STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION AND/OR TRADE SECRETS;
[PROPOSED] ORDER AND RELATED COUNTERCLAIMS.
1. PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure 5 and use extends only to the limited information or items that are entitled to confidential treatment 6 under the applicable legal principles. The parties further acknowledge, as set forth in Section 7 14.4, below, that this Stipulated Protective Order does not entitle them to file confidential 8 information under seal; Civil Local Rule 79-5 and General Order 62 set forth the procedures that 9 must be followed and the standards that will be applied when a party seeks permission from the 10 court to file material under seal.
2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.
2.2 "CONFIDENTIAL" Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c).
2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).
2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as "CONFIDENTIAL", "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY", or "HIGHLY CONFIDENTIAL -- SOURCE CODE".
2.5 Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.
2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant in this action, (2) is not a past or current employee of a Party or of a Party's competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party's competitor.
2.7 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" Information or Items: extremely sensitive "Confidential Information or Items," disclosure of which to another 6 Party or Non-Party would create a substantial risk of serious harm that could not be avoided by 7 less restrictive means.
2.8 "HIGHLY CONFIDENTIAL -- SOURCE CODE" Information or Items: extremely 9 sensitive "Confidential Information or Items" representing computer code and associated 10 comments and revision histories, formulas, engineering specifications, or schematics that define or 11 otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure 12 of which to another Party or Non-Party would create a substantial risk of serious harm that could 13 not be avoided by less restrictive means.
2.9 House Counsel: attorneys who are employees of a party to this action. House 15 Counsel does not include Outside Counsel of Record or any other outside counsel.
2.10 Non-Party: any natural person, partnership, corporation, association, or other legal 17 entity not named as a Party to this action.
2.11 Outside Counsel of Record: attorneys who are not employees of a party to this 19 action but are retained to represent or advise a party to this action and have appeared in this action 20 on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
2.12 Party: any party to this action, including all of its officers, directors, employees, 22 consultants, retained experts, and Outside Counsel of Record (and their support staffs).
2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 24 Material in this action.
2.14 Professional Vendors: persons or entities that provide litigation support services 26 (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.
2.15 Protected Material: any Disclosure or Discovery Material that is designated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or as "HIGHLY CONFIDENTIAL -- SOURCE CODE."
2.16 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.
The protections conferred by this Stipulation and Order cover not only
(as defined above), but also (1) any information copied or extracted
from Protected Material; (2)
all copies, excerpts, summaries, or compilations of Protected
Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might
reveal Protected Material.
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 13 Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a 14 result of publication not involving a violation of this Order, including becoming part of the public 15 record through trial or otherwise; and (b) any information known to the Receiving Party prior to 16 the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained 17 the information lawfully and under no obligation of confidentiality to the Designating Party. Any 18 use of Protected Material at trial shall be governed by a separate agreement or order.
Even after final disposition of this litigation, the confidentiality obligations imposed by this 21 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 23 and defenses in this action, with or without prejudice; and (2) final judgment herein after the 24 completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, 25 including the time limits for filing any motions or applications for extension of time pursuant to 26 applicable law.
5. DESIGNATING PROTECTED MATERIAL
5.1 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 appropriate standards. To the extent it is practical to do so, the Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify -- so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order. Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or retard the case development process or to impose unnecessary expenses and burdens on other parties) expose the Designating Party to sanctions. If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation.
5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced. Designation in conformity with this Order requires:
(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. If only a portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each portion, the level of protection being asserted.
A Party or Non-Party that makes original documents or materials available for inspection 2 need not designate them for protection until after the inspecting Party has indicated which material 3 it would like copied and produced. During the inspection and before the designation, all of the 4 material made available for inspection shall be deemed "HIGHLY CONFIDENTIAL -- 5 ATTORNEYS' EYES ONLY." After the inspecting Party has identified the documents it wants 6 copied and produced, the Producing Party must determine which documents, or portions thereof, 7 qualify for protection under this Order. Then, before producing the specified documents, the 8 Producing Party must affix the appropriate legend ("CONFIDENTIAL", "HIGHLY 9 CONFIDENTIAL -- ATTORNEYS' EYES ONLY", or "HIGHLY CONFIDENTIAL -- SOURCE 10 CODE]) to each page that contains Protected Material. If only a portion or portions of the material 11 on a page qualifies for protection, the Producing Party also must clearly identify the protected 12 portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each 13 portion, the level of protection being asserted.
(b) for testimony given in deposition or in other pretrial or trial proceedings, that the 15 Designating Party identify on the record, before the close of the deposition, hearing, or other 16 proceeding, all protected testimony and specify the level of protection being asserted. When it is 17 impractical to identify separately each portion of testimony that is entitled to protection and it 18 appears that substantial portions of the testimony may qualify for protection, the Designating Party 19 may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right 20 to have up to 21 days to identify the specific portions of the testimony as to which protection is 21 sought and to specify the level of protection being asserted. Only those portions of the testimony 22 that are appropriately designated for protection within the 21 days shall be covered by the 23 provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at 24 the deposition or up to 21 days afterwards if that period is properly invoked, that the entire 25 transcript shall be treated as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- 26 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" 2 (Exhibit A) are present at those proceedings. The use of a document as an Exhibit at a deposition 3 shall not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL 4 -- ATTORNEYS' EYES ONLY."
Transcripts containing Protected Material shall have an obvious legend on the title page 6 that the transcript contains Protected Material, and the title page shall be followed by a list of all 7 pages (including line numbers as appropriate) that have been designated as Protected Material and 8 the level of protection being asserted by the Designating Party. The Designating Party shall inform 9 the court reporter of these requirements. Any transcript that is prepared before the expiration of a 10 21-day period for designation shall be treated during that period as if it had been designated 11 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" in its entirety unless otherwise 12 agreed. After the expiration of that period, the transcript shall be treated only as actually 13 designated.
(b) for information produced in some form other than documentary and for any 15 other tangible items, that the Producing Party affix in a prominent place on the exterior of the 16 container or containers in which the information or item is stored the legend "CONFIDENTIAL", 17 "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY", or "HIGHLY CONFIDENTIAL -- 18 SOURCE CODE". If only a portion or portions of the information or item warrant protection, the 19 Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the 20 level of protection being asserted.
5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 22 designate qualified information or items does not, standing alone, waive the Designating Party's 23 right to secure protection under this Order for such material. Upon timely correction of a 24 designation, the Receiving Party must make reasonable efforts to assure that the material is treated 25 in accordance with the provisions of this Order.
6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed.
6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper and must give the Designating Party an opportunity to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that the Designating Party is unwilling to participate in the meet and confer process in a timelymanner.
6.3 If the Parties cannot resolve a challenge without court intervention, the Challenging Party shall file and serve a motion to challenge confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5 and General Order 62, if applicable) within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute, whichever is earlier. The Challenging Party may file a 24 motion challenging a confidentiality designation at any time if there is good cause for doing so, 25 including a challenge to the designation of a deposition transcript or any portions thereof. Any 26 motion brought pursuant to this provision must be accompanied by a competent declaration affirming that the movant has complied with the meet and confer requirements imposed by the preceding paragraph.
The burden of persuasion in any such challenge proceeding shall be on the Designating 2 Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose 3 unnecessary expenses and burdens on other parties) may expose the Challenging Party to 4 sanctions. All parties shall continue to afford the material in question the level of protection to 5 which it is entitled under the Producing Party's designation until the court rules on the challenge.
7. ACCESS TO AND USE OF PROTECTED MATERIAL
7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 8 produced by another Party or by a Non-Party in connection with this case only for prosecuting, 9 defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to 10 the categories of persons and under the conditions described in this Order. When the litigation has 11 been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL 12 DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in 14 a secure manner*fn1 that ensures that access is limited to the persons authorized under this Order. 15 7.2 Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise ordered 16 by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any 17 information or item designated "CONFIDENTIAL" only to:
(a) the Receiving Party's Outside Counsel of Record in this action, as well as 19 employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 20 information for this litigation;
(b) the officers, directors, and employees (including House Counsel) of the 22 Receiving Party to whom disclosure is reasonably necessary for this litigation and who have 23 signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
(c) Experts (as defined in this Order) of the Receiving Party to whom 25 disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A) and their employees or staff to whom disclosure is reasonably necessary for this litigation and who have signed 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 Exhibit A;
(f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protective Order. (g) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information.
(h) Any other person with the prior written consent of the Producing Party. 7.3 Disclosure of "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" and "HIGHLY CONFIDENTIAL -- SOURCE CODE" Information or Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or item designated "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE" only to: (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; (b) Experts of the Receiving Party and their employees or staff (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), below, have been followed; (c) the court and its personnel;
(d) 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 Exhibit A; (e) the author or recipient of a document containing the information or a custodian or other person who otherwise possessed or knew the information;
(f) Any other person with the prior written consent of the Producing Party; and
(g) shall not be made available to any person who was or is an employee, agent, officer, director, or consultant of or to the Receiving Party, including Symantec Corporation,
Acronis, Inc., or Acronis International GmbH or any predecessors or successors (merged, acquired
or otherwise) parents, divisions, subsidiaries, associated organizations, joint ventures, and
7.4 Procedures for Approving or Objecting to Disclosure of "HIGHLY CONFIDENTIAL --
ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE" Information
(a) 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 for the past 5 years for whom the Expert has provided professional services
or from whom the Expert received compensation or funding, including in connection with
litigation, (6) identifies all of the Expert's patents and pending patent applications in which the
Expert is an inventor, assignee, or holds a financial interest; (7) identifies all source code relevant
to this litigation in which the Expert holds a financial interest, and (8) identifies any professional
services provided by the expert or any of his staff to Symantec, Acronis, Inc., or Acronis
International GmbH or any predecessors or successors (merged, acquired or otherwise), parents,
divisions, subsidiaries, associated organizations, joint ventures, and affiliates thereof
(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 Expert unless,
within 14 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 seven days of the written objection. If no agreement is reached, the Party
seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7
(and in compliance with Civil Local 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 the disclosure to 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 (i.e., the
extent and the content of the meet and confer discussions) 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 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 Expert.
Absent written consent from the Producing Party, any individual who receives access to
"HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or any "HIGHLY
CONFIDENTIAL -- SOURCE CODE" information shall not be involved in the prosecution of
patents or patent applications relating to backup and recovery software, including, without
limitation, the patents asserted in this action and any patent or application claiming priority to or
otherwise related to the patents asserted in this action, before any foreign or domestic agency,
including the United States Patent and Trademark Office ("the Patent Office"). For purposes of
this paragraph, "prosecution" includes directly or indirectly drafting, amending, advising, or
otherwise affecting the scope or maintenance of patent claims. To avoid any doubt, "prosecution"
as used in this paragraph does not include representing a party challenging a patent before a
domestic or foreign agency (including, but not limited to, a reissue protest, ex parte reexamination
or inter partes reexamination). This Prosecution Bar shall begin when access to "HIGHLY
CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE
CODE" information is first received by the affected individual and shall end two (2) years after
final termination of this action.
(a) A Producing Party may designate source code as "HIGHLY
CONFIDENTIAL - SOURCE CODE" if it comprises or includes confidential, proprietary or trade
(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.
(c) The Receiving Party shall provide five (5) business days' notice prior to
commencing an inspection. The Receiving Party shall restrict its inspection to a reasonable
number of days, from 9:00 a.m. to 5:00 p.m., or as otherwise agreed by the parties.
(d) A list of names of persons who will view the source code will be provided
to the Producing Party in conjunction with any written (including email) notice requesting
(e) Any source code produced in discovery shall be made available for
inspection in a format through which it could be reasonably reviewed and searched at an office of
the Producing Party's counsel or another mutually agreed upon location. The parties agree to meet
and confer in good faith on a location reasonably convenient for both sides, including taking into
consideration the location and convenience of each other's experts. 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 ("Source Code Computer"), as necessary and appropriate to
prevent and protect against any unauthorized copying, transmission, removal or other transfer of
any source code outside or away from the computer on which the source code is provided for
inspection. The parties agree to meet and confer if more than one Source Code Computer is
necessary to maximize the efficiency of the inspection. 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 shall be entitled to have a person observe all entrances
and exits from the source code viewing room. The Producing Party may also 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.
(f) The Producing Party shall install such tools or programs that are reasonably
necessary to review and search the code produced on the platform produced. The Receiving Party
may request that additional review tools and programs be added to the Source Code computer, and
the Providing Party may not unreasonably refuse to install such additional tools and programs. If
the Receiving Party wants to use other tools or programs, the Receiving Party must provide the
software and proof that it is licensed. The Receiving Party's outside counsel and/or expert shall be
entitled to take notes relating to the source code but may not copy substantial portions of the
source code into the notes. For purposes of this provision, fifteen or more lines of code is
"substantial. No copies of all or any portion of the source code may leave the room in which the
source code is inspected except as otherwise provided herein. Further, no other written or
electronic record of the source code is permitted except as otherwise provided herein.
The Producing Party shall allow the Receiving Party to create files on the Source Code
Computer as necessary for the Receiving Party's analysis, for example in a ...