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In Re: Google android Consumer v. Pandora Media


October 20, 2011


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: 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


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


CASE NO. 11-CV-03113 JSW

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


A. Protected Information Generally

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


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


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.


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-



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


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 responsible for any 24 items left in the room following each inspection session. 25

j. The receiving party will not copy, remove, or otherwise transfer any

26 portion of the Source Code from the Source Code Computer including, without limitation, 27 copying, removing, or transferring any portion of the Source Code onto any other computers or 28 peripheral equipment. The receiving party will not transmit any portion of the Source Code in

h. The receiving party shall maintain a daily log of the names of

The producing party shall be entitled to have a person observe all entrances and exits from the 19

i. Unless otherwise agreed in advance by the parties in writing, any way from the location of the Source Code inspection. 2

k. Only the following individuals shall have access to

"RESTRICTED CONFIDENTIAL-SOURCE CODE" materials, absent the express written 4 consent of the Producing Party or further court order: 5

6 including any attorneys, paralegals, technology specialists and clerical employees of their 7 respective law firms; 8

9 approved in accordance with Paragraphs III.A-III.F and specifically identified as eligible to 10 access Source Code; 11

12 jury, court personnel, and court reporters or videographers recording testimony or other 13 proceedings in this action. Court reporters and/or videographers shall not retain or be given 14 copies of any portions of the Source Code. If used during a deposition, the deposition record will 15 identify the exhibit by its production numbers; 16

(4) While testifying at deposition or trial in this action only: (i)

17 any current or former officer, director or employee of the producing party or original source of 18 the information; (ii) any person designated by the producing party to provide testimony pursuant 19 to Rule 30(b)(6) of the Federal Rules of Civil Procedure; and/or (iii) any person who authored, 20 previously received (other than in connection with this litigation), or was directly involved in 21 creating, modifying, or editing the Source Code, as evident from its face or reasonably certain in 22 view of other testimony or evidence. Persons authorized to view Source Code pursuant to this 23 sub-paragraph shall not retain or be given copies of the Source Code except while so testifying. 24

l. The Receiving Party's outside counsel shall maintain a log of all

25 copies of the Source Code (received from a Producing Party) that are delivered by the Receiving 26

Party to any qualified person under Paragraph g above. The log shall include the names of the 27 recipients and reviewers of copies and locations where the copies are stored. Upon request by 28 the producing party, the receiving party shall provide reasonable assurances and/or descriptions

(1) Outside counsel of record for the parties to this action,

(2) Up to five (5) outside experts or consultants per party, pre-

(3) The Court, its technical advisor (if one is appointed), the of the security measures employed by the receiving party and/or qualified person that receives a 2 copy of any portion of the Source Code; 3

4 create electronic images, or any other images, of the Source Code from the paper copy for use on 5 a computer (e.g., may not scan the source code to a PDF, or photograph the code). The 6

Receiving Party may create an electronic copy or image of limited excerpts of Source Code only 7 to the extent necessary in a pleading, exhibit, expert report, discovery document, deposition 8 transcript, other Court document, or any drafts of these documents ("SOURCE CODE 9

m. Except as provided in this paragraph, the Receiving Party may not DOCUMENTS"). The receiving party shall only include such excerpts as are reasonably 10 necessary for the purposes for which such part of the Source Code is used. Images or copies of 11

Source Code shall not be included in correspondence between the parties (references to 12 production numbers shall be used instead) and shall be omitted from pleadings and other papers 13 except to the extent permitted herein. The receiving party may create an electronic image of a 14 selected portion of the Source Code only when the electronic file containing such image has been 15 encrypted using commercially reasonable encryption software including password protection. 16

The communication and/or disclosure of electronic files containing any portion of Source Code 17 shall at all times be limited to individuals who are authorized to see Source Code under the 18 provisions of this Protective Order. The receiving party shall maintain a log of all electronic 19 images and paper copies of Source Code in its possession or in the possession of its retained 20 consultants, including the names of the recipients and reviewers of any electronic or paper copies 21 and the locations where the copies are stored. Additionally, all electronic copies must be labeled 22

n. To the extent portions of Source Code are quoted in a SOURCECODE DOCUMENT, either (1) the entire document will be stamped and treated as Source Code will be separately bound, and stamped and treated as RESTRICTED 2

o. All copies of any portion of the Source Code in whatever form shall be securely destroyed if they are no longer in use. Copies of Source Code that are marked 2 as deposition exhibits shall not be provided to the Court Reporter or attached to deposition 3 transcripts; rather, the deposition record will identify the exhibit by its production numbers. 4

5 the Source Code to individuals specified in Paragraph k above (e.g., Source Code may not be 6 disclosed to in-house counsel). 7

p. The receiving party's outside counsel may only disclose a copy of

E. Exercise of Restraint and Care in Designating Material for Protection

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 10 appropriate standards. The mass, indiscriminate, or routinized designation of materials in a 11 manner inconsistent with the provisions of this Order is prohibited. Designations that are shown to 12 be clearly unjustified, or that have been made for an improper purpose (e.g., to unnecessarily 13 encumber or retard the case development process, or to impose unnecessary expenses and burdens 14 on other parties), are prohibited and may subject the designating party to sanctions. 15

Notwithstanding the foregoing, if it comes to a Party's or a non-party's attention that materials it 16 has designated for protection pursuant to this Order do not qualify for protection at all, or do not 17 qualify for the level of protection initially asserted, that Party or non-party must promptly notify all 18 other parties that it is withdrawing the mistaken designation. 19

21 trial, that party shall provide a minimum of two (2) business days' notice to the producing party. 22

Subject to challenges under section IV, the parties will not oppose any reasonable request by the 23 producing party that courtroom be sealed, if allowed by the Court, during the presentation of any 24 testimony, evidence, or argument relating to or involving the use of any Protected Information. 25


In the event that a party intends to use any Protected Information during any hearing or


A. Purpose

Protected Information designated by the producing party and such copies of Protected

Information as are reasonably necessary for maintaining, defending, or evaluating this litigation may be furnished and disclosed to the receiving party's Advisers and their necessary support 2 personnel. 3

B. No Disclosure Without Protective Order Subscription

No disclosure of Protected Information designated as CONFIDENTIAL-OUTSIDE

COUNSEL ONLY or RESTRICTED CONFIDENTIAL-SOURCE CODE to an Adviser or 6 their necessary support personnel shall occur until that person has signed the form attached 7 hereto as Attachment A, and a signed copy has been provided to the producing party; and to the 8 extent there has been an objection under paragraph III.C, that objection is resolved according to 9 the procedures set forth below. 10

12 written notice of the intended disclosure by email to all counsel of record in the litigation, and the 13 producing party shall have ten (10) business days after such notice is given to object in writing to 14 the disclosure. The party desiring to disclose Protected Information to an Adviser must provide 15 the following information for each Adviser: name, address, curriculum vitae, current employer, 16 and employment history for the past five (5) years. No Protected Information shall be disclosed 17 to such expert(s) or consultant(s) until after the expiration of the foregoing notice period and 18 resolution of any objection. 19

21 particularity the ground(s) of the objection. The objecting party's consent to the disclosure of 22

Protected Information to an Adviser shall not be unreasonably withheld, and its objection must 23 be based on that party's good faith belief that disclosure of its Protected Information to the 24

Adviser will result in specific business or economic harm to that party. 25

C. Prior Notice of Intent to Disclose Protected Information to an Adviser

A party desiring to disclose Protected Information to an Adviser shall also give prior

D. Objections to Advisers

A party objecting to disclosure of Protected Information to an Adviser shall state with

E. Resolution of Objections to Advisers

If after consideration of the objection, the party desiring to disclose the Protected

Information to an Adviser refuses to withdraw the Adviser or withdraw the Bates ranges that are 28 the subject of the objection, that party shall provide notice to the objecting party. Thereafter, the objecting party shall move the Court, within ten (10) business days of receiving such notice, for a 2 ruling on its objection. A failure to file a motion within the ten (10) business day period, absent 3 an agreement of the parties to the contrary or for an extension of such ten (10) business day 4 period, shall operate as an approval of disclosure of the identified Bates ranges of Protected 5

Information to the Adviser. The parties agree to cooperate in good faith to shorten the time 6 frames set forth in this paragraph if necessary to abide by any discovery or briefing schedules.

cause" for preventing the disclosure of its Protected Information to the Adviser. For purposes of 10 this paragraph, "good cause" includes, but is not limited to, a particularized showing that: (i) the 11

Protected Information to the challenged Adviser is likely to harm the objecting party's business, 13 or (iii) the challenged Adviser currently has, previously had, or is reasonably likely in the future 14 to develop, a relationship with a competitor of the producing party that would create a reasonable 15 risk of disclosure, whether intentional or not, of the Protected Information or any part of it to that 16 competitor. 17

F. Burden for Objections to Advisers

1. The objecting party shall have the burden of showing to the Court "good

Protected Information is confidential commercial information, and either (ii) disclosure of the 12

2. A party who has not previously objected to disclosure of Protected

Information to a Adviser or whose objection has been resolved with respect to previously 19 produced Protected Information shall not be precluded from raising an objection to a Adviser at a 20 later time with respect to Protected Information that is produced after the time for objecting to 21 such a Adviser has expired. Any such objection shall be handled in accordance with the 22 provisions set forth above in section III.

26 this Order shall prevent a receiving party from contending that any Protected Information has 27 been improperly designated. A receiving party may at any time request that the producing party 28 cancel or modify the Protected Information designation with respect to any document or any


A. Use of Reasonable Care and No Waiver

The parties shall use reasonable care when designating Protected Information. Nothing in information contained therein. 2

of Protected Information at the time of production, and a failure to do so shall not preclude a 5 subsequent challenge thereto. In the event that a party objects to the designation of Protected 6

B. Objections to Confidentiality Designations

A party shall not be obligated to challenge the propriety of a designation of any category

Information, such a challenge shall be written, shall be served on counsel for the producing party, 7 and shall particularly identify the Protected Information that the receiving party contends should 8 be differently designated. The parties shall use their best efforts to resolve promptly and 9 informally such disputes and shall advise one another of both the factual and legal basis for their 10 respective positions. If an agreement cannot be reached, the receiving party shall request that the 11

Protected Information shall at all times be and remain on the designating party.

Court cancel or modify a designation. The burden of demonstrating the confidential nature of 12

C. Treatment of Protected Information During Challenge to a Designation

Unless otherwise resolved by agreement between the parties, until a determination by the

Court, the Protected Information in issue shall be treated as having been properly designated and 16 subject to the terms of this Order. 17

20 disclosed, shall be used only for purposes of this litigation, shall not be used for any business 21 purpose or in connection with any other legal proceeding, and shall not be disclosed to any 22 person who is not entitled to receive such Protected Information as herein provided. All 23 produced Protected Information shall be carefully maintained so as to preclude access by persons 24 who are not entitled to receive such Protected Information. 25

27 witness at depositions and trial and may testify concerning all Protected Information of which 28 such person has prior knowledge. Without in any way limiting the generality of the foregoing:


A. Restrictions on Use of Protected Information

All Protected Information shall be held in confidence by each person to whom it is

B. Examinations and Court Filings Concerning Protected Information

Except as may be otherwise ordered by the Court, any person may be examined as a examined and may testify concerning all Protected Information which has been produced by that 3 party and of which the witness has personal knowledge; 4

2. A former director, officer, agent and/or employee of a producing party

5 may be interviewed, examined and may testify concerning all Protected Information of which he 6 or she has personal knowledge, including any Protected Information that refers to matters of 7 which the witness has personal knowledge, which has been produced by that party and which 8 pertains to the period or periods of his or her employment; and 9

1. A present director, officer, and/or employee of a producing party may be

3. Non-parties may be examined or testify concerning any Protected

Information of a producing party, which appears on its face or from other documents or 11 testimony to have been received from or communicated to the non-party as a result of any contact 12 or relationship with the producing party or a representative of the producing party. Any person 13 other than the witness, his or her attorney(s), or any person qualified to receive Protected 14

Information under this Order shall be excluded from the portion of the examination concerning 15 such Protected Information, unless the producing party consents to persons other than qualified 16 recipients being present at the examination. If the witness is represented by an attorney who is 17 not qualified under this Order to receive such Protected Information, then prior to the 18 examination, the attorney must provide a signed statement, in the form of Attachment A hereto, 19 that he or she will comply with the terms of this Order and maintain the confidentiality of 20

Protected Information disclosed during the course of the examination. In the event that such 21 attorney declines to sign such a statement prior to the examination, the parties, by their attorneys, 22 shall jointly seek a protective order from the Court prohibiting the attorney from disclosing 23

4. Every fact witness shall be informed at the start of a deposition that he or

25 she may be shown documents designated as Protected Information in this litigation, and that such 26

Protected Information and the contents therein are being furnished to the witness solely for use in 27 this litigation. Every fact witness shall be shown a copy of this Order. No fact witness may 28 retain any documents designated as Protected Information.

2 pleadings, briefs, and other documents submitted to the Court that have been designated as 3

5. All transcripts of depositions, exhibits, answers to interrogatories,

Protected Information, or which contain information so designated, shall be filed under seal in a 4 manner prescribed by the Court for such filings unless the Court orders otherwise. To avoid 5 unnecessary sealing of Court records and motion practice relating to sealed filings, any party 6 preparing a filing with the Court that may contain Protected Information may identify to the 7 producing party or non-party the specific Protected Information at issue and request a waiver of 8 the confidentiality protections for that specific Protected Information. Upon receipt of such a 9 request to waive confidentiality protections, the producing party or non-party shall respond in 10 good faith within twenty-four (24) hours. 11

12 persons who may retrieve confidential exhibits and/or other confidential matters filed with the 13

Court upon termination of this litigation without further order of this Court, and are the persons 14 to whom such confidential exhibits or other confidential matters may be returned by the Clerk of 15 the Court, if they are not so retrieved. No material or copies thereof so filed shall be released, 16 except by order of the Court, to outside counsel of record, or as otherwise provided for 17 hereunder. 18

7. Protected Information shall not be copied or otherwise produced by a

19 receiving party, except for transmission to qualified recipients, without the written permission of 20 the producing party, or, in the alternative, by further order of the Court. Nothing herein shall, 21 however, restrict a qualified recipient from making working copies, abstracts, digests and 22 analyses of Protected Information designated CONFIDENTIAL or CONFIDENTIAL- 23

OUTSIDE COUNSEL ONLY for use in connection with this litigation, and such working copies, 24 abstracts, digests and analyses shall be deemed Protected Information under the terms of this 25

Protected Information designated CONFIDENTIAL or CONFIDENTIAL-OUTSIDE 27

COUNSEL ONLY into machine-readable form for incorporation into a data retrieval system 28 used in connection with this action, provided that access to that Protected Information, in 6. Outside attorneys of record for the parties are hereby authorized to be the

Order. Further, nothing herein shall restrict a qualified recipient from converting or translating whatever form stored or reproduced, shall be limited to qualified recipients. 2

3 by outside litigation counsel of record by making a statement orally to that effect on the record at 4 any time during the deposition. Within thirty (30) business days of receipt of the final certified 5 transcript of any deposition, the producing party may request that the original and all copies of 6 the deposition transcript, in whole or in part, be marked CONFIDENTIAL, CONFIDENTIAL- 7

Confidentiality designations shall be made by notifying all parties in writing of the specific pages 9 and lines of the transcript that should be treated as Protected Information. Deposition transcripts 10 shall be treated by default as CONFIDENTIAL-OUTSIDE COUNSEL ONLY until the 11 expiration of the time to make a confidentiality designation unless otherwise agreed to by the 12 parties. Any portions so designated shall thereafter be treated in accordance with the terms of 13 this Order. Objections to confidentiality designations under this paragraph shall be governed by 14 the procedure set forth in section IV above. 15

8. Testimony given at deposition may be designated as Protected Information


C. Unauthorized Disclosure of Protected Information

If a receiving party learns that, by inadvertence or otherwise, it has disclosed Protected

Information to any person or in any circumstance not authorized under this Order, the receiving 18 party must immediately: (i) notify in writing the producing party of the unauthorized 19 disclosure(s); (ii) use its best efforts to retrieve all copies of the Protected Information; (c) inform 20 the person or persons to whom unauthorized disclosures were made of all the terms of this Order; 21 and (d) request that such person or persons execute the confidentiality agreement attached hereto 22 as Attachment A. Compliance with this paragraph V.C upon the discovery of an unauthorized 23 disclosure of Protected Information is mandatory and shall not excuse a violation of this Order of 24 exempt a violating party from sanctions pursuant to paragraph V.D below. 25

27 this section V, the party violating this Order may be subject to sanctions as ordered by the Court.

D. Violations

If any party violates the limitations on the use of Protected Information as described in

In the event motion practice is required to enforce the terms of this Order, the prevailing party on such a motion shall be awarded costs, expenses, and fees, including attorney or other professional 2 fees, incurred in connection with the discovery of the violation and the preparation, filing, and 3 arguing of the motion or any other proceedings resulting from the violation. 4

7 court order may designate such Discovery Material as Protected Information pursuant to the 8 terms of this Protective Order. 9


11 entitle that non-party access to the Protected Information produced by any party or non-party in 12 this case. 13


15 party contends is protected from disclosure by the attorney-client privilege, the work product 16 immunity, common interest doctrine, or other privilege, doctrine, right, or immunity (collectively 17

"Privileged Information"). If Privileged Information is nevertheless inadvertently or 18 unintentionally produced, such production shall in no way prejudice or otherwise constitute a 19 waiver or estoppel as to any such privilege, doctrine, right or immunity. Disclosures among 20 defendants' attorneys of work product or other communications relating to issues of common 21 interest shall not effect or be deemed a waiver of any applicable privilege or protection from 22 disclosure. Any party that inadvertently produces Privileged Information may obtain the return 23 of those materials by promptly notifying the recipient(s) and expressly articulating the basis for 24 the asserted privilege or immunity. The recipient(s) shall gather and return all copies of the 25 inadvertently produced Privileged Information to the producing party, or certify to the producing 26 party that they have been destroyed and/or deleted. Notwithstanding this provision, outside 27 litigation counsel may maintain one (1) copy of inadvertently produced Privileged Information 28 only for the purpose of challenging the privileged nature of the information. Outside litigation


A. Purpose

A non-party producing Discovery Material voluntarily or pursuant to a subpoena or a

B. Non-Party Access

A non-party's use of this Protective Order to protect its Protected Information does not


Nothing in this Protective Order shall require production of Discovery Material that a counsel of record are also not required to delete inadvertently produced Privileged Information 2 that may reside on their respective firm's electronic back-up systems that are over-written in the 3 normal course of business, provided such inadvertently produced Privileged Information is not 4 used for any other purpose following counsel's receipt of the producing party's notice that the 5

Material is discoverable shall be resolved in the same manner as disputes regarding whether 7

Discovery Material that has been produced qualifies as Protected Information, subject to the 8 terms of this section VII. 9

12 writing signed by the attorney-in-charge for the party against whom such waiver will be 13 effective. 14

Privileged Information should not have been produced. Disputes regarding whether Discovery 6


A. Waiver

Any of the notice requirements herein may be waived, in whole or in part, but only in

B. Inadvertent or Unintentional Production

Inadvertent or unintentional production of documents or things containing Protected Information 16 that are not designated as one of the categories of Protected Information at the time of production 17 shall not be deemed a waiver in whole or in part of a claim for confidential treatment. With 18 respect to documents, the producing party shall immediately upon discovery notify the other 19 parties of the error in writing and provide replacement pages bearing the appropriate 20 confidentiality legend. In the event of any disclosure of Protected Information other than in a 21 manner authorized by this Protective Order, including any unintentional or inadvertent 22 disclosure, counsel for the party responsible for the disclosure shall immediately notify opposing 23 counsel of all of the pertinent facts, and make every effort to further prevent unauthorized 24 disclosure including, retrieving all copies of the Protected Information from the recipient(s) 25 thereof, and securing the agreement of the recipients not to further disseminate the Protected 26

Information in any form. Compliance with the foregoing shall not prevent the producing party 27 from seeking further relief from the Court. Compliance with this paragraph VIII.B shall not 28 excuse a violation of this Order or exempt a violating party from sanctions pursuant to paragraph

V.D above. 2

4 order, or the expiration of the deadline for any party to appeal any final judgment or order, or the 5 complete settlement of all claims asserted against all parties in this action, each party shall, at the 6 option of the producing party, either return or destroy all physical objects and documents which 7 embody Protected Information it has received, and shall destroy in whatever form stored or 8 reproduced, all physical objects and documents, including but not limited to, correspondence, 9 memoranda, notes and other work product materials, which contain or refer to any category of 10

Protected Information. All Protected Information not embodied in physical objects and 11 documents shall remain subject to this Order. In the event that a party is dismissed before the 12 entry of a final non-appealable judgment or order, this same procedure shall apply to any 13

Protected Information received from or produced to the dismissed party. Notwithstanding this 14 provision, outside litigation counsel of record are not required to delete Protected Information 15 that may reside on their respective firm's electronic back-up systems. Notwithstanding the 16 foregoing, outside counsel shall be entitled to maintain two (2) copies of all pleadings, motions 17 and trial briefs (including all supporting and opposing papers and exhibits thereto), written 18 discovery requests and responses (and exhibits thereto), deposition transcripts (and exhibits 19 thereto), trial transcripts, and exhibits offered or introduced into evidence at any hearing or trial, 20 and their attorney work product which refers or is related to any Protected Information 21 designated CONFIDENTIAL, CONFIDENTIAL-OUTSIDE COUNSEL ONLY or 22

RESTRICTED CONFIDENTIAL-SOURCE CODE for archival purposes only. If a party opts 23 to destroy Protected Information designated CONFIDENTIAL, CONFIDENTIAL-OUTSIDE 24

COUNSEL ONLY, or RESTRICTED CONFIDENTIAL-SOURCE CODE, the party must 25 provide a Certificate of Destruction to the producing party. 26

28 arbitral, administrative or legislative body, or are otherwise requested in discovery, the person to

C. Conclusion of Litigation

Within sixty (60) business days after the entry of a final non-appealable judgment or

D. Subpoenas

If at any time documents containing Protected Information are subpoenaed by any court, whom the subpoena or other request is directed shall immediately give written notice thereof to 2 every party or non-party who has produced such documents and to its counsel, and shall provide 3 each such party with an opportunity to object to the production of such documents. If a 4 producing party does not take steps to prevent disclosure of such documents within ten (10) 5 business days of the date written notice is given, the party to whom the referenced subpoena is 6 directed may produce such documents in response thereto, but shall take all reasonable measures 7 to have such documents treated in accordance with terms of this Protective Order. 8

10 communication dated on or after the filing of the lawsuit, which absent this provision, the party 11 would have been obligated to so identify on said privilege log. The parties shall exchange their 12 respective privilege document logs at a time to be agreed upon by the parties following the 13 production of documents. 14

16 other parties to this action, or by applying to the Court if agreement cannot be reached among 17 parties, to extend additional protection, or to reduce or rescind the restrictions of this Order, when 18 convenience or necessity requires. Furthermore, without application to the Court, any party that 19 is a beneficiary of the protections of this Order may enter a written agreement releasing any other 20 party hereto from one or more requirements of this Order even if the conduct subject to the 21 release would otherwise violate the terms herein. 22

24 not reflect agreement by the parties that the disclosure of such categories of Discovery Material 25 is required or appropriate in this action, or that such Discovery Material is relevant to or 26 admissible in this action. The parties reserve the right to argue that any particular category of 27

Discovery Material should not be produced, is not relevant, or is not admissible. 28

E. Post-Filing Communications

No party shall be required to identify on their respective privilege log any document or

F. Modification of Protections

This Order is entered without prejudice to the right of any party, either by agreement with

G. No Agreement Concerning Discoverability or Relevance

The identification or agreed upon treatment of certain types of Discovery Material does

H. No Limitation on Legal Representation

Nothing in this Protective Order shall preclude or impede outside litigation counsel of

2 record's ability to communicate with or advise their client in connection with this litigation based 3 on such counsel's review and evaluation of Protected Information, provided however, that such 4 communications or advice shall not disclose or reveal the substance or content of any Protected 5

Information other than as permitted under this Protective Order. 6

I. Agreement Upon Execution

Each of the parties agrees to be bound by the terms of this Protective Order as of the date

8 counsel for such party executes this Protective Order, even if prior to entry of this order by the 9

Court. 10

J. Section Headings

The section headings used in this Order shall be intended for convenience only and shall

12 not be deemed to supersede or modify any provisions. 13

K. Interpretation, Enforcement and Continuing Jurisdiction

The United States District Court for the Northern District of California is responsible for

15 the interpretation and enforcement of this Agreed Protective Order. After termination of this 16 litigation, the provisions of this Agreed Protective Order shall continue to be binding except with 17 respect to that Discovery Material that become a matter of public record. This Court retains and 18 shall have continuing jurisdiction over the parties and recipients of the Protected Information for 19 enforcement of the provision of this Agreed Protective Order following termination of this 20 litigation. All disputes concerning Protected Information produced under the protection of this 21

Agreed Protective Order shall be resolved by the United States District Court for the Northern 22

District of California. 23


SIGNED this ____ day of ______________, 20___.





2. I reside at__________________________________________________________________. 6

4. My present occupation or job description is_______________________________________. 8

1. My name is________________________________________________________________. 5

3. My present employer is_______________________________________________________. 7

5. I have been engaged as______________________________________________________ on 9 behalf of _______________________________________________________________ in the 10 preparation and conduct of litigation styled [CASE CAPTION]. 11

6. I have received a copy of the Agreed Protective Order dated ______, 20__, and I have 12 carefully read and understand its provisions. I agree to comply with and be bound by all the 13 provisions of said Order. I understand that I am to retain all copies of any documents 14 designated as CONFIDENTIAL, CONFIDENTIAL-OUTSIDE COUNSEL ONLY and/or 15

RESTRICTED CONFIDENTIAL-SOURCE CODE, or any similar designation, in a secure 16 manner and in accordance with the terms of said Order, and that all copies are to remain in 17 my personal custody until I have completed my assigned duties, whereupon the copies and 18 any writings prepared by me containing any information containing any Protected 19

COUNSEL ONLY and/or RESTRICTED CONFIDENTIAL-SOURCE CODE, or any 21 similar designation, are to be returned to counsel who provided me with such material. 22

7. I will not divulge Protected Information to persons other than those specifically authorized 23 by said Order, and I will not copy or use except solely for the purpose of this action, any 24

Protected Information obtained pursuant to said Order, except as provided in said Order. I 25 also agree to notify any stenographic or clerical personnel who are required to assist me of 26 the terms of said Order.

Information or documents designated CONFIDENTIAL,CONFIDENTIAL-OUTSIDE

8. In accordance with paragraph III.C of the Order (if applicable), I have attached to this 2

Confidentiality Agreement my curriculum vitae and any other required information sufficient 3 to identify my current employer and employment history for the past five (5) years. 4

9. I state under penalty of perjury under the laws of the United States of America that the 5 foregoing is true and correct. 6

By: ______________________________________________

Executed on ___________, 20____.


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