The opinion of the court was delivered by: The Honorable Marc L. GoldmanUnited States Magistrate Judge
JOINT PROPOSED PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIAL
MICHAEL A. JACOBS (CA SBN 111664) firstname.lastname@example.org RICHARD S.J. HUNG (CA SBN 197425) email@example.com FRANCIS C. HO (CA SBN 247426) firstname.lastname@example.org MORRISON & FOERSTER LLP 425 Market Street San Francisco, CA 94105-2482 Telephone: (415) 268-7000 Facsimile: (415) 268-7522 BITA RAHEBI (CA SBN 209351) email@example.com MORRISON & FOERSTER LLP 555 West Fifth Street, Suite 3500 Los Angeles, CA 90013-1024 Telephone: (213) 892-5200 Facsimile: (213) 892-5454 Attorneys for Defendant and Counterclaim Plaintiff Apple Inc.
STIPULATION AND [PROPOSED] PROTECTIVE ORDER
WHEREAS, Plaintiff Ancora Technologies, Inc. and Defendant Apple Inc., hereafter referred to as "the Parties," believe that certain information that is or will be encompassed by discovery demands by the Parties involves the production or disclosure of Trade Secrets, confidential business information, or other proprietary information;
WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with Federal Rule of Civil Procedure 26(c):
THEREFORE, it is hereby stipulated among the Parties and ORDERED that: 1. As used in this Protective Order, the following terms shall have the meanings set forth below.
(a) "Patent-in-Suit" means U.S. Patent No. 6,411,941, and any other patent asserted in this action, as well as any continuations, continuations-in-part and/or divisionals.
(b) "Producing Party" means any Party or non-party entity that discloses or produces any Discovery Material in this case.
(c) "Receiving Party" means any Party who receives Discovery Material from a Producing Party.
(d) "Source Code" means computer code, scripts, assembly, object code, source code listings and descriptions of source code, object code listings and descriptions of object code, and Hardware Description Language (HDL) or Register Transfer Level (RTL) files that describe the hardware design of any ASIC or other chip.
(e) "Trade Secret(s)" shall have the meaning set forth in California Civil Code § 3426.1 as follows: "information, including a formula, pattern, compilation, program, device, method, technique, or process that
(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and (2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."
2. Each Party may designate as confidential for protection under this Order, in whole or in part, any document, information or material that constitutes or includes, in whole or in part, confidential or proprietary information or Trade Secrets of the Party or a Third Party to whom the Party reasonably believes it owes an obligation of confidentiality with respect to such document, information or material ("Protected Material"). Protected Material shall be designated by the Party producing it by affixing a legend or stamp on such document, information or material as follows: "CONFIDENTIAL." The word "CONFIDENTIAL" shall be placed clearly on each page of the Protected Material (except deposition and hearing transcripts) for which such protection is sought. For deposition and hearing transcripts, the word "CONFIDENTIAL" shall be placed on the cover page of the transcript (if not already present on the cover page of the transcript when received from the court reporter) by each attorney receiving a copy of the transcript after that attorney receives notice of the designation of some or all of that transcript as "CONFIDENTIAL."
3. Any document produced before issuance of this Order with the designation "Confidential" or "Confidential - Outside Attorneys' Eyes Only" shall receive the same treatment as if designated "CONFIDENTIAL -ATTORNEYS' EYES ONLY" under this Order, unless and until such document is redesignated to have a different classification under this Order.
4. With respect to documents, information or material designated "CONFIDENTIAL," "CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "RESTRICTED CONFIDENTIAL SOURCE CODE" ("DESIGNATED MATERIAL"),*fn1 subject to the provisions herein and unless otherwise stated, this Order governs, without limitation: (a) all documents, electronically stored information, and/or things as defined by the Federal Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits or for identification in depositions and hearings;
(c) pretrial pleadings, exhibits to pleadings and other court filings;
(d) affidavits; and (e) stipulations. All copies, reproductions, extracts, digests and complete or partial summaries prepared from any DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such under this Order.
5. A designation of Protected Material (i.e., "CONFIDENTIAL," "CONFIDENTIAL - ATTORNEYS' EYES ONLY," or "RESTRICTED -CONFIDENTIAL SOURCE CODE") may be made at any time. Inadvertent or unintentional production of documents, information or material that has not been designated as DESIGNATED MATERIAL shall not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party that inadvertently or unintentionally produces Protected Material without designating it as DESIGNATED MATERIAL may request destruction of that Protected Material by notifying the recipient(s), as soon as reasonably possible after the Producing Party becomes aware of the inadvertent or unintentional disclosure, and providing replacement Protected Material that is properly designated. The recipient(s) shall then destroy all copies of the inadvertently or unintentionally produced Protected Materials and any documents, information or material derived from or based thereon.
6. "CONFIDENTIAL" documents, information and material may be disclosed only to the following persons, except upon receipt of the prior written consent of the designating party, upon order of the Court, or as set forth in paragraph 13 herein:
(a) outside counsel of record in this Action for the Parties;
(b) employees of such counsel assigned to and reasonably necessary to assist such counsel in the litigation of this Action
(c) subject to the requirements of paragraph 14 herein, up to (2) in-house counsel for the Parties who either have responsibility for making decisions dealing directly with the litigation of this Action, or who are assisting outside counsel in the litigation of this Action, as well as their immediate paralegals and staff, and any copying or clerical litigation support services working at the direction of such counsel, paralegals, and staff;
(d) subject to the requirements of paragraph 14 herein, up to and including three (3) designated representatives of each of the Parties to the extent reasonably necessary for the litigation of this Action, except that 1) the Parties agree to address at a later time whether DESIGNATED MATERIAL may be disclosed to Miki Mullor of Plaintiff Ancora Technologies, Inc.*fn2 and 2) either party may in good faith request the other party's consent to designate one or more additional representatives, the other party shall not unreasonably withhold such consent, and the requesting party may seek leave of Court to designate such additional representative(s) if the requesting party believes the other party has unreasonably withheld such consent;
(e) subject to the requirements of paragraphs 11-13 herein, consultants and experts who have been retained by the receiving party or its outside counsel of record to provide assistance in this matter (with disclosure only to the extent necessary to perform such work) and who are not current employees of the receiving party (however, a party is not precluded from moving for leave to permit disclosure of CONFIDENTIAL materials to one or more designated employees);
(f) independent litigation support services, including persons working for or as court reporters, graphics or design services, jury or trial consulting services, and photocopy, document imaging, and database services retained by counsel and reasonably ...