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In Re: Google android Consumer v. Pandora Media

October 20, 2011

IN RE: GOOGLE ANDROID CONSUMER
PRIVACY LITIGATION
TROY YUNCKER, INDIVIDUALLY AND ON BEHALF OF
ALL OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
PANDORA MEDIA, INC.,
DEFENDANT.



DAVID H. KRAMER, State Bar No. 168452 MICHAEL H. RUBIN, State Bar No. 214636 2 WILSON SONSINI GOODRICH & ROSATI Professional Corporation 3 650 Page Mill Road Palo Alto, CA 94304-1050 4 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 5 Email: mrubin@wsgr.com 6 TONIA OUELLETTE KLAUSNER (Not Admitted) BRIAN M. WILLEN (Not Admitted) WILSON SONSINI GOODRICH & ROSATI Professional Corporation 8 1301 Avenue of the Americas 40th Floor 9 New York, NY 10019 Telephone: (212) 999-5800 10 Facsimile: (212) 999-5899 11 Attorneys for Defendant Google Inc. [Additional Counsel Listed on Signature Page] 12 13

[PROPOSED] STIPULATED ) PROTECTIVE ORDER FOR THE TREATMENT OF ) CONFIDENTIAL INFORMATION

2 disputes over confidentiality of discovery material, to adequately protect information the parties 3 are entitled to keep confidential, to ensure that only the materials the parties are entitled to keep 4 confidential are subject to such treatment, and to ensure that the parties are permitted reasonably 5 necessary uses of confidential discovery material in preparation for and in the conduct of this 6 litigation, pursuant to Fed. R. Civ. P. 26(c), it is hereby ORDERED THAT:

responses, testimony, or other information produced by the producing party in this litigation is 11 considered "Discovery Material." This Order applies not only to Discovery Material produced in 12 this litigation, but also to any information copied or extracted therefrom or otherwise reflecting 13

Protected Information, in any form. Any Discovery Material containing or including confidential 14 information may be designated as such by the producing party by marking it CONFIDENTIAL-SOURCE CODE" prior to or at the time copies are furnished to the 17 receiving party, and shall be treated in accordance with the terms of this Order. Each of the 18 identified categories of confidential Discovery Material shall be identified collectively in this

2. All Protected Information not reduced to documentary, tangible or

physical form, or which cannot be conveniently designated as set forth in paragraph I.A.1 or 22 pursuant to another confidentiality designation set forth in this Order, shall be designated by the 23 producing party by informing the receiving party of the designation in writing. 24

25 made available for inspection by counsel for the receiving party prior to producing copies of 26 items selected by the receiving party shall initially be considered, as a whole, to constitute 27

Protected Information (unless otherwise designated at the time of inspection) and shall be subject 28 to this Order. Thereafter, the producing party shall have a reasonable time to review and

[PROPOSED] STIPULATED PROTECTIVE ORDER -2- CASE NO. 11-MD-02264 JSW

CASE NO. 11-CV-03113 JSW

To expedite the production of discovery material, to facilitate the prompt resolution of

I. INFORMATION SUBJECT TO THIS ORDER

A. Protected Information Generally

1. All documents, tangible things, physical objects, written discovery

"CONFIDENTIAL," "CONFIDENTIAL-OUTSIDE COUNSEL ONLY" or "RESTRICTED 16

Order as "Protected Information." 20

3. Any Discovery Material (including physical objects and tangible things)

designate the appropriate documents as CONFIDENTIAL, CONFIDENTIAL-OUTSIDE 2

COUNSEL ONLY or RESTRICTED CONFIDENTIAL-SOURCE CODE, if appropriate, prior 3 to furnishing copies to the receiving party. 4

5 pursuant to discovery in this litigation shall be used solely for purposes of this litigation. 6

7 its own Protected Information. 8

10 party, becomes part of the public domain as a result of publication not involving a violation of 11 this Order or other obligation to maintain the confidentiality of such material; 12

13 already publicly known prior to the disclosure; and, 14

15 written records was received by it from an alternate source that obtained the material lawfully 16 and under no obligation of confidentiality to the producing party. 17

4. Any Protected Information that is obtained by any party from any person

5. Nothing in this Order shall limit any producing party's use or disclosure of

6. The following Discovery Material is not Protected Information:

a. Any Discovery Material that is or, after its disclosure to a receiving

b. Any Discovery Material that the receiving party can show was

c. Any Discovery Material that the receiving party can show by

B. Protected Information Designated Confidential

1. For purposes of this Order, Protected Information designated

CONFIDENTIAL shall mean all Discovery Material produced for or disclosed in connection 20 with this action to a receiving party that constitutes confidential or commercially sensitive 21 technical, sales, marketing, personal, or financial information of the producing party (including 22 any party to this action and any non-party producing information or material voluntarily or 23 pursuant to a subpoena or a court order in connection with this action), or information that the 24 producing party is under a legal obligation to maintain as confidential, whether embodied in 25 documentary, tangible or physical form, or the factual knowledge of persons, and which has been 26 so designated by the producing party. 27

28 therein shall be available only to:

2 employed in the law firm(s) of outside litigation counsel of record, such as attorneys, paralegals, 3 legal translators, legal secretaries, law clerks, project managers and litigation support personnel; 4

5 managing this litigation, who are members of at least one state bar in good standing, and 6 supporting personnel employed by the legal department of any party to this litigation and one 7 officer level employee of a party who either has responsibility for making decisions dealing 8 directly with the litigation in this action or who is assisting outside counsel in preparation for 9 proceedings in this action; 10

c. Advisers and their necessary support personnel engaged by counsel

11 of record for the parties, subject to the provisions of section III herein, and provided that such 12 individuals have first been given a copy of this Order and have executed the Confidentiality 13

Agreement attached hereto as Attachment A. The term "Adviser" shall mean independent 14 outside expert witnesses, consulting experts, or technical consultants (i.e., not employees of a 15 party) retained by counsel of record for the parties who are deemed reasonably necessary to assist 16 such counsel in connection with this litigation; 17

d. Independent contractors engaged by counsel of record for the

18 parties, to the extent reasonably necessary to assist such counsel in connection with this 19 litigation, including but not limited to (i) legal translators retained to translate in connection with 20 this action; (ii) independent stenographic reporters and videographers retained to record and 21 transcribe testimony in connection with this action; (iii) graphics or design services retained by 22 counsel for purposes of preparing demonstrative or other exhibits for deposition, trial, or other 23 court proceedings in the actions; (iv) non-technical jury or trial consulting services; and (v) 24 discovery vendors retained to assist with the organization and management of electronic 25 discovery; 26

27 provisions of section V herein; and 28

[PROPOSED] STIPULATED PROTECTIVE ORDER -4- CASE NO. 11-MD-02264 JSW

CASE NO. 11-CV-03113 JSW

a. Outside litigation counsel of record and supporting personnel

b. Up to two in-house counsel of any party with responsibility for

e. Any fact witness during the course of a deposition subject to the

f. The Court, its personnel, and any other person (such as a master or mediator) who serves in a judicial or quasi-judicial function, profession stenographic reporters 2 engaged to transcribe testimony (under seal or with other suitable precautions determined by the 3

Court), and jurors.

C. Information Designated CONFIDENTIAL-OUTSIDE COUNSEL ONLY

1. For purposes of this Order, Protected Information designated

CONFIDENTIAL-OUTSIDE COUNSEL ONLY shall mean Protected Information that 7 contains extremely sensitive information, the disclosure of which to another party would create a 8 risk of competitive injury that could not be avoided by less restrictive means. Protected 9

Information designated CONFIDENTIAL-OUTSIDE COUNSEL ONLY includes, but is not 10 limited to: (i) marketing, financial, sales, web traffic, research and development, or technical, 11 data or information; (ii) commercially sensitive competitive information, including, without 12 limitation, information obtained from a nonparty pursuant to a current Nondisclosure Agreement ("NDA"); (iii) information or data relating to future products not yet commercially released 14 and/or strategic business plans; (iv) trade secret, or other confidential research and development 15 information; (v) commercial agreements, settlement agreements or settlement communications, 16 the disclosure of which is likely to cause harm to the competitive position of the producing party; 17 and, (vi) user information.

CONFIDENTIAL" shall be treated as if designated CONFIDENTIAL-OUTSIDE COUNSEL CONFIDENTIAL-OUTSIDE COUNSEL ONLY, each party agrees to use such designation 23 only in good faith.

2. Protected Information alternatively designated "CONFIDENTIAL OUTSIDE ATTORNEYS' EYES ONLY," "HIGHLY CONFIDENTIAL" or "RESTRICTED 20

ONLY. In determining whether Protected Information should be designated as 3. Protected Information designated CONFIDENTIAL-OUTSIDE

COUNSEL ONLY and the contents therein shall be available only to the persons or entities listed 26 in paragraphs I.B.2.a, c, d, e and f, subject to any terms set forth or incorporated therein, and not 27 to any person or entity listed in paragraph I.B.2.b. 28 reserved for Discovery Material that contains or substantively relates to a party's "Source Code," 5 which shall mean documents containing or substantively relating to confidential, proprietary 6 and/or trade secret source code or technical design documentation. The following conditions 7 shall govern the production, review and use of source code or design documentation information. 8

D. Information Designated RESTRICTED CONFIDENTIAL-

SOURCE CODE

1. The RESTRICTED CONFIDENTIAL-SOURCE CODE designation is

2. All such Source Code, and any other Protected Information designated as

"RESTRICTED CONFIDENTIAL-SOURCE CODE," shall be subject to the following 10 provisions: 11

12 any such information, shall ONLY be made available for inspection, not produced except as 13 provided for below, and shall be made available in electronic format at one of the following 14 locations chosen at the sole discretion of the producing party: (1) the offices of the producing 15 party's primary outside counsel of record in this action; (2) a single, third-party site located 16 within any judicial district in which the Source Code is stored in the ordinary course of business 17

(e.g., an escrow company); or (3) a location mutually agreed upon by the receiving and 18 producing parties. Any location under (1), (2) or (3) above shall be in the continental United 19

States. Source Code will be loaded on a single, non-networked computer that is password 20 protected and maintained in a secure, locked area. Use or possession of any input/output device 21

(e.g., USB memory stick, cameras or any camera-enabled device, CDs, floppy disk, portable hard 22 drive, laptop, etc.) is prohibited while accessing the computer containing the Source Code. All 23 persons entering the locked room containing the Source Code must agree to submit to reasonable 24 security measures to insure they are not carrying any prohibited items before they will be given 25 access to the locked room. The computer containing Source Code will be made available for 26 inspection during regular business hours, upon reasonable notice to the producing party, which 27 shall not be less than 3 business days in advance of the requested inspection.

a. Source Code, to the extent any producing party agrees to provide

b. The receiving party's outside counsel and/or experts may request that commercially available licensed software tools for viewing and searching Source Code be 2 installed on the secured computer. The receiving party must provide the producing party with 3 the CD or DVD containing such software tool(s) at least four business days in advance of the 4 inspection. 5

6 entitled to take notes relating to the Source Code but may not copy any portion of the Source 7

c. The receiving party's outside counsel and/or expert shall be

Code into the notes. No copies of all or any portion of the Source Code may leave the room in 8 which the Source Code is inspected except as otherwise provided herein. Further, no other 9 written or electronic record of the Source Code is permitted except as otherwise provided herein. 10

d. No person shall copy, e-mail, transmit, upload, download, print,

11 photograph or otherwise duplicate any portion of the designated Source Code, except as the 12 receiving party may request a reasonable number of pages of Source Code to be printed by the 13 producing party, but only if and to the extent necessary for use in this action. In no event may 14 the receiving party print more than 25 consecutive pages, or an aggregate total of more than five 15 hundred (500) pages, of Source Code during the duration of the case without prior written 16 approval by the producing party. Such consent may not be unreasonably withheld. Within 5 17 business days or such additional time as necessary due to volume requested, the producing party 18 will provide the requested material on watermarked or colored paper bearing Bates numbers and 19 the legend "RESTRICTED CONFIDENTIAL-SOURCE CODE" unless objected to as 20 discussed below. The printed pages shall constitute part of the Source Code produced by the 21 producing party in this action. At the inspecting parties request, up to two additional sets (or 22 subsets) of printed Source Code may be requested and provided by the producing party in a 23 timely fashion. 24

e. If the producing party objects that the printed portions are not

25 reasonably necessary to any case preparation activity, the producing party shall make such 26 objection known to the receiving party within five business days. If after meeting and conferring 27 the producing party and the receiving party cannot resolve the objection (where such meet-and-28 confer need not take place in person), the producing party shall be entitled, but not required, to seek a Court resolution of whether the printed Source Code in question is reasonably necessary to 2 any case preparation activity. Contested Source Code print outs need not be produced to the 3 requesting party until the matter is resolved by the Court. 4

5 things reflecting Source Code that have been designated by the producing party as 6

"RESTRICTED CONFIDENTIAL-SOURCE CODE" may not be copied, digitally imaged or 7 otherwise duplicated, except in limited excerpts necessary to attach as exhibits to depositions, 8 expert reports, or court filings as discussed below. 9

10

f. Any printed pages of Source Code, and any other documents or

g. Any paper copies designated "RESTRICTED CONFIDENTIAL-

SOURCE CODE" shall be stored or viewed only at (i) the offices of outside counsel for the 11 receiving party, (ii) the offices of outside experts or consultants who have been approved to 12 access Source Code; (iii) the site where any deposition is taken (iv) the Court; or (v) any 13 intermediate location necessary to transport the information to a hearing, trial or deposition. Any 14 such paper copies shall be maintained at all times in secure location under the direct control of 15 counsel responsible for maintaining the security and confidentiality of the designated materials. 16

17 persons who enter the locked room to view the Source Code and when they enter and depart. 18

Source Code viewing room, and to a copy of the log. 20

21 following each inspection, the receiving party's outside counsel and/or experts shall remove all 22 notes, documents, and all other materials from the room that may contain work product and/or 23 attorney-client privileged information. The producing party shall not be ...


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