The opinion of the court was delivered by: Marilyn L. Huff, District Judgeunited States District Court
PROTECTIVE ORDER BASED ON JOINT MOTION FOR PROTECTIVE ORDER BY MULTIMEDIA PATENT TRUST, LUCENT TECHNOLOGIES, INC, MICROSOFT CORPORATION, GATEWAY, AND DELL, INC.
On October 17, 2007, the parties submitted a joint motion for protective order. (Doc. No. 150.) The Court has reviewed the stipulated form of the protective order and made certain changes to it, thus creating the present order which the court now adopts.
WHEREAS, the parties in the above-captioned actions believe that discovery may involve the disclosure of confidential, trade secret, proprietary, technical, scientific, business, or financial information of a party or of a non-party;
WHEREAS, the parties desire to establish a mechanism to protect the disclosure of such information in these actions;
Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, IT IS HEREBY ORDERED THAT:
1. For purposes of this Protective Order, the following definitions shall apply:
(a) The term "DOCUMENT" shall have the full meaning ascribed to it by the Federal Rules of Civil Procedure and shall include without limitation any records, exhibits, reports, samples, transcripts, video or audio recordings, affidavits, briefs, summaries, notes, abstracts, drawings, company records and reports, answers to Interrogatories, responses to requests for admissions, or motions, including copies or computer-stored versions of any of the foregoing.
(b) The term "DISCLOSING PARTY" is defined herein as any party or non-party who is requested to produce or produces documents or testimony containing confidential information.
(c) The term "CONFIDENTIAL INFORMATION" is defined herein as information which has not been made public, the disclosure of which the disclosing party contends could cause harm to the business operations of the disclosing party or provide improper advantage to others, including but not limited to, trade secrets within the meaning of the Uniform Trade Secrets Act. For the avoidance of doubt, the term "trade secrets," as used in this paragraph, does not include "source code," which is covered by Paragraphs 1(d), 2(a) and 2(b).
(d) The term "OUTSIDE COUNSEL ONLY INFORMATION" is defined herein as CONFIDENTIAL INFORMATION that is commercial, financial or marketing in nature and that the disclosing party reasonably and in good faith believes is so highly sensitive that its disclosure to an employee of a receiving party would reveal business or financial information or advantages of the disclosing party. It includes information that the designating party reasonably and in good faith believes has significant competitive value and that relates to (1) current business/strategic plans, (2) sales, cost and price information including future sales/financial projections, (3) non-public marketing information including future marketing plans, (4) detailed sales and financial data, (5) customer lists, (6) other information of competitive, financial, or commercial significance comparable to the items listed in this paragraph, or (7) non-public computer source code, including any proprietary software source code or firmware source code. The disclosure of documents and information covered by item (7) of this paragraph shall be controlled by Paragraphs 2(a) and 2(b) concerning source code. For the avoidance of doubt, item (6) of this paragraph includes documents related to licensing, licensing policies, and licensing negotiations.
(e) "Outside Service Organization" is defined herein as an individual or organization that provides photocopying, document processing, translation or graphics services to counsel as part of discovery or preparation and trial of these actions.
(f) "Support Staff" is defined herein as permanent employees of counsel for the parties, including paralegals, clerical personnel and secretarial personnel.
(g) "Mock Jurors and Jury Consultants" are defined as mock jurors or jury consultants retained by a party in preparation for trial for this litigation. For any jury research, an appropriate screening must be used to ensure that the jury consultant(s) and mock jurors chosen for any mock jury are not current or former officers, directors, employees or consultants of any party or direct competitors of any party. Each jury consultant must agree to be bound by the terms of this protective order and must execute the agreement in Exhibit A. Each mock juror must agree to be bound by and execute the agreement in Exhibit B. The party retaining the mock jurors or jury consultants shall retain the executed agreements.
2. The parties agree that in responding to any request for production or interrogatory, the responding party has the option of referring to documents produced previously in case numbers 06-CV-0684-B (CAB); 02-CV-2060-B (CAB) consolidated with Case No. 03-CV-0699-B (CAB), Case No. 03-CV-1108-B (CAB); or 07-CV-2000-H (CAB). When referring to previously produced information, the party will identify, by date and number, the previous request for production and/or the previous interrogatory in response to which the information was produced. Alternatively, the responding party may reproduce the requested information.
3. If, in the course of this litigation, a party undertakes or is caused to disclose what the disclosing party contends is CONFIDENTIAL INFORMATION, including OUTSIDE COUNSEL ONLY INFORMATION, the procedures set forth herein shall be employed and the disclosure thereof shall be subject to this Protective Order. CONFIDENTIAL INFORMATION shall be used solely in the preparation, prosecution or trial of Case No. 07-CV-0747 H (CAB).
(a) Production of OUTSIDE COUNSEL ONLY INFORMATION comprising computer source code, related either to software or firmware, is subject to the following provisions:
(i) The receiving party shall identify to the disclosing party which features of the disclosing party's accused software, or firmware, infringe specific claims of the receiving party's patents.
(ii) If the receiving party has fulfilled the requirements of subsection (i) of this paragraph, the disclosing party shall provide to the receiving party the source code for the module(s) or portion(s) corresponding to the features that the receiving party alleges infringe its patent claims.
(b) For the avoidance of doubt, "source code" includes, but is not limited to, source files, make files, intermediate output files, header files, resource files, library files, module definition files, map files, object files, linker files, browse info files, and debug files.
4. By entering this Order and limiting the disclosure of information in this case, the Court does not intend to preclude another court from finding that any information may be relevant and subject to disclosure in another case. Any person or party subject to this Order that may be subject to a motion to disclose another party's information designated under one of the categories of confidentiality pursuant to this Order, shall promptly notify that party of the motion so that it may have an opportunity to appear and be heard on whether that information should be disclosed.
5. Any document which contains CONFIDENTIAL INFORMATION should be so designated by the disclosing party prior to or at the time of disclosure by placing the notation "CONFIDENTIAL" or "OUTSIDE COUNSEL ONLY" on every page of each document so designated. In the case of CONFIDENTIAL INFORMATION disclosed in a non-paper medium, (e.g., videotape, audiotape, computer disks, etc.), the notation "CONFIDENTIAL" or "OUTSIDE COUNSEL ONLY" should be placed on the medium, if possible, and its container, if any, so as to clearly give notice of the designation. Such designation is deemed to apply to the document itself and to the CONFIDENTIAL INFORMATION contained therein. If any items produced in a non-paper medium are printed out by the receiving party, the receiving party must mark each page of the printed version with the confidentiality designation.
6. The inadvertent failure to designate CONFIDENTIAL INFORMATION as "CONFIDENTIAL" or "OUTSIDE COUNSEL ONLY" prior to or at the time of disclosure shall not operate as a waiver of a disclosing party's right to designate said information as "CONFIDENTIAL" or "OUTSIDE COUNSEL ONLY." In the event that CONFIDENTIAL INFORMATION is designated as "CONFIDENTIAL" or "OUTSIDE COUNSEL ONLY" after disclosure, a receiving party shall employ reasonable efforts to ensure that all such information is subsequently treated as "CONFIDENTIAL" or "OUTSIDE COUNSEL ONLY" pursuant to the terms of this Protective Order. Disclosure of such CONFIDENTIAL INFORMATION to persons not authorized to receive that information prior to receipt of the confidentiality designation shall not be deemed a violation of this Protective Order. However, in the event the document has been distributed in a manner inconsistent with the designation, a receiving party will take the steps necessary to conform distribution to the designation: i.e., returning all copies of the "CONFIDENTIAL" or "OUTSIDE COUNSEL ONLY" document, or notes or extracts thereof, to the persons authorized to possess such documents. In the event distribution has occurred to a person not under the control of a receiving party, a request for return of the document, and for an undertaking of confidentiality, shall be made in writing. In the event the request is not promptly agreed to in writing, or in the event there is no response, or in the event that the party deems the making of the request to be a useless act, the party shall promptly notify the disclosing party of the distribution and all pertinent facts concerning it, including the identity of the person or entity not under the control of the receiving party.
7. Access to CONFIDENTIAL INFORMATION, not including OUTSIDE COUNSEL ONLY INFORMATION, shall be limited to the following individuals: (a) counsel of record in these actions (including counsel's Support Staff and Outside Service Organizations); (b) court reporters and videographers taking testimony and their support personnel; (c) the Court and any authorized Court Personnel; (d) Mock Jurors and Jury Consultants; (e) independent consultants and experts retained by counsel for assistance with respect to this litigation who are designated by each party respectively pursuant to paragraph 10 below, including such consultant's or expert's necessary clerical and support staff; and (f) no more than five (5) officers or employees (including in-house counsel) designated by each party respectively pursuant to paragraph 16 below.
8. In no event shall CONFIDENTIAL INFORMATION be stored at any business premises of the receiving party unless such information is stored in a secured area and accessible only to persons eligible to review such information.
9. Access to OUTSIDE COUNSEL ONLY INFORMATION, other than papers or pleadings filed with the Court (but excluding exhibits attached to such papers and pleadings), shall be limited to the following individuals: (a) counsel of record in these actions (including counsel's Support Staff and Outside Service Organizations, but not in-house counsel); (b) court reporters and videographers taking testimony and their support personnel; (c) the Court and any authorized Court Personnel; (d) Mock Jurors and Jury Consultants; and (e) independent consultants and experts retained by counsel for assistance with respect to this litigation who are designated by each party respectively pursuant to paragraph 10 below, including such consultant's or expert's necessary clerical and support staff.
10. Papers or pleadings, including briefs and declarations or affidavits, but excluding exhibits to such papers, filed with the Court, and drafts thereof, which contain or refer to OUTSIDE COUNSEL ONLY INFORMATION shall be treated as if designated CONFIDENTIAL INFORMATION, in order to permit litigation counsel to adequately communicate with their respective clients and keep their clients informed as to the status and progress of the litigation. OUTSIDE COUNSEL ONLY INFORMATION shall not be stored at any business premises of any party.
11. Prior to disclosing any CONFIDENTIAL INFORMATION, including OUTSIDE COUNSEL ONLY INFORMATION, to outside experts or consultants, the party seeking to disclose such information shall provide the other party with: (i) the name of the person; (ii) the present employer and title of the person; (iii) an up-to-date curriculum vitae of the person; and (iv) an identification of any work performed for or on behalf of the other party by that person within the siX (6) year period before the filing of the above-captioned action. This information shall be sent by facsimile. Within five (5) business days of receipt of this information, the other party may object to the proposed outside expert or consultant on a reasonable basis.
(a) If objection to disclosure is made within the time required, the plaintiff and defendant shall meet and confer within five (5) business days; and, if not resolved, the party disclosing the information shall move for a protective order precluding the disclosure of the information to the designated ...