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Pq Labs, Inc v. Yang Qi

February 6, 2013

PQ LABS, INC.,
PLAINTIFF,
v.
YANG QI, ZAAGTECH INC., JINPENG LI, SECRETS AND HAIPENG LI, DEFENDANTS.



The opinion of the court was delivered by: Hon. Claudia Wilken United States District Judge

STIPULATED PROTECTIVE ORDER FOR LITIGATION INVOLVING PATENTS, HIGHLY SENSITIVE CONFIDENTIAL INFORMATION, AND/OR TRADE

1. PURPOSES AND LIMITATIONS

Disclosure and discovery activity in this action are likely to involve production of 25 confidential, proprietary, or private information for which special protection from public disclosure 26 and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly, 27 the parties hereby stipulate to and petition the court to enter the following Stipulated Protective 28

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 and use extends 2 only to the limited information or items that are entitled to confidential treatment under the applicable 3 legal principles. The parties further acknowledge, as set forth in Section 14.4, below, that this 4

Stipulated Protective Order does not entitle them to file confidential information under seal; Civil 5

Local Rule 79-5 and General Order 62 set forth the procedures that must be followed and the 6 standards that will be applied when a party seeks permission from the court to file material under 7 seal.

2. DEFINITIONS 9

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

INTELLECTUAL PROPERTY LAW GROUP LLP

South First Street, 12th Floor

San Jose, California 95113

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

Civil Procedure 26(c). 14

2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as

15 their support staff). 16

2.4 Designated House Counsel: House Counsel who seek access to "HIGHLY

CONFIDENTIAL -- ATTORNEYS' EYES ONLY" information in this matter. 18

2.5 Designating Party: a Party or Non-Party that designates information or items that it 19 produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY 20

CONFIDENTIAL -- ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE 21

CODE." 22

2.6 Disclosure or Discovery Material: all items or information, regardless of the medium

23 or manner in which it is generated, stored, or maintained (including, among other things, testimony, 24 transcripts, and tangible things), that are produced or generated in disclosures or responses to 25 discovery in this matter. 26

2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 27 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a 28 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 2 competitor. 3

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

4 extremely sensitive "Confidential Information or Items," disclosure of which to another Party or 5

Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive 6 means. 7

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

8 sensitive "Confidential Information or Items" representing computer code and associated comments 9 and revision histories, formulas, engineering specifications, or schematics that define or otherwise 10 describe in detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means.

2.10 House Counsel: attorneys who are employees of a party to this action. House Counsel 14 does not include Outside Counsel of Record or any other outside counsel. 15 2.11 Non-Party: any natural person, partnership, corporation, association, or other legal 16 entity not named as a Party to this action. 17 2.12 Outside Counsel of Record: attorneys who are not employees of a party to this action 18 but are retained to represent or advise a party to this action and have appeared in this action on behalf 19 of that party or are affiliated with a law firm which has appeared on behalf of that party. 20 2.13 Party: any party to this action, including all of its officers, directors, employees, 21 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 22 2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material 23 in this action. 24 2.15 Professional Vendors: persons or entities that provide litigation support services (e.g., 25 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, 26 or retrieving data in any form or medium) and their employees and subcontractors. 27 28

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

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

"HIGHLY CONFIDENTIAL -- SOURCE CODE." 4

2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party. 6 3. SCOPE 7

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

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.

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

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

4. DURATION 20

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 time 25 limits for filing any motions or applications for extension of time pursuant to applicable law. 26

5. DESIGNATING PROTECTED MATERIAL 27

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 2 it is practical to do so, the Designating Party must designate for protection only those parts of 3 material, documents, items, or oral or written communications that qualify -- so that other portions of 4 the material, documents, items, or communications for which protection is not warranted are not 5 swept unjustifiably within the ambit of this Order. 6

Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown

7 to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily 8 encumber or retard the case development process or to impose unnecessary expenses and burdens on 9 other parties) expose the Designating Party to sanctions. 10

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. 14

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, 15 e.g., second paragraph of Section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or 16

Discovery Material that qualifies for protection under this Order must be clearly so designated before 17 the material is disclosed or produced. 18 Designation in conformity with this Order requires:

(a) for information in documentary form (e.g., paper or electronic documents, but 20 excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party 21 affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES 22

ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE" to each page that contains protected 23 material. If only a portion or portions of the material on a page qualifies for protection, the Producing 24

Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 25 margins) and must specify, for each portion, the level of protection being asserted. 26

A Party or Non-Party that makes original documents or materials available for inspection

27 need not designate them for protection until after the inspecting Party has indicated which material it 28 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 2

ONLY." After the inspecting Party has identified the documents it wants copied and produced, the 3

Producing Party must determine which documents, or portions thereof, qualify for protection under 4 this Order. Then, before producing the specified documents, the Producing Party must affix the 5 appropriate legend ("CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES 6

ONLY" or "HIGHLY CONFIDENTIAL -- SOURCE CODE") to each page that contains Protected 7

Material. If only a portion or portions of the material on a page qualifies for protection, the Producing 8

Party also must clearly identify the protected portion(s) (e.g., by making appropriate markings in the 9 margins) and must specify, for each portion, the level of protection being asserted. 10

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the 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 14 that substantial portions of the testimony may qualify for protection, the Designating Party may 15 invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right to have 16 up to 21 days to identify the specific portions of the testimony as to which protection is sought and to 17 specify the level of protection being asserted. Only those portions of the testimony that are 18 appropriately designated for protection within the 21 days shall be covered by the provisions of this 19

Stipulated Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 20

21 days afterwards if that period is properly invoked, that the entire transcript shall be treated as 21

"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- ATTORNEYS' EYES ONLY." 22

Parties shall give the other parties notice if they reasonably expect a deposition, hearing or 23 other proceeding to include Protected Material so that the other parties can ensure that only 24 authorized individuals who have signed the "Acknowledgment and Agreement to Be Bound" 25

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition shall 26 not in any way affect its designation as "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL -- 27

ATTORNEYS' EYES ONLY." 28

Transcripts containing Protected Material shall have an obvious legend on the title page that

2 the transcript contains Protected Material, and the title page shall be followed by a list of all pages 3

(including line numbers as appropriate) that have been designated as Protected Material and the level 4 of protection being asserted by the Designating Party. The Designating Party shall inform the court 5 reporter of these requirements. Any transcript that is prepared before the expiration of a 21-day 6 period for designation shall be treated during that period as if it had been designated "HIGHLY 7

CONFIDENTIAL -- ATTORNEYS' EYES ONLY" in its entirety unless otherwise agreed. After the 8 expiration of that period, the transcript shall be treated only as actually designated. 9

(c) for information produced in some form other than documentary and for any other

10 tangible items, that the Producing Party affix in a prominent place on the ...


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