified person and 10 the names of the recipients of copies and locations where the copies are stored. 11 The log shall be provided by the Receiving Party to the Producing Party upon 12 request. 13 xiv) Only United States citizens or permanent residents falling within 14 the following categories shall have access to “RESTRICTED CONFIDENTIAL- 15 SOURCE CODE” materials, absent the express written consent of the Producing 16 Party or further court order: 17 a. Outside litigation counsel of record as of the date of this 18 Protective Order, including any attorneys, paralegals, technology 19 specialists and clerical employees of their respective law firms. The parties 20 reserve the right to object to additional counsel that appear on behalf of a 21 party. To the extent that a party raises an objection to an additional 22 counsel, such counsel may be prohibited from accessing RESTRICTED 23 CONFIDENTIAL-SOURCE CODE documents for a period no longer than 24 five (5) business days and the parties agree to negotiate his or her access to 25 “RESTRICTED CONFIDENTIAL-SOURCE CODE” materials in good 26 faith. If the objecting party files a motion for protective order, after a good 27 faith meet and confer, the ban on the access to RESTRICTED 28 CONFIDENTIAL-SOURCE CODE documents shall extend until the 12 STIPULATION AND PROTECTIVE ORDER 1 motion is decided. The motion shall be briefed on an expedited basis 2 where responsive briefs are due five (5) business days after the moving 3 brief is filed. 4 b. Up to three (3) outside experts or consultants per party, pre- 5 approved in accordance with Paragraph 5(c), and specifically identified as 6 eligible to access Source Code. The parties agree to negotiate disclosure of 7 “RESTRICTED CONFIDENTIAL-SOURCE CODE” materials to 8 additional outside experts in good faith and upon a showing of good cause; 9 c. The Court, its technical advisor (if one is appointed), the 10 jury, court personnel, and court reporters or videographers recording 11 testimony or other proceedings in this action; 12 d. While testifying at deposition or trial in this action only: (i) 13 any current or former officer, director or employee of the Producing Party 14 or original source of the information; (ii) any person designated by the 15 Producing Party to provide testimony pursuant to Rule 30(b)(6) of the 16 Federal Rules of Civil Procedure; and/or (iii) any person who authored, 17 previously received, or was directly involved in creating, modifying, or 18 editing the source code, as evident from its face or reasonably certain in 19 view of other testimony or evidence. Persons authorized to view Source 20 Code pursuant to this sub-paragraph shall not retain or be given copies of 21 the Source Code except while so testifying. 22 6. Provision Of Confidential Discovery Material To Authorized Individuals. 23 Other than with respect to Authorized Individuals set forth in Paragraph 5(b)(ii), 5(b)(v), 5(b)(vi), 24 5(c)(i), 5(c)(iv), 5(c)(v), 5(d)(xv)(a), and 5(d)(xv)(c), each person given access to 25 CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED 26 CONFIDENTIAL-SOURCE CODE information shall be advised by the appropriate Receiving 27 Party that the information is being disclosed pursuant and subject to this Stipulation and 28 Protective Order. All persons receiving CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ 13 STIPULATION AND PROTECTIVE ORDER 1 EYES ONLY, and/or RESTRICTED CONFIDENTIAL-SOURCE CODE Discovery Material are 2 enjoined from disclosing it to any person, except in conformance with this Protective Order. 3 Counsel for the Receiving Party shall notify the Producing Party within 24 hours of becoming 4 aware of any loss, theft or unauthorized copying and/or disclosure of CONFIDENTIAL, 5 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED CONFIDENTIAL- 6 SOURCE CODE Discovery Material. Each individual who receives any CONFIDENTIAL, 7 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED CONFIDENTIAL- 8 SOURCE CODE Discovery Material hereby agrees to be subject to the jurisdiction of this Court 9 for the purpose of any proceedings relating to the performance under, compliance with, or 10 11 violation of this Protective Order. a) Counsel who makes CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ 12 EYES ONLY, and/or RESTRICTED CONFIDENTIAL-SOURCE CODE Discovery 13 Material available to persons set forth in Paragraph 5, above, shall be responsible for 14 limiting distribution thereof to those persons authorized under this Protective Order. All 15 copies of such Discovery Material disclosed shall be subject to the same restrictions 16 imposed herein on original materials. Any person having access to such Discovery 17 Material pursuant to Paragraph 5, whose participation in this litigation has been 18 terminated or otherwise concluded shall return all such Discovery Material as soon as 19 practicably possible thereafter to the Receiving Party’s counsel of record, but in no event 20 longer than thirty (30) days after the termination or conclusion of the participation. 21 b) Before counsel for a Receiving Party may disclose any Discovery Material 22 designated CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or 23 RESTRICTED CONFIDENTIAL-SOURCE CODE to a person described in Paragraph 24 5(b)(iv), 5(c)(iii), and 5(d)(xv)(b), above of this Protective Order: 25 26 27 28 i) Counsel shall provide a copy of this Protective Order to such person, who shall sign the undertaking annexed hereto as Exhibit A; and ii) At least seven (7) business days before any such disclosure, counsel for the Receiving Party shall notify the Producing Party in writing of the intent to 14 STIPULATION AND PROTECTIVE ORDER 1 disclose CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, 2 and/or RESTRICTED CONFIDENTIAL-SOURCE CODE Discovery Material to 3 such person. The notice shall include a copy of the undertaking signed by the 4 person and shall identify his or her title, job responsibilities, and affiliation(s) with 5 the Receiving Party. The notice shall also include a copy of such person’s most 6 recent curriculum vitae and an identification of all such person’s present and for 7 the previous four years employment and/or consulting relationships related to the 8 field of computer guided searching. 9 c) If the Producing Party objects to the disclosure of CONFIDENTIAL, 10 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED 11 CONFIDENTIAL-SOURCE CODE Discovery Material to such person, the Producing 12 Party shall notify counsel for the Receiving Party in writing of the Producing Party’s 13 objection(s) to such disclosure prior to the date on which the disclosure is intended to be 14 made. Should the Receiving Party disagree with the basis for the objection(s), the parties 15 must first attempt to resolve the objection(s) informally. If the informal efforts do not 16 resolve the dispute within five (5) business days, the objecting Party may file a motion 17 requesting that the objection(s) be sustained. Pending a ruling by the Court upon any such 18 objection(s), the Discovery Material shall not be disclosed to the person objected to by the 19 Producing Party. If the objecting party fails to seek a protective order within that time, the 20 objection shall be deemed waived and the Discovery Material may be disclosed. 21 7. Use Of Discovery Material In Depositions. To the extent that any 22 CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED 23 CONFIDENTIAL-SOURCE CODE Discovery Material is used in the taking of a deposition, all 24 such Discovery Material shall remain subject to the provisions of this Protective Order, along 25 with the transcript pages of the deposition testimony dealing with the such Discovery Material. If 26 CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED 27 CONFIDENTIAL-SOURCE CODE Discovery Material is used in any deposition, the reporter 28 shall be informed of this Protective Order and shall be required to operate in a manner consistent 15 STIPULATION AND PROTECTIVE ORDER 1 with this Protective Order. In the event the deposition is videotaped, the original and all copies of 2 the videotape shall be marked by the video technician to indicate that the contents of the 3 videotape are subject to this Protective Order, substantially as set forth below: 4 This videotape contains confidential testimony subject to Protective Order in this Action and is not to be viewed or the contents thereof to be displayed or revealed except in accord with such Protective Order, by order of the Court, or pursuant to written stipulation of the parties. 5 6 8. Protection Of Third Parties. A party that seeks Discovery Material from a third 7 party shall provide a copy of this Protective Order to the third party upon request so that it may 8 take advantage of the protections afforded by this Protective Order. 9 9. Storage Of Discovery Material. The recipients of Discovery Material provided 10 under this Protective Order and all material that derives therefrom shall maintain such materials 11 in a safe and secure area, and reasonable precautions shall be taken with respect to the storage, 12 custody, use and/or dissemination of such materials. Any material that is derived from Discovery 13 Material protected hereunder, including copies, reproductions, summaries, or abstracts, shall be 14 subject to the terms of this Protective Order. 15 10. Filing Discovery Materials With The Court. If a document containing 16 CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED 17 CONFIDENTIAL-SOURCE CODE information is filed with the Court, it shall be filed under 18 seal. 19 11. Undertakings. Each person or entity set forth in Paragraphs 5(b)(i), 5(b)(iii), 20 5(b)(iv), 5(b)(vii), 5(b)(viii), 5(c)(ii), 5(c)(iii), 5(c)(vi), 5(c)(vii), and 5(d)(xv)(b) to whom 21 Protected Material is to be given, shown, disclosed, made available, or communicated in any way, 22 shall first execute the undertaking in the form shown in Exhibit A, agreeing to be bound by the 23 terms of this Protective Order and acknowledging that Protected Material is subject to this 24 Protective Order, the person is authorized under Paragraph 5 to receive Protected Material, the 25 person has read this Protective Order, such person agrees to comply with, and be bound by, this 26 Protective Order, and such person is aware that contempt sanctions may be entered for violation 27 of this Protective Order. Counsel to whom Protected Material is produced shall keep in his or her 28 16 STIPULATION AND PROTECTIVE ORDER 1 files the original of each such executed undertaking of Protective Order until sixty (60) calendar 2 days after the final termination of this action. Upon final termination of this action and at the 3 written request of the Producing Party, all such executed agreements shall be provided to outside 4 counsel for the Producing Party. 5 12. No Prejudice. Nothing contained in this Protective Order shall be construed to 6 prejudice any party’s right to use Protected Material at any hearing, trial, or appeal in this 7 litigation. In the event that any CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES 8 ONLY, and/or RESTRICTED CONFIDENTIAL-SOURCE CODE information is used in any 9 court proceeding in this action or any appeal therefrom, such information shall not lose its 10 protection hereunder through such use. The confidentiality of such materials shall be protected as 11 determined and directed by the Court. 12 13. Public Or Independently Developed Information Not Protected. None of the 13 provisions of this Protective Order shall apply to the following categories of information, 14 documents and/or things, and any party may apply to remove the restrictions set forth herein on 15 Protected Material based upon a showing that such Protected Material had been: 16 a) available to the public at the time of its production hereunder; 17 b) available to the public after the time of its production through no 18 unauthorized act, or failure to act, on behalf of the Receiving Party, its counsel, 19 representatives, or experts; 20 c) known to the Receiving Party not because of an unauthorized disclosure by 21 one having obligations to maintain confidentiality, or shown to have been independently 22 developed by the Receiving Party, prior to its production herein or without use or benefit 23 of the information; 24 d) obtained outside of this action by the Receiving Party from the Producing 25 Party without having been designated as CONFIDENTIAL, CONFIDENTIAL- 26 ATTORNEYS’ EYES ONLY, and/or RESTRICTED CONFIDENTIAL-SOURCE 27 CODE, provided, however, that this provision does not negate any preexisting obligation 28 of confidentiality; 17 STIPULATION AND PROTECTIVE ORDER 1 2 e) obtained by the Receiving Party after the time of disclosure hereunder from a non-party having the right to disclose the same; or 3 f) previously produced, disclosed, and/or provided by the Producing Party to 4 the Receiving Party or a non-party without an obligation of confidentiality and not by 5 inadvertence or mistake. 6 14. Inadvertent Privileged Disclosure. The inadvertent production of Discovery 7 Material subject to the attorney-client privilege, the attorney work-product immunity, or other 8 applicable privilege or protection, will not automatically waive the privilege or protection. The 9 provisions of Federal Rule of Civil Procedure 26(b)(5), as amended in 2010, shall apply to such 10 11 inadvertent production. 15. Failure To Designate. The inadvertent failure by a Producing Party to designate 12 Discovery Material as Protected Material shall not waive any such designation provided that the 13 Producing Party notifies all Receiving Parties that such Discovery Material is CONFIDENTIAL, 14 CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or RESTRICTED CONFIDENTIAL- 15 SOURCE CODE within ten (10) days from when the failure to designate first became known to 16 the Producing Party. A Receiving Party shall not be in breach of this Protective Order for any use 17 of such Discovery Material before the Receiving Party receives notice of the inadvertent failure to 18 designate. Once a Receiving Party has received notice of the inadvertent failure to designate 19 pursuant to this provision, the Receiving Party shall treat such Discovery Material at the 20 designated level pursuant to the terms of this Protective Order. 21 16. Unauthorized Disclosure. In the event of a disclosure of any Discovery Material 22 designated CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ EYES ONLY, and/or 23 RESTRICTED CONFIDENTIAL-SOURCE CODE to a person or persons not authorized to 24 receive such disclosure under this Protective Order, the party responsible for having made such 25 disclosure, and each party with knowledge thereof, shall immediately notify counsel for the 26 Producing Party and provide to such counsel all known relevant information concerning the 27 nature and circumstances of the disclosure. The responsible disclosing party shall also promptly 28 take all reasonable measures to retrieve the improperly disclosed Discovery Material and to 18 STIPULATION AND PROTECTIVE ORDER 1 ensure that no further or greater unauthorized disclosure and/or use thereof is made. 2 Unauthorized or inadvertent disclosure does not change the status of Discovery Material or waive 3 the right to hold the disclosed document or information as Protected. 4 17. Disposition Of Materials After Litigation. Not later than sixty (60) days after 5 the final disposition of this litigation, (including after any appeals), by order of the Court, or for 6 good cause shown, each party shall return all CONFIDENTIAL and CONFIDENTIAL- 7 ATTORNEYS’ EYES ONLY Discovery Material of a Producing Party to the respective outside 8 attorneys of the Producing Party and certify in writing that all such Discovery Material has been 9 returned. Alternatively, the Receiving Party may destroy such Discovery Material and certify in 10 writing that all such discovery material has been destroyed. The Parties receiving such Discovery 11 Material may keep their attorney work product, all court filings, discovery requests and 12 responses, correspondence, expert reports, trial and deposition transcripts, and exhibits to all of 13 the foregoing, which refer or relate to such Discovery Material. Attorney work product may be 14 used in subsequent litigation provided that such use does not disclose Discovery Material or any 15 information contained therein. 16 18. Disputes Regarding Designation. Any party may object in writing to any 17 designation of Discovery Material as CONFIDENTIAL, CONFIDENTIAL-ATTORNEYS’ 18 EYES ONLY, and/or RESTRICTED CONFIDENTIAL-SOURCE CODE by specifying the 19 Discovery Material to which the objection is addressed and the grounds for the objection. 20 Thereafter, further protection of such material shall be resolved in accordance with the following 21 procedures: 22 a) The objecting party shall have the burden of conferring either in person, in 23 writing, or by telephone with the Producing Party claiming protection (as well as any 24 other interested party) in a good faith effort to resolve the dispute. The Producing Party 25 shall have the burden of justifying the disputed designation; 26 b) Failing agreement, the objecting party may bring a motion to the Court for 27 a ruling that the Discovery Material in question is not entitled to the status and protection 28 of the Producing Party’s designation. 19 STIPULATION AND PROTECTIVE ORDER 1 c) Notwithstanding any challenge to a designation, the Discovery Material in 2 question shall continue to be treated as designated under this Protective Order until one of 3 the following occurs: 4 5 d) the party who designated the Discovery Material withdraws such designation in writing, or 6 e) 7 designation. 8 19. the Court rules that the Discovery Material in question is not entitled to the 9 Restriction On Assistance with Patent Applications. Absent written consent from the Producing Party, any individual who reviews “HIGHLY CONFIDENTIAL – 10 ATTORNEYS’ EYES ONLY” technical information or “HIGHLY CONFIDENTIAL – 11 SOURCE CODE” information shall not be involved in the prosecution of patents or patent 12 applications relating to search engines, web search, or database or server search technology, 13 including without limitation the patents asserted in this action and any patent or application 14 claiming priority to or otherwise related to the patents asserted in this action, before any foreign 15 or domestic agency, including the United States Patent and Trademark Office (“the Patent 16 Office”). For purposes of this paragraph, “prosecution” includes directly or indirectly drafting, 17 amending, advising, or otherwise affecting the scope or maintenance of patent claims. To avoid 18 any doubt, “prosecution” as used in this paragraph does not include representing a party 19 challenging a patent or challenging any proposed claims before a domestic or foreign agency 20 (including, but not limited to, a reissue protest, ex parte reexamination or inter partes 21 reexamination). This Prosecution Bar shall begin when “HIGHLY CONFIDENTIAL – 22 ATTORNEYS’ EYES ONLY” technical information or “HIGHLY CONFIDENTIAL – 23 SOURCE CODE” information is first reviewed by the affected individual and shall end two (2) 24 years after final termination of this action. 25 20. Additional Protection. This Protective Order is entered without prejudice to the 26 right of any party to seek further or additional protection of Discovery Material for which the 27 protection of this Protective Order is not believed by such party to be adequate. Nothing in this 28 Protective Order shall be deemed to bar or preclude any Producing Party from seeking such 20 STIPULATION AND PROTECTIVE ORDER 1 additional protection, including, without limitation, an order that certain matter not be produced at 2 all. 3 21. Protection Of Producing Party. If at any time Discovery Material is subpoenaed 4 by any court, arbitral, administrative, or legislative body, the person to whom the subpoena or 5 other request is directed shall immediately give written notice thereof to counsel for every party 6 who has produced such Discovery Material and shall provide each such party with an opportunity 7 to object to the production of confidential materials. If a Producing Party does not move for a 8 protective order within ten (10) business days of the date written notice is given, the party to 9 whom the referenced subpoena is directed may produce such Discovery Material in response 10 11 12 thereto. 22. Discovery From Experts. a) Discovery from experts is subject to the provisions of Federal Rule of Civil 13 Procedure 26(b)(4). Testifying experts shall not be subject to discovery on any draft of 14 his or her report in this case that was written by or for the testifying expert or his or her 15 staff and such draft reports, notes, or outlines for draft reports developed and drafted by or 16 for the testifying expert and/or his or her staff are also exempt from discovery. 17 b) Discovery of materials provided to testifying experts shall be limited to 18 those materials, facts, consulting expert opinions, and other matters actually relied upon 19 by the testifying expert in forming his/her final report, trial, or deposition testimony or any 20 opinion in this case. No discovery can be taken from any consulting expert except to the 21 extent that consulting expert has provided information, opinions, or other materials to a 22 testifying expert, who then relies upon such information, opinions, or other materials in 23 forming his final report, trial, or deposition testimony or any opinion in this case. 24 c) No conversations or communications between counsel and any testifying or 25 consulting expert will be subject to discovery unless the conversations or communications 26 are relied upon by such experts in formulating opinions that are presented in reports or 27 trial or deposition testimony in this case. 28 21 STIPULATION AND PROTECTIVE ORDER 1 d) Materials, communications, and other information exempt from discovery 2 under the foregoing Paragraphs (a)-(c) shall be treated as attorney-work product for the 3 purposes of this litigation and Protective Order. 4 23. Limitations On Protective Order. Nothing in this Protective Order shall 5 preclude any party to this lawsuit or its attorneys from disclosing or using, in any manner or for 6 any purpose, its own Discovery Material. Notwithstanding any designation of Discovery 7 Material by a Producing Party under this Protective Order, any witness may be shown at a 8 deposition, trial, or evidentiary hearing, and examined on, any Discovery Material that the 9 witness authored or previously received. The witness may also be shown at a deposition, trial, or 10 evidentiary hearing, and examined on, any Discovery Material for which specific documentary or 11 testimonial evidence shows (i) that the Discovery Material was communicated to or from the 12 witness, or (ii) that the witness was involved in the specific matter(s) addressed in the Discovery 13 Material, or (iii) if the Producing Party of the Discovery Material agrees. Such witness must be 14 advised by counsel for the deposing party that his/her access to designated Discovery Material is 15 subject to the protections of this Protective Order and that he/she may not disclose such 16 designated Discovery Material or information contained therein to any persons not authorized 17 under this Protective Order to receive the same. Moreover, such witness may not retain any 18 copies of the discovery material disclosed or any notes relating thereto. Nothing in this Protective 19 Order shall be construed to prevent Counsel from advising their clients with respect to this 20 litigation based in whole or in part upon Protected Materials, provided Counsel does not disclose 21 the Protected Material itself except as provided in this Protective Order. In order to facilitate 22 settlement, nothing in this Protective Order shall be construed to prevent Counsel from disclosing 23 to their clients summaries of Protected Materials that include financial information relevant to 24 damages 25 26 27 28 24. Survival Of Protective Order. The parties agree that the terms of this Protective Order shall survive and remain in effect after the termination of the above-captioned matter. 25. Binding Effect. This Protective Order shall be binding upon the parties hereto, their attorneys, and their successors, executors, personal representatives, administrators, heirs, 22 STIPULATION AND PROTECTIVE ORDER 1 legal representatives, assigns, subsidiaries, divisions, employees, agents, retained consultants and 2 experts, and any persons or organizations over which they have direct control. 3 26. No Waiver. Execution of this Protective Order shall not constitute a waiver of the 4 right of any party to claim in this action or otherwise that any Discovery Material, or any portion 5 thereof, is privileged or otherwise non-discoverable, or is not admissible in evidence in this action 6 or any other proceeding. 7 27. Discovery Rules Remain Unchanged. Except as expressly stated herein, nothing 8 herein shall alter or change in any way the discovery provisions of the Federal Rules of Civil 9 Procedure or any deadlines or procedures ordered by the Court for this litigation. 10 28. Effective as a Stipulation. This Stipulation and Protective Order shall become 11 effective as a stipulation between the parties immediately upon its execution, notwithstanding the 12 pendency of approval by the Court. If approval by the Court is ultimately withheld or made 13 conditional, no party shall treat any designated Discovery Material produced prior to that time 14 other than as provided in this Protective Order without giving the Producing Party sufficient 15 advance notice to allow for application to the Court for additional relief. 16 29. Burdens of Proof. Notwithstanding anything to the contrary above, nothing in 17 this Protective Order shall be construed to change the burdens of proof or legal standards 18 applicable in disputes regarding whether particular Discovery Material is confidential, which 19 level of confidentiality is appropriate, whether disclosure should be restricted, and, if so, what 20 restrictions should apply. 21 30. Modification by the Court. This Protective Order is subject to further court order 22 based upon public policy or other considerations, and the Court may modify this Protective Order 23 sua sponte in the interests of justice. The United States District Court for the Northern District of 24 California is responsible for the interpretation and enforcement of this Protective Order. All 25 disputes concerning Protected Material, however designated, produced under the protection of 26 this Protective Order shall be resolved by the United States District Court for the Northern 27 District of California. 28 23 STIPULATION AND PROTECTIVE ORDER 1 31. Post-complaint Documents. The parties agree that where a document production 2 request or other document production obligation reasonably may be interpreted to call for the 3 production of a document that (i) constitutes or reflects privileged attorney-client communications 4 between a party and its litigation counsel, is subject to a common-interest privilege relating to this 5 litigation, and/or constitutes attorney work product created in anticipation of this litigation and (ii) 6 was created on or after October 3, 2007 (the date PartsRiver filed its complaint against eBay and 7 Microsoft asserting infringement of the ’821 patent), then the party responding to the request need 8 not list such documents on its privilege log and the privileged status of such document will not be 9 affected by omitting such documents from the responding party’s privilege log. 10 11 SO ORDERED , But see Local Rule 79-5. 12 13 SIGNED this 13thday of September, 2011. ___ 14 15 CLAUDIA WILKEN United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 24 STIPULATION AND PROTECTIVE ORDER 1 EXHIBIT A 2 UNDERTAKING TO PROTECTIVE ORDER 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 I, ________________________________________, acknowledge and declare that I have received a copy of the Protective Order (“Order”) in Kelora Systems, LLC v. Target Corporation et al., United States District Court, Northern District of California, Civil Action No. 4:11-cv01548-CW; Cabela’s, Inc. v. Kelora Systems, LLC, United States District Court, Northern District of California, Civil Action No. 4:11-cv-01398-CW; Nebraska Furniture Mart, Inc. v. Kelora Systems, LLC, United States District Court, Northern District of California, Civil Action No. 4:11-cv-02284-CW; and eBay, Inc. and Microsoft Corporation v. Kelora Systems, LLC, United States District Court, Northern District of California, Civil Action No. 4:10-cv-04947CW. Having read and understood the terms of the Order, I agree to be bound by the terms of the Order and consent to the jurisdiction of said Court for the purpose of any proceeding to enforce the terms of the Order. I understand that the Discovery Material and my copies or notes relating thereto may only be disclosed to or discussed with those persons permitted by the Protective Order to receive such material. I further certify that I do not have any engagements and/or consulting relationships with any of the Parties to this lawsuit or principals thereof or with any of the law firms or outside counsel involved in this lawsuit that have not been disclosed. I will return on request all materials containing Discovery Material, copies thereof, and notes that I have prepared relating thereto, to outside trial counsel for the party by whom or on whose behalf I am retained. I hereby submit to the jurisdiction of this Court for the purpose of enforcement of the Protective Order and waive any and all objections to jurisdiction and venue. I make the above statements under penalty of perjury. Name of individual: Present occupation/job description: 28 25 STIPULATION AND PROTECTIVE ORDER 1 2 3 Name of Company or Firm: 4 Address: 5 Dated: 6 7 [Signature] 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26 STIPULATION AND PROTECTIVE ORDER