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Brandywine Communications Technologies, LLC v. Toshiba Corporation

United States District Court, Ninth Circuit

July 9, 2013

BRANDYWINE COMMUNICATIONS TECHNOLOGIES, LLC Plaintiff,
v.
TOSHIBA CORPORATION and TOSHIBA AMERICA INFORMATION SYSTEMS, INC. Defendants.

PROTECTIVE ORDER EXCLUDING PROSECUTION BAR PROVISIONS IN PARAGRAPH 24

ANDREW J. WISTRICH, Magistrate Judge.

To expedite the flow of discovery material, to facilitate the prompt resolution of disputes over confidentiality of discovery materials, to adequately protect information the parties are entitled to keep confidential, to ensure that only materials the parties are entitled to keep confidential are subject to such treatment, and to ensure that the parties are permitted reasonably necessary uses of such materials in preparation for and in the conduct of trial, pursuant to Fed.R.Civ.P. 26(c), it is hereby ORDERED THAT:

A. Definitions

1. "Party": any party to this action, including all of its officers, directors, employees, consultants, retained experts, and outside counsel (and their support staff).

2. "Material": all information, documents, testimony, and things produced, served or otherwise provided in this action by the Parties or by non-parties.

3. "Designating Party": a Party or non-party that designates information, documents, or things for production in disclosures, or in responses to discovery as "CONFIDENTIAL, " "ATTORNEYS' EYES ONLY, " and/or "ATTORNEYS' EYES ONLY - SOURCE CODE."

4. "CONFIDENTIAL" Material: information, documents, and things the Designating Party believes in good faith is not generally known to others, and that the Designating Party (i) would not normally reveal to third parties except in confidence, or has undertaken with others to maintain in confidence, or (ii) believes in good faith is protected by a right to privacy under federal or state law, or any other applicable privilege or right related to confidentiality or privacy.

5. "ATTORNEYS' EYES ONLY" Material: information, documents, and things the Designating Party believes in good faith is not generally known to others, and has significant competitive value such that unrestricted disclosure to others would create a substantial risk of serious injury, and that the Designating Party (i) would not normally reveal to third parties except in confidence, or has undertaken with others to maintain in confidence, or (ii) believes in good faith is significantly sensitive and protected by a right to privacy under federal or state law or any other applicable privilege or right related to confidentiality or privacy. Any technical document designated as "ATTORNEYS' EYES ONLY" is automatically subject to the Prosecution Bar provision set forth in Section G Below.

6. "ATTORNEYS' EYES ONLY - SOURCE CODE": RTL, HDL, microcode, or other sensitive code (collectively, "SOURCE CODE") that the Designating Party believes in good faith is not generally known to others, and has significant competitive value such that unrestricted disclosure to others would create a substantial risk of serious injury, and that the Designating Party (i) would not normally reveal to third parties except in confidence, or has undertaken with others to maintain in confidence, or (ii) believes in good faith is significantly sensitive and protected under federal or state law, or any other applicable privilege or right related to confidentiality or privacy. Any document designated as "ATTORNEYS' EYES ONLY - SOURCE CODE" is automatically subject to the Prosecution Bar provision set forth in Section G Below.

(a)

7. "Producing Party": a Party or non-party that produces Material in this action.

8. "Receiving Party": a Party that receives Material from a Producing Party.

9. "Designated Material": Material that is designated "CONFIDENTIAL, " "ATTORNEYS' EYES ONLY, " or "ATTORNEYS' EYES ONLY - SOURCE CODE" under this Order.

10. "Counsel of Record": (i) outside counsel who appears on the pleadings as counsel for a Party, (ii) partners, principals, counsel, associates, employees and contract attorneys of such outside counsel to whom it is reasonably necessary to disclose the information for this litigation, including supporting personnel employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks and shorthand reporters, and/or (iii) independent legal translators retained to translate in connection with this action, or independent shorthand reporters retained to record and transcribe testimony in connection with this action.

11. "Outside Consultant": a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by Counsel of Record to serve as an expert witness, or as a consultant in this action, and who is not a current employee of a Party or of a competitor of a Party and who, at the time of retention, is not anticipated to become an employee of a Party or of a competitor of a Party.

12. "Professional Vendors": persons or entities that provide litigation support services (e.g., photocopying; videotaping; translating; designing and preparing exhibits, graphics, or demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their employees and subcontractors who have been retained by Counsel of Record in this action, and who are not current employees of a Party or of a competitor of a Party and who, at the time of retention, are not anticipated to become employees of a Party or of a competitor of a Party. This definition includes ESI vendors, professional jury or trial consultants retained in connection with this litigation, and mock jurors retained by such consultants to assist them in their work. Professional vendors do not include consultants who fall within the definition of Outside Consultant.

B. Scope

13. The protections conferred by this Order cover not only Designated Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof. Nothing herein shall alter or change in any way the discovery provisions of the Federal Rules of Civil Procedure, or the Court's deadlines provided in the Court's scheduling orders. Identification of any individual pursuant to this Protective Order does not make that individual available for deposition, or any other form of discovery outside of the restrictions and procedures of the Federal Rules of Civil Procedure, and the Court's deadlines.

C. Access To Designated Material

14. CONFIDENTIAL Material: Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information, document or thing designated "CONFIDENTIAL" only to:

(a) Persons who appear on the face of Designated Material as an author, addressee or recipient thereof;
(b) Counsel of Record;
(c) Up to three (3) employees of a Receiving Party (including a parent company of a Receiving Party), and necessary secretarial staff, who are responsible for providing oversight of or assistance in the litigation, who have signed the "Acknowledgement and Agreement To Be Bound By Protective Order" attached hereto as Exhibit A, and provided an executed copy to all Parties prior to receiving Designated Material, however, as to Designated Material from third parties, absent a court order or agreement of the third party, Designated Material from third parties may not be disclosed to employees of a Receiving Party;
(d) If any Receiving Party believes that more than three (3) employees require access to confidential material, that party may negotiate the issue directly with the Producing Party;
(e) Outside Consultants of the Receiving Party to whom disclosure is reasonably necessary for this litigation, and who have signed the "Acknowledgement and Agreement To Be Bound By Protective Order" attached hereto as Exhibit A, and the "Certification Of Consultant" attached hereto as Exhibit B;
(f) Witnesses at deposition and/or trial, provided that such witnesses may not retain copies of Designated Material unless permitted by other provisions of this Order;
(g) The Court and its personnel;
(h) Any designated arbitrator or mediator who is assigned to hear this matter, or who has been selected by the Parties, and his or her staff, who have signed the "Acknowledgement and Agreement To Be Bound By Protective Order" attached hereto as Exhibit A, and the "Certification Of Consultant" attached hereto as Exhibit B;
(i) Court reporters and videographers employed in connection with this case; and
(j) Professional Vendors to whom disclosure is reasonably necessary for this litigation, including copy services, e-discovery services, graphics vendors, trial service vendors and translation services.

15. "ATTORNEYS' EYES ONLY" Material and "ATTORNEYS' EYES ONLY - SOURCE CODE" Material: Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any information, documents or things designated "ATTORNEYS' EYES ONLY" or "ATTORNEYS' EYES ONLY - SOURCE CODE" Material only to the following, in addition to those identified in Paragraphs 26-27 below regarding use of Designated Material at depositions:

(a) Persons who appear on the face of Designated Material as an author, addressee or recipient thereof;
(b) Counsel of Record;
(c) Outside Consultants of the Receiving Party to whom disclosure is reasonably necessary for this litigation, and who have signed the "Acknowledgement and Agreement To Be Bound By Protective Order" attached hereto as Exhibit A, and the ...

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