The opinion of the court was delivered by: Honorable James Ware United States District Judge
STIPULATED PROTECTIVE ORDER (MODIFIED BY THE COURT) AND RELATED COUNTERCLAIMS AGREED PROTECTIVE ORDER
Plaintiff Mformation Technologies, Inc. ("Mformation") and Defendants Research In Motion Limited ("RIM Ltd.") and Research In Motion Corporation ("RIM Corp.") (collectively, "RIM") hereby stipulate that the following Protective Order ("Order") regarding confidential information may be entered by the Court:
1. INTRODUCTION AND SCOPE
This Order shall govern all documents and things (whether or not embodied in any physical medium) exchanged during this action, including but not limited to documents produced by the parties or non-parties, testimony taken at a hearing or other proceeding, and discovery, including but not limited to deposition testimony, interrogatory answers, and responses to requests for admission. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords extends only to the limited information or items that are entitled under the applicable legal principles to treatment as confidential. The parties further acknowledge that this Order creates no entitlement to file confidential information under seal; Northern District Civil Local Rule 79-5 sets forth the procedures that must be followed and reflects the standards that will be applied when a party seeks permission from the Court to file material under seal.
Production or disclosure of "CONFIDENTIAL," "CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY -- COMPUTER SOURCE CODE" information under this Order shall not prejudice the right of any party making that production or disclosure to maintain the trade secret status or confidentiality of that information in other contexts.
2. DISCOVERY RULES REMAIN UNCHANGED
Nothing herein shall alter or change in any way the discovery provisions set forth by the Federal Rules of Civil Procedure, the Local Rules for the Northern District of California, or Judge Ware. Identification of any individual pursuant to this Order does not make that individual available for deposition or any other form of discovery outside of the restrictions and procedures of the Federal Rules of Civil Procedure and the Court's Deadlines set out in the applicable Scheduling Order. Nothing in this Order shall be construed to require a party to produce or disclose information not otherwise required to be produced under the applicable rules or orders of this Court.
3. DEFINITIONS AND DESIGNATIONS
The term "Discovery Material" shall refer to all items or information, regardless of the medium or manner generated, stored, or maintained (including, among other things, testimony, transcripts, or tangible things) that are produced or generated in disclosures or responses to discovery in this matter.
3.2. Protected Information
Protected Information is defined in this Order as any Discovery Material that the Disclosing Party in good faith designates as "CONFIDENTIAL," "CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY -- COMPUTER SOURCE CODE."
Protected Information also includes any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations, or presentations by parties or counsel to or in court or in other settings that might reveal Protected Information.
Any Protected Information obtained by any party from any person pursuant to discovery in this litigation or otherwise may be used only for purposes of preparation and litigation of this matter, and may not be used for any other purpose, including but not limited to use in other litigations, use for business purposes, or use for patent prosecution or for providing strategic patent prosecution advice other than specifically provided for in Section 5 of this Protective Order.
In no event shall an employee, officer, or director of any party to this action or of any competitor of any party to this action have access, without a court order or the written consent of the Designating Party, to Protected Information relating to merger and acquisition activities or source code.
The term "Designating Party" refers to the party who, in good faith, designates Protected Information pursuant to the terms of this Order.
3.4. Confidential Information
Discovery Material may be designated as "CONFIDENTIAL INFORMATION" where such Discovery Material relates to non-public, sensitive or confidential information. For purposes of this Order, "CONFIDENTIAL INFORMATION" shall mean all information or material which is produced for or disclosed, either through the formal discovery process or informally, to a Receiving Party, which a Producing Party, including any party to this action and any non-party producing information or material voluntarily or pursuant to a subpoena or a court order, considers to constitute or to contain trade secrets or other confidential research, development, commercial, or other information, whether embodied in physical objects, documents, or the factual knowledge of persons, and which has been so designated by the Producing Party.
3.5. Confidential - Attorneys Eyes Only
A party may additionally designate Discovery Material as "CONFIDENTIAL -ATTORNEYS' EYES ONLY." Discovery Material may be designated as "CONFIDENTIAL -ATTORNEYS' EYES ONLY" if such Discovery Material is extremely sensitive and if disclosure of such Discovery Material to another Party or non-party would create a substantial risk of serious injury that could not be avoided by less restrictive means.
3.6. Confidential - Attorneys Eyes Only - Computer Source Code
Discovery Material containing computer source code or similar confidential programming statements or instructions that in general are converted into machine language by compilers, assemblers, or interpreters may be designated as "CONFIDENTIAL - ATTORNEYS' EYES ONLY - COMPUTER SOURCE CODE."
3.7. Non-Confidential Information
The following is not "CONFIDENTIAL INFORMATION," "CONFIDENTIAL -- ATTORNEYS' EYES ONLY INFORMATION" or "CONFIDENTIAL -- ATTORNEYS' EYES ONLY -- COMPUTER SOURCE CODE:"
a. any information which, at the time of disclosure to a Receiving Party, is lawfully in the public domain;
b. any information which, after disclosure to a Receiving Party, lawfully becomes part of the public domain as a result of publication not involving a violation of this Order;
c. any information that a Receiving Party can show was received by it, whether before or after the disclosure, from a source who obtained the information lawfully and under no obligation of confidentiality to the Producing Party; and
d. any information that a Receiving Party can show was independently developed by it after the time of disclosure by personnel who have not had access to the Producing Party's Protected Information.
The term "Outside Counsel" shall mean attorneys who are not employees of any named party to this action, or any Related Entity, but who are retained to represent or advise a named party to this action, or any Related Entity, including support personnel, paralegals, consultants, legal secretaries, legal clerks, technical advisors, employees of outside vendors providing copy services, document and exhibit preparation services, and jury consultant and research services.
The term "Outside Consultant" shall mean any outside person (and their support personnel) who is not an employee of a party or any of the individuals or entities described in Section 3.8, and who is identified as an expert whose opinions may be presented at trial of this case, or is retained or specially employed in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, including but not limited to, a proposed expert witness with whom counsel may deem it necessary to consult concerning technical, financial, or other aspects of this case for the preparation or trial thereof. This term is to be construed within the meaning of Fed. R. Civ. P. 26(b)(4)(a)-(b).
A Related Entity is defined in this Order as any parent, subsidiary or other legal business entity owned or controlled by a common parent.
A Party that receives Discovery Material from a Producing Party.
A Party or non-party that produces Discovery Material in this action.
Court Staff is defined in this Order as the Court and its personnel, court reporters, independent shorthand reporters, and their staffs, and videographers, interpreters, or translators engaged for depositions or proceedings necessary to this case.
4. TIME AND MANNER OF DESIGNATION
Each Party or non-party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. A Producing Party must take care to designate for protection only those parts of material, documents, items, or oral or written communications that qualify, so that other portions of the material, documents, items, or ...