The opinion of the court was delivered by: Honorable Victor B. Kenton
AND RELATED COUNTERCLAIMS
ORDER AND STATEMENT OF GOOD CAUSE
Plaintiff Nomadix, Inc. and Defendants Hewlett-Packard Company, Wayport, Inc., iBAHN Corporation, Guest-Tek Interactive Entertainment Ltd., Guest-Tek Interactive Entertainment Inc., LodgeNet Interactive Corporation, LodgeNet StayOnline, Inc., On Command Corporation, Aruba Networks, Inc., Superclick, Inc. and Superclick Networks, Inc. (collectively, the "Parties"; individually, a "Party") agree that disclosure and discovery activities in this action are likely to involve production of highly sensitive financial or business information or proprietary information that has not been disseminated to the public at large, that is not readily discoverable by competitors and that has been the subject of reasonable efforts by the respective Parties to maintain its secrecy, and for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation would be warranted. Such information likely will include, among other things, sensitive product information, product design and development materials, engineering materials, marketing and sales information, purchase orders, invoices, distributor information, and customer information relating to network gateway devices and high-speed Internet access services.
Each Party wishes to ensure that such confidential information shall not be used for any purpose other than this action and shall not be made public by another Party beyond the extent necessary for purposes of this action. The Parties therefore seek to facilitate the production and protection of such information. The Parties acknowledge that this Protective 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 Protective Order creates no entitlement to file confidential information under seal.
Good cause exists to enter the instant Protective Order to protect such confidential information from public disclosure. The confidential information includes information that could be used by actual or potential competitors to gain a competitive advantage in the marketplace. Moreover, at least some of the Parties are themselves competitors.
Accordingly, based upon the agreement of the Parties and for good cause shown,
IT IS HEREBY ORDERED that whenever, in the course of these proceedings, any Party or non-party has occasion to disclose information deemed in good faith to constitute confidential information, the Parties and any such non-party shall employ the following procedures:
1. As used herein, "document" shall have the meaning ascribed to it in Federal Rule of Civil Procedure 34(a), and shall include all "writings," "recordings," and "photographs" as those terms are defined by Rule 1001 of the Federal Rules of Evidence.
2. The term "Litigation Material" encompasses all documents, exhibits, excerpts, summaries, pleadings, reports, declarations, affidavits, testimony, transcripts, interrogatory responses, admissions, or other discovery material and any copies thereof.
3. The term "Producing Party" refers to any Party or non-party that provides Litigation Material.
4. The term "Receiving Party" refers to any Party or non-party that receives, is shown or is otherwise exposed to Litigation Material.
5. The term "Action" refers to the suit pending in the United States District Court for the Central District of California as Nomadix, Inc. v. Hewlett-Packard Company et al., Case No. CV09-8441 DDP (VBKx).
6. The term "Termination of this Action" refers to the completion of this Action through exhaustion of all appeals from orders and final judgments and/or settlement by the Parties.
7. Any Producing Party may designate Litigation Material as "Confidential" or "Highly Confidential -- Attorneys' Eyes Only" in accordance with this Protective Order.
8. Nothing in this Protective Order is meant to apply to source code or material designated "Highly Confidential -- Source Code -- Restricted Access Only Material." The Parties anticipate addressing the designation of, disclosure of, and security provisions regarding source code in a separate addendum to this Protective Order to be filed later.
9. The terms "Confidential Material" and "Highly Confidential -- Attorneys' Eyes Only Material" refer to: any Litigation Material designated "Confidential" and "Highly Confidential -- Attorneys' Eyes Only," respectively; any copies thereof; and the information contained in such Litigation Material or such copies, including summaries of such information. The term "Protected Material" refers collectively to Litigation Material that has been designated Confidential Material and/or Highly Confidential -- Attorneys' Eyes Only Material.
10. The designation of any Litigation Material as "Confidential" or "Highly Confidential -- Attorneys' Eyes Only" shall be deemed effective unless and until the Court orders otherwise or the Producing Party revokes the designation pursuant to paragraph 37.
11. To designate Litigation Material as "Confidential" or "Highly Confidential -- Attorneys' Eyes Only," a Producing Party shall, when practicable, place the words "Confidential" or "Highly Confidential -- Attorneys' Eyes Only," respectively, clearly on each page or portion of the Litigation Material the Producing Party seeks to protect pursuant to this Protective Order. In particular, electronic documents, documents in native format and/or data shall be so marked when practicable and, when not practicable, the disks, hard drives, or other media containing such documents and/or data shall be appropriately marked.
12. If, during any deposition in this Action, (i) a Producing Party's Protected Material is disclosed or discussed or (ii), with respect to a given Producing Party, some of the deposition testimony otherwise qualifies for a confidentiality designation pursuant to any of paragraphs 15 through 16, the Producing Party may designate the pertinent deposition testimony (including exhibits) as "Confidential" or "Highly Confidential -- Attorneys' Eyes Only" by:
(a) stating on the record during the deposition which portions of the testimony should be so designated; or
(b) providing captioned, written notice to the reporter and all counsel of record of the page and line numbers of any portion of the transcript disclosing or discussing Protected Material, the number of any exhibits containing Protected Material, and the designation corresponding to each. Such notice by the Producing Party shall be given within thirty (30) business days after the Producing Party receives written notice that a final transcript is available for review, in which case all counsel receiving such notice from the Producing Party shall be responsible for marking the copies of the designated transcript or portion thereof in their possession or control as directed by the Producing Party.
13. If deposition testimony is designated pursuant to paragraph 12, one of the following legends, some combination thereof or a legend substantially similar to the same shall be placed on the front of any transcript or recording of such deposition:
Contains CONFIDENTIAL MATERIAL. Designated parts not to be used, copied or disclosed except as authorized by court order or the party or parties whose CONFIDENTIAL MATERIAL is included. or
Contains HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY MATERIAL. Designated parts not to be used, copied or disclosed except as authorized by court order or the party or parties whose HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY MATERIAL is included.
14. From the time of any deposition through the end of thirty-one (31) business days after a final transcript of the deposition is made available by a reporter, the deposition (including exhibits) and any transcript or recording thereof shall be treated as Highly Confidential -- Attorneys' Eyes Only Material. At the end of the thirty-one (31) business days, the deposition (including exhibits) and any transcript or recording thereof shall be treated as public information (with no confidentiality designation) except to the extent designated pursuant to paragraph 12.
15. Litigation Material may be designated "Confidential" if it is or contains: (a) information that is non-public; (b) information that includes trade secret or other confidential research, development, or commercial information, the disclosure of which the Producing Party reasonably believes could cause harm to the business operations of the Producing Party or provide improper business or commercial advantage to others; or (c) information that is protected by a right of privacy under federal or state law or any other applicable privilege or right related to confidentiality or privacy.
16. Litigation Material may be designated "Highly Confidential -- Attorneys' Eyes Only" if it is or contains non-public information so commercially sensitive that disclosure of the information to an unaffiliated Party or non-parties would likely harm the competitive commercial position of the Producing Party or a non-party. The following are sample categories of Litigation Material qualifying for the "Highly Confidential -- Attorneys' Eyes Only" designation:
(a) documents that describe the structure and/or operation of a Producing Party's product at issue in this Action, including schematic diagrams, manufacturing drawings, engineering drawings, engineering change orders, engineering notebooks, specifications, software design documentation, system architecture documentation, research notes and materials, and other technical descriptions and/or depictions;
(b) documents relating to a Producing Party's prosecution of (i) unpublished patent applications or (ii) patents that have not yet issued and that ...