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Creative Integrated Systems, Inc v. Nintendo of America Inc

September 16, 2011


The opinion of the court was delivered by: Honorable Victor B. Kenton United States Magistrate Judge



Pursuant to Federal Rule of Civil Procedure ("FRCP") 26(c) and this Court's Standing April 22, 2008 Order Re: Protective Orders and Treatment of Confidential information ("Court's Order"), counsel for all parties hereby submit this Stipulated Protective Order.


This is a patent infringement action. Discovery and trial of this case will involve the exchange of highly sensitive information. Such information may include confidential business strategies, financial data, product design and manufacturing details, blueprints, customer lists, confidential research, development, or commercial information, and other information that is not available to the public. The parties agree that the disclosure of such highly sensitive information to the public may be detrimental to their respective commercial interests. Therefore, in agreement with the principles laid out in Foltz v. State Farm Mut. Auto. Ins. Co, 331 F.3d 1122 (9th Cir. 2003), the parties have agreed to this protective order.

WHEREAS, in connection with the above-captioned matter, certain information, documents and things containing trade secrets (as defined by California Civil Code § 3426.1), and other confidential business or commercial information within the meaning of Rule 26(c) of the Federal Rules of Civil Procedure, may be disclosed by the parties and/or nonparties voluntarily and/or in response to discovery demands;

WHEREAS, it would serve the interests of the parties to conduct discovery relating to this proceeding under a Protective Order pursuant to FRCP Rule 26(c); and

WHEREAS, the parties have agreed to be bound by the terms of this Stipulation and to present the same for entry as an Order of the Court;



Discovery materials and information produced in this case may be labeled as one of two categories: CONFIDENTIAL and CONFIDENTIAL ATTORNEYS' EYES ONLY, as set forth in Items A-B below. The two identified categories of information shall be identified collectively in this Order by the title "Protected Information." Any document derived from or containing "Protected Information" must also be designated with the appropriate category of confidentiality, according to the terms of this Order. Any discovery materials and information produced in this lawsuit as CONFIDENTIAL or CONFIDENTIAL ATTORNEYS' EYES ONLY may be used only for purposes of this litigation.

A.Information Designated as "Confidential"

The term "Confidential Information" as used in this Order shall mean all information or material produced for or disclosed to a Receiving Party that the Producing Party, including any party to this action and any non-party producing information or material voluntarily or pursuant to a subpoena or court order, considers to constitute or to contain trade secrets or other confidential research and development, technical, sales, marketing, financial, personnel, customer, vendor, or other commercial information, whether embodied in physical objects, documents, or the factual knowledge of persons, and which has been so designated by the Producing Party. Such information may include customer lists, sales records, invoices, price lists, blueprints, circuit diagrams, layouts, source code, block diagrams, process flow diagrams, manufacturing instructions, specifications, standard operating procedures, planning documents, market surveys, competitive intelligence, test methods, or other documents referring to, reflecting, and/or incorporating the foregoing. The term "trade secret" shall be defined according to the definition in California Civil Code § 3426.1 as "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."

1. Any document or tangible thing containing or including any Confidential Information may be designated as such by the Producing Party by marking it "CONFIDENTIAL" prior to or at the time copies are furnished to the Receiving Party.

2. All Confidential Information not reduced to documentary, tangible or physical form or which cannot be conveniently designated as set forth in paragraph 1, shall be designated by the Producing Party by informing the Receiving Party of the designation in writing.

3. Except as otherwise provided elsewhere in this protective order and/or in any supplemental protective order entered in this matter, any documents (including physical objects) made available for inspection by counsel for the Receiving Party prior to producing copies of selected items shall initially be considered, as a whole, to constitute Confidential Attorneys' Eyes Only information and shall be subject to this Order. Thereafter, the Producing Party shall have a reasonable time to review and designate the appropriate documents as CONFIDENTIAL, or CONFIDENTIAL ATTORNEYS' EYES ONLY.

4. Documents and information designated CONFIDENTIAL by a Producing Party may be disclosed or provided by a Receiving Party only to:

a. The Court;

b. Court personnel, mediators, special masters, discovery referees, and court reporters and videographers recording testimony in this action;

c. Outside counsel for the named parties and employees of such counsel to whom it is necessary that the Confidential Information be disclosed for purposes of this litigation;

d. In-house counsel with responsibility for managing or evaluating its participation in this litigation, in-house counsels' support staff (including paralegals, secretaries, and clerks), and up to five (5) non-attorney officers, directors, and employees to whom disclosure is reasonably necessary for this litigation, following identification of each employee or officer to each of the other parties, and provided that (i) prior to disclosure of such discovery material to any such individual, outside litigation counsel for the receiving party first obtains from such individual a signed Undertaking attached here to as Exhibit A, (ii) such outside litigation counsel maintains a copy of such Undertaking and produces a copy of such Undertaking to counsel for each of the other parties within seven (7) calendar days after execution;

e. Independent outside consultants and experts assisting counsel in this litigation, which shall not include Pachira IP, Inc. or Chipworks, Inc., subject to the provisions of paragraphs 18 to 22 below who have executed the Undertaking attached hereto as Exhibit A;

f. Employees of copying, imaging, and computer services for the purpose of copying, imaging, or organizing documents;

g. With respect to a particular document, an individual who is shown on the face of the document to have been an author, addressee, or recipient of that document;

h. Graphics, translation, or design services retained by counsel for purposes of preparing demonstrative or other exhibits for depositions, trial, or other court proceedings in the action; and

i. Any other person upon the prior written agreement of the Producing Party (which agreement may be recorded in a ...

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