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Sandisk Corporation v. Round Rock Research LLC

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


May 14, 2012

SANDISK CORPORATION,
PLAINTIFF AND COUNTERCLAIM DEFENDANT,
v.
ROUND ROCK RESEARCH LLC,
DEFENDANT AND COUNTERCLAIM PLAINTIFF.

The opinion of the court was delivered by: Honorable Richard Seeborg United States District Judge

[PROPOSED] STIPULATED PROTECTIVE ORDER

confidential, proprietary, or private information for which special protection from public disclosure 28 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,

1. PURPOSES AND LIMITATIONS.

Disclosure and discovery activity in this action are likely to involve production of SanDisk Corporation and Round Rock Research LLC hereby stipulate to and petition the court to 2 enter the following Stipulated Protective Order. The parties acknowledge that this Order does not 3 confer blanket protections on all disclosures or responses to discovery and that the protection it 4 affords from public disclosure and use extends only to the limited information or items that are 5 entitled to confidential treatment under the applicable legal principles. The parties further 6 acknowledge, as set forth in Section 14.4 below, that this Stipulated Protective Order does not entitle 7 them to file confidential information under seal; Civil Local Rule 79-5 and General Order 62 set 8 forth the procedures that must be followed and the standards that will be applied when a party seeks 9 permission from the court to file material under seal. 10

information or items under this Order. 13

generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of 15

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).

2. DEFINITIONS.

2.1 Challenging Party: a Party or Non-Party that challenges the designation of

2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is Civil Procedure 26(c).

2.4 Designated House Counsel: House Counsel who seek access to "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" information in this matter. 20 21 produces in disclosures or in responses to discovery as "CONFIDENTIAL," "HIGHLY 22 CODE." 24

25 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 26 transcripts, and tangible things), that are produced or generated in disclosures or responses to 27 discovery in this matter. 28

2.5 Designating Party: a Party or Non-Party that designates information or items that it

CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE 23

2.6 Disclosure or Discovery Material: all items or information, regardless of the medium 2 the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 3 consultant in this action, and (2) at the time of retention, is not anticipated to become an employee of 4 a Party or of a Party's competitor. 5

2.8 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information or Items:

6 sensitive "Confidential Information or Items," disclosure of which to another Party or Non-Party 7 would create a substantial risk of serious harm that could not be avoided by less restrictive means.

2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to

2.9 "HIGHLY CONFIDENTIAL -- SOURCE CODE" Information or Items: sensitive

"Confidential Information or Items" representing computer code and associated comments and 10 revision histories, formulas, engineering specifications, or schematics that define or otherwise 11 describe in detail the algorithms or structure of software or hardware designs, disclosure of which to 12 another Party or Non-Party would create a substantial risk of serious harm that could not be avoided 13 by less restrictive means. 14

15

2.10 House Counsel: attorneys who are employees of a party to this action. House

Counsel does not include Outside Counsel of Record or any other outside counsel. 16

entity not named as a Party to this action. 18

19 of a party to this action but are retained to represent or advise a party to this action and have 20 appeared in this action on behalf of that party or are affiliated with a law firm which has appeared on 21 behalf of that party. 22

23 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 24

2.11 Non-Party: any natural person, partnership, corporation, association, or other legal

2.12 Outside Counsel of Record: attorneys who are not employees, partners or principals

2.13 Party: any party to this action, including all of its officers, directors, employees,

2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery

Material in this action. 26

2.15 Professional Vendors: persons or entities that provide litigation support services

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, 28 storing, or retrieving data in any form or medium) and their employees and subcontractors.

CONFIDENTIAL -- SOURCE CODE." 4

2.16 Protected Material: any Disclosure or Discovery Material that is designated as

"CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY 3

2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a

Producing Party. 6

8 defined above), but also (1) any information copied or extracted from Protected Material; (2) all 9 copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 10 conversations, or presentations by Parties or their Counsel that might reveal Protected Material. 11

However, the protections conferred by this Stipulation and Order do not cover the following 12 information: (a) any information that is in the public domain at the time of disclosure to a Receiving 13

Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of 14 publication not involving a violation of this Order, including becoming part of the public record 15 through trial or otherwise; and (b) any information known to the Receiving Party prior to the 16 disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the 17 information lawfully and under no obligation of confidentiality to the Designating Party. Any use of 18

Protected Material at trial shall be governed by a separate agreement or order. 19

3. SCOPE.

The protections conferred by this Stipulation and Order cover not only Protected Material (as

4. DURATION.

Even after final disposition of this litigation, the confidentiality obligations imposed by this

Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order 22 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and 23 defenses in this action, with or without prejudice; and (2) final judgment herein after the completion 24 and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the 25 time limits for filing any motions or applications for extension of time pursuant to applicable law. 26

5. DESIGNATING PROTECTED MATERIAL.

5.1 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 appropriate standards. To the extent it is practical to do so, the Designating Party must designate for 2 protection only those parts of material, documents, items, or oral or written communications that 3 qualify -- so that other portions of the material, documents, items, or communications for which 4 protection is not warranted are not swept unjustifiably within the ambit of this Order. 5

If it comes to a Designating Party's attention that information or items that it designated for

6 protection do not qualify for protection at all or do not qualify for the level of protection initially 7 asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the 8 mistaken designation. 9

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 11 Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 12 designated before the material is disclosed or produced. Designation in conformity with this Order 13 requires: 14

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order

(a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the

Producing Party affix the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE" to each page that contains protected material.

A Party or Non-Party that makes original documents or materials available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend ("CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE") to each page that contains Protected Material.

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, or other proceeding, all protected testimony and specify the level of protection being asserted. When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of the testimony may qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted. Only those portions of the testimony that are appropriately designated for protection within the 21 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the entire transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."

Parties shall give the other parties notice if they reasonably expect a deposition, hearing, or other proceeding to include Protected Material so that the other parties can ensure that only authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY."

Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of all pages (including line numbers as appropriate) that have been designated as Protected Material and the level of protection being asserted by the Designating Party. The Designating Party shall inform the court reporter of these

15 designate qualified information or items does not, standing alone, waive the Designating Party's 16 right to secure protection under this Order for such material. Upon timely correction of a 17 designation, the Receiving Party must make reasonable efforts to assure that the material is treated in 18 accordance with the provisions of this Order. 19

21 confidentiality at any time. A Party does not waive its right to challenge a confidentiality 22 designation by electing not to mount a challenge promptly after the original designation is disclosed. 23

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process

24 by providing written notice of each designation it is challenging and describing the basis for each 25 challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must 26 recite that the challenge to confidentiality is being made in accordance with this specific paragraph 27 of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must 28 begin the process by conferring directly (in voice to voice dialogue; other forms of communication requirements. Any transcript that is prepared before the expiration of a 21-day period

for designation shall be treated during that period as if it had been designated

"HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as actually designated.

(c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE." If only a portion or portions of the information or item warrant protection, the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level of protection being asserted.

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS.

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of are not sufficient) within 7 days of the date of service of notice. In conferring, the Challenging Party 2 must explain the basis for its belief that the confidentiality designation was not proper and must give 3 the Designating Party an opportunity to review the designated material, to reconsider the 4 circumstances, and, if no change in designation is offered, to explain the basis for the chosen 5 designation. A Challenging Party may proceed to the next stage of the challenge process only if it 6 has engaged in this meet and confer process first or establishes that the Designating Party is 7 unwilling to participate in the meet and confer process in a timely manner. 8

9 intervention, the Challenging Party may file and serve a motion to remove confidentiality under 10

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if 11 applicable) if the parties agree that the meet and confer process will not resolve their dispute. Each 12 such motion must be accompanied by a competent declaration affirming that the movant has 13 complied with the meet and confer requirements imposed in the preceding paragraph. The 14

Challenging Party may file a motion challenging a confidentiality designation if there is good cause 15 for doing so, including a challenge to the designation of a deposition transcript or any portions 16 thereof. The burden of persuasion in any such challenge proceeding shall be on the Designating 17

Party. All parties shall continue to afford the material in question the level of protection to which it 18 is entitled under the Producing Party's designation until the court rules on the challenge. 19

21 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 22 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 23 the categories of persons and under the conditions described in this Order. When the litigation has 24 been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL 25

DISPOSITION). Protected Material must be stored and maintained by a Receiving Party at a 26 location and in a secure manner that ensures that access is limited to the persons authorized under 27 this Order. 28

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court

7. ACCESS TO AND USE OF PROTECTED MATERIAL.

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 2 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 3 information or item designated "CONFIDENTIAL" only to: 4

7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered

(a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A;

(b) the officers, directors, and employees (including House Counsel) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);

(d) the court and its personnel;

(e) court reporters and their staff, professional jury or trial consultants, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and

(f) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information.

7.3 Disclosure of "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" and

"HIGHLY CONFIDENTIAL -- SOURCE CODE" Information or Items. Unless otherwise ordered 22 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 23 information or item designated "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or 24

(a) the Receiving Party's Outside Counsel of Record in this action, as well as employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" that is attached hereto as Exhibit A;

"HIGHLY CONFIDENTIAL -- SOURCE CODE" only to: 25

(b) Designated House Counsel of the Receiving Party (1) who has no involvement in patent prosecution activities, (2) to whom disclosure is reasonably necessary for this litigation, (3) who has signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), and (4) as to whom the procedures set forth in paragraph 7.4(a)(1), below, have been followed;

(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this litigation, (2) who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed;

(d) the court and its personnel;

(e) court reporters and their staff, professional jury or trial consultants, and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A); and

(f) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information.

7.4 Procedures for Approving or Objecting to Disclosure of "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE" Information 18 or Items to Designated House Counsel or Experts.

(a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a Party that seeks to disclose to Designated House Counsel any information or item that has been designated "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" pursuant to paragraph 7.3(b) first must make a written request to the Designating Party that (1) sets forth the full name of the Designated House Counsel and the city and state of his or her residence and (2) describes the Designated House Counsel's current and reasonably foreseeable future primary job duties and responsibilities in sufficient detail to determine if House Counsel is involved, or may become involved, in any patent prosecution activities.

(a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has been designated "HIGHLY CONFIDENTIAL

ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE" pursuant to paragraph 7.3(c) first must make a written request to the Designating Party that (1) identifies the general categories of "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE" information that the Receiving Party seeks permission to disclose to the Expert,

(2) sets forth the full name of the Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert's current resume, (4) identifies the Expert's current employer(s), (5) identifies each person or entity from whom the Expert has received compensation or funding for work in his or her areas of expertise or to whom the expert has provided professional services, including in connection with a litigation, at any time during the preceding five years, and (6) identifies (by name and number of the case, filing date, and location of court) any litigation in connection with which the Expert has offered expert testimony, including through a declaration, report, or testimony at a deposition or trial, during the preceding five years.

(b) A Party that makes a request and provides the information specified in the preceding respective paragraphs may disclose the subject Protected Material to the identified Designated House Counsel or Expert unless, within 10 days of delivering the request, the Party receives a written objection from the Designating Party. Any such objection must set forth in detail the grounds on which it is based.

(c) A Party that receives a timely written objection must meet and confer with the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within 7 days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to Designated House Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with Civil Local SOURCE CODE" information shall not be involved in the prosecution of patents or patent 17 applications relating to flash memory design, operation or fabrication, including without limitation 18 the patents asserted in this action and any patent or application claiming priority to or otherwise 19 related to the patents asserted in this action, before any foreign or domestic agency, including the 20

"prosecution" includes directly or indirectly drafting, amending, advising, or otherwise affecting the 22 scope or maintenance of patent claims. To avoid any doubt, "prosecution" as used in this paragraph 23 does not include representing a party challenging a patent before a domestic or foreign agency 24 (including, but not limited to, a reissue protest, ex parte reexamination or inter parties 25 reexamination). This Prosecution Bar shall begin when access to "HIGHLY CONFIDENTIAL -- 26 ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE" information is 27 first received by the affected individual and shall end two (2) years after final termination of this 28 action.

Rule 79-5 and General Order 62, if applicable) seeking permission from the court to do so. Any such motion must describe the circumstances with specificity, set forth in detail the reasons why disclosure to Designated House Counsel or the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any additional means that could be used to reduce that risk. In addition, any such motion must be accompanied by a competent declaration describing the parties' efforts to resolve the matter by agreement and setting forth the reasons advanced by the Designating Party for its refusal to approve the disclosure. In any such proceeding, the Party opposing disclosure to Designated House Counsel or the Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) outweighs the Receiving Party's need to disclose the Protected Material to its Designated House Counsel or Expert.

8. PROSECUTION BAR.

Absent written consent from the Producing Party, any individual who receives access to "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- 16 United States Patent and Trademark Office ("the Patent Office"). For purposes of this paragraph, 21

9. SOURCE CODE.

(a) To the extent production of source code becomes necessary in this case, a Producing Party may designate source code as "HIGHLY CONFIDENTIAL -- SOURCE CODE" if it comprises or includes confidential, proprietary or trade secret source code.

(b) Protected Material designated as "HIGHLY CONFIDENTIAL -- SOURCE CODE" shall be subject to all of the protections afforded to "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" information, including the Prosecution Bar set forth in Paragraph 8, and may be disclosed only to the individuals to whom "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" information may be disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House Counsel.

(c) Any source code produced in discovery shall be made available for inspection, in a format allowing it to be reasonably reviewed and searched, during normal business hours or at other mutually agreeable times, at an office of the Producing Party's counsel or another mutually agreed upon location. The source code shall be made available for inspection on a secured computer in a secured room without Internet access or network access to other computers, and the Receiving Party shall not copy, remove, or otherwise transfer any portion of the source code onto any recordable media or recordable device. The Producing Party may visually monitor the activities of the Receiving Party's representatives during any source code review, but only to ensure that there is no unauthorized recording, copying, or transmission of the source code.

(d) The Receiving Party may request paper copies of limited portions of source code that are reasonably necessary for the preparation of court filings, pleadings, expert reports, or other papers, or for deposition or trial, but shall not request paper copies for the purpose of reviewing the source code other than electronically as set forth in paragraph (c) in the first instance. The Producing Party shall provide all such source code in paper form, including bates numbers and the label "HIGHLY

16 disclosure of any information or items designated in this action as "CONFIDENTIAL," "HIGHLY 17 CODE," that Party must: 19

28 or court order shall not produce any information designated in this action as "CONFIDENTIAL," CONFIDENTIAL -- SOURCE CODE." The Producing Party may challenge the amount of source code requested in hard copy form pursuant to the dispute resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing Party is the "Challenging Party" and the Receiving Party is the "Designating Party" for purposes of dispute resolution.

(e) The Receiving Party shall maintain a record of any individual who has inspected any portion of the source code in electronic or paper form. The Receiving Party shall maintain all paper copies of any printed portions of the source code in a secured area. The Receiving Party shall only make additional paper copies if such additional copies are (1) necessary to prepare court filings, pleadings, or other papers (including a testifying expert's expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its case.

10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION.

If a Party is served with a subpoena or a court order issued in other litigation that compels CONFIDENTIAL -- ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE 18

(a) promptly notify in writing the Designating Party. Such notification shall include a copy of the subpoena or court order;

(b) promptly notify in writing the party who caused the subpoena or order to issue in the other litigation that some or all of the material covered by the subpoena or order is subject to this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and

(c) cooperate with respect to all reasonable procedures sought to be pursued by the Designating Party whose Protected Material may be affected.

If the Designating Party timely seeks a protective order, the Party served with the subpoena "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." or "HIGHLY CONFIDENTIAL -- 2 SOURCE CODE" before a determination by the court from which the subpoena or order issued, 3 unless the Party has obtained the Designating Party's permission. The Designating Party shall bear 4 the burden and expense of seeking protection in that court of its confidential material -- and nothing 5 in these provisions should be construed as authorizing or encouraging a Receiving Party in this 6 action to disobey a lawful directive from another court. 7

11. A NON-PARTY'S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS LITIGATION.

(a) The terms of this Order are applicable to information produced by a Non-Party in this action and designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL --ATTORNEYS' EYES ONLY," or "HIGHLY CONFIDENTIAL -- SOURCE CODE." Such information produced by Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional protections.

(b) In the event that a Party is required, by a valid discovery request, to produce a Non- Party's confidential information in its possession, and the Party is subject to an agreement with the Non-Party not to produce the Non-Party's confidential information, then the Party shall:

1. promptly notify in writing the Requesting Party and the Non-Party that some or all of the information requested is subject to a confidentiality agreement with a Non-Party;

2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in this litigation, the relevant discovery request(s), and a reasonably specific description of the information requested; and

3. make the information requested available for inspection by the Non-Party.

(c) If the Non-Party fails to object or seek a protective order from this court within 14 days of receiving the notice and accompanying information, the Receiving Party may produce the Non-Party's confidential information responsive to the discovery request.

If the Non-Party timely seeks a protective order, the Receiving Party shall not produce any information in its possession or control that is subject to the confidentiality agreement with the Non-Party before a determination by the court.

Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking protection in this court of its Protected Material.

12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL.

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to any person or in any circumstance not authorized under this Stipulated Protective Order, 10 the Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized 11 disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, 12

Order, and (d) request such person or persons to execute the "Acknowledgment and Agreement to 14 Be Bound" that is attached hereto as Exhibit A. 15

18 material is subject to a claim of privilege or other protection, the obligations of the Receiving Parties 19 are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to 20 modify whatever procedure may be established in an e-discovery order that provides for production 21 without prior privilege review. Pursuant to Federal Rule of Evidence 502(d) and (e), insofar as the 22 parties reach an agreement on the effect of disclosure of a communication or information covered by 23 the attorney-client privilege or work product protection, the parties may incorporate their agreement 24 in the stipulated protective order submitted to the court. 25

its modification by the court in the future. 28

(c) inform the person or persons to whom unauthorized disclosures were made of all the terms of this 13

13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL.

When a Producing Party gives notice to Receiving Parties that certain inadvertently produced

14. MISCELLANEOUS.

14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek 2 no Party waives any right it otherwise would have to object to disclosing or producing any 3 information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no 4 Party waives any right to object on any ground to use in evidence of any of the material covered by 5 this Protective Order. 6 7 laws and regulations relating to the export of technical data contained in such Protected Material, 8 including the release of such technical data to foreign persons or nationals in the United States or 9 elsewhere. The Producing Party shall be responsible for identifying any such controlled technical 10 data, and the Receiving Party shall take measures necessary to ensure compliance. 11

14.4 Filing Protected Material. Without written permission from the Designating Party or a

12 court order secured after appropriate notice to all interested persons, a Party may not file in the 13 public record in this action any Protected Material. A Party that seeks to file under seal any 14

Material may only be filed under seal pursuant to a court order authorizing the sealing of the specific 16

Protected Material at issue. Pursuant to Civil Local Rule 79-5 and General Order 62, a sealing order 17 will issue only upon a request establishing that the Protected Material at issue is privileged, 18 protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving Party's 19 request to file Protected Material under seal pursuant to Civil Local Rule 79-5(d) and General Order 20 62 is denied by the court, then the Receiving Party may file the Protected Material in the public 21 record pursuant to Civil Local Rule 79-5(e) unless otherwise instructed by the court. 22 As used in this subdivision, "all Protected Material" includes all copies, abstracts, compilations, 26 summaries, and any other format reproducing or capturing any of the Protected Material. Whether 27 the Protected Material is returned or destroyed, the Receiving Party must submit a written 28 certification to the Producing Party (and, if not the same person or entity, to the Designating Party)

14.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order,

14.3 Export Control. Disclosure of Protected Material shall be subject to all applicable

Protected Material must comply with Civil Local Rule 79-5 and General Order 62. Protected 15

15. FINAL DISPOSITION.

Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving Party must return all Protected Material to the Producing Party or destroy such material. 25

by the 60 day deadline that (1) identifies (by category, where appropriate) all the Protected Material 2 that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies, 3 abstracts, compilations, summaries or any other format reproducing or capturing any of the Protected 4

Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy of all 5 pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda, 6 correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant 7 and expert work product, even if such materials contain Protected Material. Any such archival 8 copies that contain or constitute Protected Material remain subject to this Protective Order as set 9 forth in Section 4 (DURATION).

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. Dated: May 11, 2012 VINSON & ELKINS LLP 13 By: /s/ Chuck P. Ebertin 14 Chuck P. Ebertin Attorneys for Plaintiff and Counterclaim Defendant SANDISK CORPORATION 15 16 17 18 Dated: May 11, 2012 DESMARAIS LLP 19 By: /s/ John C. Spaccarotella 20 John C. Spaccarotella (admitted pro hac vice) Attorneys for Defendant and Counterclaim Plaintiff ROUND ROCK RESEARCH LLC GENERAL ORDER 45, SECTION X.B.

I, Chuck P. Ebertin, hereby attest that John Spaccarotella has concurred in the filing of this document.

By: /s/ Chuck P. Ebertin Chuck P. Ebertin

[PROPOSED] ORDER

Pursuant to the above stipulation, IT IS SO ORDERED.

20120514

© 1992-2012 VersusLaw Inc.



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