Silver State Intellectual Technologies, Inc. v. Garmin International, Inc. et al, No. 2:2011cv01578 - Document 114 (D. Nev. 2014)

Court Description: PROTECTIVE ORDER Granting 111 Amended Motion for Protective Order. Signed by Magistrate Judge Peggy A. Leen on 03/12/2014. (Copies have been distributed pursuant to the NEF - AC)
Download PDF
Silver State Intellectual Technologies, Inc. v. Garmin International, Inc. et al 1 2 3 4 5 6 7 8 9 Doc. 114 Jeffery A. Silvestri (NV Bar No. 5779) MCDONALD CARANO WILSON LLP 2300 West Sahara Avenue, Suite 1000 Las Vegas, NV 89102 Phone: (702) 873-4100 Facsimile: (702) 873-9966 Email: jsilvestri@mcdonaldcarano.com Brenton R. Babcock (admitted pro hac vice) Marko R. Zoretic (admitted pro hac vice) KNOBBE, MARTENS, OLSON & BEAR, LLP 2040 Main Street, Fourteenth Floor Irvine, CA 92614 Phone: (949) 760-0404 Facsimile: (949) 760-9502 Email: brent.babcock@knobbe.com Email: marko.zoretic@knobbe.com 10 11 12 13 14 Frederick S. Berretta (admitted pro hac vice) Loni Schutte (admitted pro hac vice) KNOBBE, MARTENS, OLSON & BEAR, LLP 12790 El Camino Real San Diego, CA 92130 Phone: (858) 707-4000 Facsimile: (858) 707-4001 Email: fred.berretta@knobbe.com Email: loni.schutte@knobbe.com 15 16 17 18 Yanna S. Bouris (admitted pro hac vice) KNOBBE, MARTENS, OLSON & BEAR, LLP 10100 Santa Monica Blvd., Suite 1600 Los Angeles, CA 90067 Phone: (310) 551-3450 Facsimile: (310) 551-3458 Email: yanna.bouris@knobbe.com 19 20 Attorneys for Plaintiff/Counterdefendant SILVER STATE INTELLECTUAL TECHNOLOGIES, INC. 21 22 23 24 25 James J. Pisanelli (NV Bar No. 4027) Christopher R Miltenberger (NV Bar No. 10153) PISANELLI BICE, PLLC 3883 Howard Hughes Parkway, Suite 800 Las Vegas, NV 89169 Phone: (702) 214-2100 Facsimile: (702) 214-2101 Email: JJP@pisanellibice.com Email: CRM@pisanellibice.com 26 27 28 Adam P. Seitz (admitted pro hac vice) Abran J. Kean (admitted pro hac vice) Paul R. Hart (admitted pro hac vice) ERISE IP, P.A. Dockets.Justia.com 1 2 3 4 5 6 5251 W. 116th Place, Suite 200 Leawood, KS 66211 Phone: (913) 777-5600 Facsimile: (913) 777-5601 Email: adam.seitz@eriseip.com Email: abran.kean@eriseip.com Email: paul.hart@eriseip.com Attorneys for Defendants/Counterclaimants GARMIN INTERNATIONAL, INC. and GARMIN USA, INC. 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE DISTRICT OF NEVADA 10 11 12 SILVER STATE INTELLECTUAL TECHNOLOGIES, INC., a Nevada corporation, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff/Counterdefendant, v. GARMIN INTERNATIONAL, INC., a Kansas corporation, and GARMIN USA, INC., a Kansas corporation, Defendants/Counterclaimants. ) Case No. 2:11-cv-1578-PMP-PAL ) ) FIRST AMENDED STIPULATED ) PROTECTIVE ORDER ) ) ) ) ) ) ) ) ) ) 1 The Court recognizes that at least some of the documents and information 2 (“materials”) being sought through discovery in the above-captioned action are, for 3 competitive reasons, normally kept confidential by the parties. The parties have agreed to be 4 bound by the terms of this Protective Order (“Order”) in this action. 5 The materials to be exchanged throughout the course of the litigation between the 6 parties may contain trade secret or other confidential research, technical, cost, price, 7 marketing or other commercial information, as is contemplated by Federal Rule of Civil 8 Procedure 26(c)(7). The purpose of this Order is to protect the confidentiality of such 9 materials as much as practical during the litigation. THEREFORE: 10 DEFINITIONS 11 1. The term “Confidential Information” will mean and include information 12 contained or disclosed in any materials, including documents, portions of documents, answers 13 to interrogatories, responses to requests for admissions, trial testimony, deposition testimony, 14 and transcripts of trial testimony and depositions, including data, summaries, and 15 compilations derived therefrom that is deemed to be Confidential Information by any party to 16 which it belongs. The persons receiving Confidential Information are ENJOINED from 17 disclosing it to any other person or entity except in conformance with this Order. 18 2. The term “materials” will include, but is not be limited to: documents; 19 correspondence; memoranda; bulletins; blueprints; specifications; customer lists or other 20 material that identify customers or potential customers; price lists or schedules or other matter 21 identifying pricing; minutes; telegrams; letters; statements; cancelled checks; contracts; 22 invoices; drafts; books of account; worksheets; notes of conversations; desk diaries; 23 appointment 24 compilations from which information can be obtained and translated into reasonably usable 25 form through detection devices; sketches; drawings; notes (including laboratory notebooks 26 and records); reports; instructions; disclosures; other writings; models and prototypes and 27 other physical objects. 28 /// books; expense accounts; recordings; -1- photographs; motion pictures; First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 2 3. The term “Counsel” will mean outside counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms identified below: 3 Knobbe, Martens, Olson & Bear, LLP; McDonald Carano Wilson, LLP; Erise IP, 4 P.A.; and Pisanelli Bice, PLLC. “Counsel” also includes Andrew Etkind, David Ayres and 5 Sam Korte, in-house attorneys for Defendant. 6 7 8 9 10 The term “Outside Counsel” will mean outside counsel of record, and other attorneys, paralegals, secretaries, and other support staff employed in the law firms identified below: Knobbe, Martens, Olson & Bear, LLP; McDonald Carano Wilson, LLP; Erise IP, P.A.; and Pisanelli Bice, PLLC. attorneys for Defendant. 11 12 “Outside Counsel” expressly excludes any in-house GENERAL RULES 4. Each party to this litigation that produces or discloses any materials, answers 13 to interrogatories, responses to requests for admission, trial testimony, deposition testimony, 14 and transcripts of trial testimony and depositions, or information that the producing party 15 believes should be subject to this Protective Order may designate the same as 16 “CONFIDENTIAL,” 17 “CONFIDENTIAL 18 CONFIDENTIAL – SOURCE CODE.” “CONFIDENTIAL – OUTSIDE - ATTORNEYS’ ATTORNEYS’ EYES EYES ONLY,” or ONLY,” “HIGHLY 19 a. Designation as “CONFIDENTIAL”: Any party may designate 20 information as “CONFIDENTIAL” only if, in the good faith belief of such 21 party and its counsel, the unrestricted disclosure of such information (a) may 22 have the effect of causing harm to the competitive position of the person, firm, 23 partnership, corporation, or to the organization from which the information 24 was obtained, or (b) would violate an obligation of confidentiality to a third 25 party, including a court. 26 b. 27 “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY”: Any party 28 may designate information as “CONFIDENTIAL - ATTORNEYS’ EYES Designation as “CONFIDENTIAL - ATTORNEYS’ EYES ONLY” or -2- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 ONLY” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” 2 only if, in the good faith belief of such party and its counsel, the information is 3 among that considered to be most sensitive by the party, including but not 4 limited to trade secret or other confidential research, development, financial or 5 other commercial information. 6 c. 7 information or items: Source code produced by any party may be designated 8 as “HIGHLY CONFIDENTIAL – SOURCE CODE.” Materials labeled as 9 such are limited to extremely sensitive information and items, the disclosure of 10 which to another party or nonparty would create a substantial risk of serious 11 injury to the business or competitive interests of the Producing Party that could 12 not be avoided by less restrictive means. Nothing in this Protective Order 13 should be interpreted as requiring any Party to produce any Source Code. 14 d. 15 the document produced to a party with the legend “CONFIDENTIAL,” 16 “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – 17 OUTSIDE ATTORNEYS’ EYES ONLY” on each page of the document, 18 preferably in the lower right-hand corner of the document, or as close thereto 19 as feasible. In the event that only selected pages of a bound multiple-page 20 document are stamped with the “CONFIDENTIAL,” “CONFIDENTIAL - 21 ATTORNEYS’ 22 ATTORNEYS’ EYES ONLY” legend (e.g., responses to discovery requests), 23 the first page of the bound document shall also be stamped with the 24 “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or 25 “CONFIDENTIAL 26 prevent accidental disclosure of the Confidential contents of the document. 27 Designation as “HIGHLY CONFIDENTIAL – SOURCE CODE” Confidential documents shall be so designated by stamping copies of EYES ONLY,” or “CONFIDENTIAL - OUTSIDE OUTSIDE ATTORNEYS’ EYES ONLY” legend to /// 28 -3- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 5. In the event the producing party elects to produce materials for inspection, no 2 marking need be made by the producing party in advance of the initial inspection. For 3 purposes of the initial inspection, other than source code, all materials produced will be 4 considered as “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” and must be treated as 5 such pursuant to the terms of this Order. No copies shall be made or retained during the 6 inspection. Thereafter, upon selection of specified materials for copying by the inspecting 7 party, the producing party must, within a reasonable time prior to producing those materials 8 to the inspecting party, mark the copies of those materials that contain Confidential 9 Information with the appropriate confidentiality marking. Any document identified on a 10 privilege log may be withheld by the producing party, and its inclusion in the documents for 11 inspection shall not be deemed a waiver of any privilege. 12 13 6. Whenever a deposition taken on behalf of any party involves a disclosure of Confidential Information of any party: 14 a. the deposition or portions of the deposition must be designated as 15 containing Confidential Information subject to the provisions of this Order; 16 such designation must be made on the record whenever possible, but a party 17 may designate portions of depositions as containing Confidential Information 18 after transcription of the proceedings; a party will have until fourteen (14) days 19 after receipt of the deposition transcript to inform the other party or parties to 20 the 21 “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” 22 “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY,” or “HIGHLY 23 CONFIDENTIAL – SOURCE CODE.” 24 b. 25 the deposition, during such time as the Confidential Information is to be 26 disclosed, any person other than the deponent, Counsel (including their staff 27 and associates), the court reporter, and the person(s) agreed upon pursuant to 28 paragraph 8 below; and action of the portions of the transcript to be designated the disclosing party will have the right to exclude from attendance at -4- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 c. 2 deposition must bear the legend “CONFIDENTIAL,” “CONFIDENTIAL - 3 ATTORNEYS’ 4 ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE 5 CODE,” as appropriate, and the original or any copy ultimately presented to a 6 court for filing must not be filed unless it can be accomplished under seal, 7 identified as being subject to this Order, and protected from being opened 8 except by order of this Court. 9 7. All the originals of the deposition transcripts and all copies of the EYES Confidential ONLY,” Information “CONFIDENTIAL designated as – OUTSIDE “CONFIDENTIAL,” 10 “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” “CONFIDENTIAL – OUTSIDE 11 ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” must 12 not be disclosed by the receiving party to anyone other than those persons designated within 13 this order and must be handled in the manner set forth below and, in any event, must not be 14 used for any purpose other than in connection with this litigation, unless and until such 15 designation is removed either by agreement of the parties, or by order of the Court. 16 17 8. Information designated “CONFIDENTIAL - ATTORNEYS’ EYES ONLY” must be viewed only by: 18 a. Counsel (as defined in paragraph 3) of the receiving party; 19 b. Independent experts or consultants under the conditions set forth in this 20 Paragraph; 21 c. Court reporters employed by any party in this action; 22 d. Judges, law clerks, court reporters, and other clerical personnel of the 23 Court before which this action is pending; 24 e. 25 identified above; and 26 f. Stenographic and clerical employees associated with the individuals Any other person as to whom the parties in writing agree. 27 The right of any independent expert or consultant to receive any Confidential 28 Information will be subject to the advance approval of such expert or consultant by the -5- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 producing party or by permission of the Court. The party seeking approval of an independent 2 expert or consultant must provide the producing party with the name and curriculum vitae of 3 the proposed independent expert or consultant, and an executed copy of the form attached 4 hereto as Exhibit A, in advance of providing any Confidential Information of the producing 5 party to the expert or consultant. In addition, the party seeking approval must include in its 6 written notice to opposing counsel an informed statement whether the independent expert or 7 consultant has presently or has had in the past a consulting relationship, or any other kind of 8 contractual or employment relationship, with either (i) the party receiving the Confidential 9 Information, or (ii) any company that manufactures or develops navigation devices. 10 Any objection by the producing party to an independent expert or consultant receiving 11 Confidential Information must be made in writing within fourteen (14) days following receipt 12 of the identification of the proposed expert or consultant. Confidential Information may be 13 disclosed to an independent expert or consultant if the fourteen (14) day period has passed 14 and no objection has been made. The approval of independent experts or consultants must not 15 be unreasonably withheld. In the event that the producing party objects in writing to the 16 proposed disclosure during the above-stated fourteen-day period, and the parties are unable to 17 agree whether the disclosure should be made, the party seeking disclosure must move the 18 Court for permission to disclose the Confidential Information. The objecting party shall 19 provide the grounds for such objection in writing within the above-stated fourteen-day period, 20 articulating those grounds with sufficient particularity to enable the party seeking disclosure 21 to move the Court for permission to disclose the Confidential Information. The objecting 22 party’s grounds for objection to the proposed disclosure must include good cause for the 23 objection based, at least in part, on a claim of prejudice if the proposed disclosure is made. 24 No Confidential Information shall be disclosed to an independent expert or consultant until 25 any objections to the proposed disclosure of that material have been resolved by the parties or 26 the Court. 27 Opposing counsel agree that they will not depose or interview such expert or 28 consultant until and unless the expert is designated as a testifying expert by the party -6- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 proposing the disclosure, and that such designation must be timely made in accordance with 2 the applicable rules of procedure; provided, however, that nothing herein shall prevent a party 3 from seeking leave of Court to depose or interview such expert. 4 5 8.1 Information designated “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY” must be viewed only by: 6 a. Outside Counsel (as defined in paragraph 3) of the receiving party; 7 b. Independent experts or consultants under the conditions set forth in this 8 Paragraph; 9 c. Court reporters employed by any party in this action; 10 d. Judges, law clerks, court reporters, and other clerical personnel of the 11 Court before which this action is pending; 12 e. 13 identified above; and 14 9. Stenographic and clerical employees associated with the individuals Information designated “CONFIDENTIAL” must be viewed only by the 15 persons authorized pursuant to the terms of paragraph 8, and by the additional individuals 16 listed below, provided each such individual has read this Order in advance of disclosure and 17 has agreed in writing to be bound by its terms: 18 a. 19 reference to this action; 20 b. 21 find it necessary to consult, in the discretion of such Counsel, in preparation 22 for trial of this action; and 23 c. 24 identified above. 25 10. Executives who are required to participate in policy decisions with Technical personnel of the parties with whom Counsel for the parties Stenographic and clerical employees associated with the individuals Because of the highly sensitive nature of the Source Code and because of the 26 ease with which electronic media may be copied, transported, or stolen, the Receiving Party 27 will maintain the Source Code in a secure location. At the Receiving Party’s request, Source 28 Code shall be made available in electronic form on a stand-alone, non-networked computer -7- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 with all parts, software and other avenues that could be used to copy or transfer such data 2 blocked, for inspection in the United States at the offices of counsel for the Producing Party 3 or at such other location as may be mutually agreed by the parties upon reasonable notice. 4 Only persons designated under paragraphs 8(a), (b), or (f) above shall have access to the 5 Standalone Computer provided, however, that the following restrictions shall apply to such 6 access: 7 a) at least three (3) business days prior to the date on which access is sought to such 8 Standalone Computer (three-day notice period), counsel of record for the 9 Receiving Party shall provide a list of individuals including attorneys seeking to 10 access such Standalone Computer and the Designating Party shall have the right to 11 object to such access in accordance with paragraph 8 herein, unless the 12 Designating Party has already had the opportunity to object to a paragraph 8(b) 13 expert under paragraph 8, in which case the Designating Party shall not have a 14 right to object to the expert accessing the source code; 15 b) during the pendency of the three day notice period, no listed individual shall have 16 access to the Standalone Computer; 17 c) if an objection to any specific listed individual is made, that individual shall not 18 have access to the Standalone Computer until resolution of such objection; and 19 d) each time a person accesses the Standalone Computer, the person shall sign a sign- 20 in sheet prior to, and a sign-out sheet subsequent to, accessing the Standalone 21 Computer including the name of the person accessing, the date and time in and 22 out, and whether any hard copies were made. 23 11. The Receiving Party may not make nor attempt to make additional copies of 24 the Source Code or convert the Source Code into any electronic form in any manner, except 25 as set forth herein. 26 e) A printer shall be attached to the Standalone Computer and the Receiving Party 27 shall make no more than 500 total pages of hard copies of “HIGHLY 28 -8- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 CONFIDENTIAL – SOURCE CODE” material it in good faith considers to be 2 important to its analysis. 3 f) Whenever hard copies are made, copies of the hard copies shall be provided to 4 counsel for the Producing Party along with an identification of when the copies 5 were made and who made them. 6 7 g) Any hard copies shall be conspicuously marked “HIGHLY CONFIDENTIAL – SOURCE CODE” in conformity with this Order. 8 h) The Receiving Party shall keep a log including: (1) the custodian of each copy of 9 any “HIGHLY CONFIDENTIAL – SOURCE CODE” materials; (2) the name of 10 all persons accessing the “HIGHLY CONFIDENTIAL – SOURCE CODE” 11 materials; and (3) the date and time of access of the “HIGHLY CONFIDENTIAL 12 – SOURCE CODE” materials. 13 i) An expert who has printed hard copies of source code may make electronic pdf 14 copies of those hard copies for purposes of preparing his or her expert report, but 15 must destroy such copies upon termination of the litigation. 16 17 All “HIGHLY CONFIDENTIAL – SOURCE CODE” materials, including all copies, in the possession of the Receiving Party shall be maintained in a secured, locked area. 18 All “HIGHLY CONFIDENTIAL – SOURCE CODE” materials utilized during a 19 deposition or marked as an exhibit at a deposition will be retrieved by the party conducting 20 the deposition at the end of each day. At no time will any “HIGHLY CONFIDENTIAL – 21 SOURCE CODE” material be given to or left with the Court Reporter or any other individual. 22 Any brief, paper, pleading, or other submission to the Court that may contain copies, 23 portions, or excerpts of a Producing Party’s Source Code shall be filed under seal. The 24 Parties further agree that any brief, paper, pleading or other submission shall only contain as 25 much of the Source Code as the Party, in good faith, deems reasonably necessary. Any and 26 all such Source Code attachment shall be marked “HIGHLY CONFIDENTIAL - SOURCE 27 CODE” and to the extent submitted to the Court or presented at hearings or at trial. 28 -9- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 2 Nothing in this Order shall obligate the Parties to produce any Source Code, nor shall it act as an admission that any particular Source Code is discoverable. 3 12. With respect to material designated “CONFIDENTIAL,” “CONFIDENTIAL - 4 ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES 5 ONLY,” any person indicated on the face of the document to be its originator, author or a 6 recipient of a copy of the document, may be shown the same. 7 13. All information which has been designated as “CONFIDENTIAL,” 8 “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – OUTSIDE 9 ATTORNEYS’ EYES ONLY” by the producing or disclosing party, and any and all 10 reproductions of that information, must be retained in the custody of (a) the Counsel for the 11 receiving party identified in paragraph 3 for information designated as “CONFIDENTIAL,” 12 or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY”; or (b) the Outside Counsel for the 13 receiving party identified in paragraph 3 for information designated as “CONFIDENTIAL – 14 OUTSIDE ATTORNEYS’ EYES ONLY”; except that independent experts authorized to 15 view such information under the terms of this Order may retain custody of copies such as are 16 necessary for their participation in this litigation. 17 14. Before any materials produced in discovery, answers to interrogatories, 18 responses to requests for admissions, deposition transcripts, or other documents which are 19 designated as Confidential Information are filed with the Court for any purpose, the party 20 seeking to file such material must seek permission of the Court to file the material under seal. 21 15. At any stage of these proceedings, any party may object to a designation of the 22 materials as Confidential Information. If any such objection is made, the parties shall first 23 attempt to resolve any such dispute in good faith on an informal basis: 24 a. 25 party written notice of the disagreement, specifically identifying the 26 Confidential Information in dispute and articulating the challenging party’s 27 basis for its challenge of the confidentiality designation. 28 The party challenging the designation shall provide to the producing /// -10- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 b. The producing party shall respond in writing to the challenging party’s 2 notice within seven (7) calendar days, articulating the basis for the producing 3 party’s designation with sufficient particularity to enable the challenging party 4 to move the Court for permission to disclose the Confidential Information. 5 c. 6 intervention from the Court, the party challenging the confidentiality 7 designation may move the Court requesting appropriate relief. In any such 8 question brought before the Court, the party asserting the confidentiality 9 designation shall bear the burden of proving by clear and convincing evidence 10 that the information should be maintained at the confidentiality level 11 designated by the producing party. If the dispute cannot be resolved between the parties without 12 The materials at issue must be treated as Confidential Information, as designated by 13 the designating party, until the Court has ruled on the objection or the matter has been 14 otherwise resolved. 15 16. All Confidential Information must be held in confidence by those inspecting or 16 receiving it, and must be used only for purposes of this action. Counsel for each party, and 17 each person receiving Confidential Information must take reasonable precautions to prevent 18 the unauthorized or inadvertent disclosure of such information. If Confidential Information is 19 disclosed to any person other than a person authorized by this Order, the party responsible for 20 the unauthorized disclosure must immediately bring all pertinent facts relating to the 21 unauthorized disclosure to the attention of the other parties and, without prejudice to any 22 rights and remedies of the other parties, make every effort to prevent further disclosure by the 23 party and by the person(s) receiving the unauthorized disclosure. 24 17. No party will be responsible to another party for disclosure of Confidential 25 Information under this Order if the information in question is not labeled or otherwise 26 identified as such in accordance with this Order. 27 28 18. If a party, through inadvertence, produces any Confidential Information without labeling or marking or otherwise designating it as such in accordance with this Order, -11- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 the designating party may give written notice to the receiving party that the document or 2 thing produced is deemed Confidential Information, and that the document or thing produced 3 should be treated as such in accordance with that designation under this Order. The receiving 4 party must treat the materials as confidential, once the designating party so notifies the 5 receiving party. If the receiving party has disclosed the materials before receiving the 6 designation, the receiving party must notify the designating party in writing of each such 7 disclosure. Counsel for the parties will agree on a mutually acceptable manner of labeling or 8 marking the inadvertently produced materials as “CONFIDENTIAL,” “CONFIDENTIAL - 9 ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL OUTSIDE ATTORNEYS’ EYES 10 11 ONLY.” 19. Nothing within this order will prejudice the right of any party to object to the 12 production of any discovery material on the grounds that the material is protected as 13 privileged or as attorney work product. 14 20. Nothing in this Order will bar Counsel from rendering advice to their clients 15 with respect to this litigation and, in the course thereof, relying upon any information 16 designated as Confidential Information, provided that the contents of the information must 17 not be disclosed. 18 21. This Order will be without prejudice to the right of any party to oppose 19 production of any information for lack of relevance or any other ground other than the mere 20 presence of Confidential Information. The existence of this Order must not be used by either 21 party as a basis for discovery that is otherwise improper under the Federal Rules of Civil 22 Procedure. 23 22. Nothing within this order will be construed to prevent disclosure of 24 Confidential Information if such disclosure is required by law or by order of the Court. 25 Further, nothing herein shall preclude a party from having Confidential Information copied, 26 reproduced, or adapted by an outside professional copying, reproduction, or demonstrative 27 exhibit preparation service, provided that such service and the party using such service take 28 all steps reasonably available to protect the confidentiality of such material. -12- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 23. Third party witnesses may invoke all of the provisions of this Order which are 2 available to the parties. This provision does not abridge a third party’s right to seek to quash 3 any subpoena served on it, or to seek to protect information sought by a party, either on the 4 third party’s own motion or on a motion brought on its behalf by an objecting party. The 5 party seeking production from a third party witness who may possess Confidential 6 Information of the other party shall have the duty to provide a copy of this Order to that third 7 party witness prior to any production from that witness. The party seeking production shall 8 also have the duty to inform that third party witness of its rights under this Order and its 9 ability to designate any material it produces as Confidential Information. In addition, the 10 parties shall treat the Confidential Information of third parties in accordance with the terms of 11 this Order. 12 24. Upon final termination of this action, including any and all appeals, Counsel 13 for each party must, upon request of the producing party, return all Confidential Information 14 to the party that produced the information, including any copies, excerpts, and summaries of 15 that information, or must destroy same at the option of the receiving party, and must purge all 16 such information from all machine-readable media on which it resides. Notwithstanding the 17 foregoing, Counsel for each party may retain all pleadings, briefs, memoranda, motions, and 18 other documents filed with the Court that refer to or incorporate Confidential Information, 19 and will continue to be bound by this Order with respect to all such retained information. 20 Further, attorney work product materials that contain Confidential Information need not be 21 destroyed, but, if they are not destroyed, the person in possession of the attorney work 22 product will continue to be bound by this Order with respect to all such retained information. 23 25. The restrictions and obligations set forth within this order will not apply to any 24 information that: (a) the parties agree should not be designated Confidential Information; (b) 25 the parties agree, or the Court rules, is already public knowledge; (c) the parties agree, or the 26 Court rules, has become public knowledge other than as a result of disclosure by the receiving 27 party, its employees, or its agents in violation of this Order; or (d) has come or will come into 28 -13- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 the receiving party’s legitimate knowledge independently of the production by the 2 designating party. Prior knowledge must be established by pre-production documentation. 3 26. The restrictions and obligations within this Order will not be deemed to 4 prohibit discussions of any Confidential Information with anyone if that person already has or 5 obtains legitimate possession of that information. 6 27. 7 within this order. 8 28. 9 10 Transmission by email or facsimile is acceptable for all notification purposes This Order may be modified by agreement of the parties, subject to approval by the Court. 29. The Court may modify the terms and conditions of this Order for good cause, 11 or in the interest of justice, or on its own order at any time in these proceedings. The parties 12 prefer that the Court provide them with notice of the Court's intent to modify the Order and 13 the content of those modifications, prior to entry of such an order. 14 Respectfully submitted, 15 KNOBBE, MARTENS, OLSON & BEAR, LLP 16 17 Dated: _March 7, 2014_____________ 18 19 /s/Frederick S. Berretta Brenton R. Babcock Frederick S. Berretta Loni Schutte Marko R. Zoretic Yanna S. Bouris 20 McDONALD CARANO WILSON LLP Jeffrey A. Silvestri 21 22 Attorneys for Plaintiff/Counterdefendant SILVER STATE INTELLECTUAL TECHNOLOGIES, INC. 23 24 25 ERISE IP, P.A. 26 Dated: _March 7, 2014_______ 27 28 /s/Adam P. Seitz (with permission) Adam P. Seitz Abran J. Kean Paul R. Hart -14- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 2 PISANELLI BICE, PLLC James J. Pisanelli Christopher R. Miltenberger 3 4 Attorneys for Defendants/Counterclaimants GARMIN INTERNATIONAL, INC. and GARMIN USA, INC. 5 6 7 IT IS SO ORDERED: 8 9 10 UNITED STATES 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -15- First Amended Stipulated Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 2 EXHIBIT A IN THE UNITED STATES DISTRICT COURT 3 FOR THE DISTRICT OF NEVADA 4 5 6 SILVER STATE INTELLECTUAL TECHNOLOGIES, INC., a Nevada corporation, 7 Plaintiff/Counterdefendant, 8 9 10 v. GARMIN INTERNATIONAL, INC., a Kansas corporation, and GARMIN USA, INC., a Kansas corporation, 11 12 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Defendants/Counterclaimants. Case No. 2:11-cv-1578-PMP-PAL AGREEMENT TO BE BOUND BY FIRST AMENDED PROTECTIVE ORDER 13 I, __________________________________, declare and say that: 14 1. 15 16 I am employed as ____________________________________by ______________________________________________________________________. 2. I have read the First Amended Protective Order entered in Silver State 17 Intellectual Technologies, Inc. v. Garmin International, Inc. and Garmin USA, Inc., Case No. 18 11cv1578 PMP-PAL, and have received a copy of the Protective Order. 19 3. I promise that I will use any and all “Confidential,” “Confidential - Attorneys’ 20 Eyes Only,” “Confidential – Outside Attorneys’ Eyes Only,” or “Highly Confidential – 21 Source Code” information, as defined in the Protective Order, given to me only in a manner 22 authorized by the Protective Order, and only to assist Counsel in the litigation of this matter. 23 4. I promise that I will not disclose or discuss such “Confidential,” “Confidential 24 - Attorneys’ Eyes Only,” “Confidential – Outside Attorneys’ Eyes Only,” or “Highly 25 Confidential – Source Code” information with anyone other than the persons described in 26 paragraphs 3, 8 and 9 of the Protective Order. 27 28 -1- Acknowledgement of Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 5. I acknowledge that, by signing this agreement, I am subjecting myself to the 2 jurisdiction of the United States District Court for the District of Nevada with respect to 3 enforcement of the Protective Order. 4 6. I understand that any disclosure or use of “Confidential,” “Confidential - 5 Attorneys’ Eyes Only,” “Confidential – Outside Attorneys’ Eyes Only,” or “Highly 6 Confidential – Source Code” information in any manner contrary to the provisions of the 7 Protective Order may subject me to sanctions for contempt of court. 8 9 I declare under penalty of perjury that the foregoing is true and correct. 10 11 Date: 12 13 _______________________________________ 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- Acknowledgement of Protective Order Case no. 2:11-cv-1578-PMP-PAL 1 PROOF OF SERVICE 2 I hereby certify that on March 7, 2014, I caused the First Amended Stipulated 3 Protective Order to be electronically filed with the Clerk of the Court using the CM/ECF 4 system which will send electronic notification of such filing to the following person(s): 5 6 7 8 Jeffery A. Silvestri (NV Bar No. 5779) MCDONALD CARANO WILSON LLP 2300 West Sahara Avenue, Suite 1000 Las Vegas, NV 89102 Phone: (702) 873-4100 Facsimile: (702) 873-9966 Email: jsilvestri@mcdonaldcarano.com 9 10 11 12 13 14 Brenton R. Babcock (admitted pro hac vice) Marko R. Zoretic (admitted pro hac vice) KNOBBE, MARTENS, OLSON & BEAR, LLP 2040 Main Street, Fourteenth Floor Irvine, CA 92614 Phone: (949) 760-0404 Facsimile: (949) 760-9502 Email: brent.babcock@knobbe.com Email: marko.zoretic@knobbe.com Frederick S. Berretta (admitted pro hac vice) Loni Schutte (admitted pro hac vice) KNOBBE, MARTENS, OLSON & BEAR, LLP 12790 El Camino Real San Diego, CA 92130 Phone: (858) 707-4000 Facsimile: (858) 707-4001 Email: fred.berretta@knobbe.com Email: loni.schutte@knobbe.com Yanna S. Bouris (admitted pro hac vice) KNOBBE, MARTENS, OLSON & BEAR, LLP 10100 Santa Monica Blvd., Suite 1600 Los Angeles, CA 90067 Phone: (310) 551-3450 Facsimile: (310) 551-3458 Email: yanna.bouris@knobbe.com 15 16 Executed on March 7, 2014, at Overland Park, Kansas. 17 18 /Penny Dicks/ Penny Dicks 19 20 21 22 23 24 25 26 27 28 -1- Proof of Service Case no. 2:11-cv-1578-PMP-PAL