FastVDO LLC v. AT&T Mobility LLC

          ORDER: (1) GRANTING JOINT MOTION FOR PROTECTIVE ORDER AS TO QUALCOMM [DOC. NO. 145.] (2) STIPULATED SUPPLEMENTAL PROTECTIVE ORDER BETWEEN NON PARTY QUALCOMM INCORPORATED, PLAINTIFF, AND ALL DEFENDANTS

          MARILYN L. HUFF, DISTRICT JUDGE

         On June 24, 2016, the parties filed a joint motion for a supplemental protective order as to Qualcomm Inc. (Doc. No. 145.) Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court, for good cause shown grants the joint motion and enters the following protective order:

         WHEREAS, Plaintiff FastVDO LLC (“Plaintiff”); Defendants Apple Inc., AT&T Mobility LLC, AT&T Services, Inc., LG Electronics, Inc., LG Electronics U.S.A., Inc., Microsoft Mobile Inc., Huawei Device Co., Ltd., Huawei Technologies USA, Inc., Huawei Technologies, Co., Ltd., Futurewei Technologies, Inc., Huawei Device USA, Inc., ZTE (USA) Inc., Samsung Electronics Co., Ltd., and Samsung Electronics America, Inc. (collectively “Defendants”) (together, hereinafter referred to as “the Parties”), and Qualcomm Incorporated (“QUALCOMM”), a non-party to the actions, may produce confidential source code, schematics, and other documents in this action that include or incorporate CONFIDENTIAL INFORMATION belonging to QUALCOMM (“QUALCOMM Confidential Information”);

         WHEREAS the Parties and Non-Party QUALCOMM have agreed to provisions to protect against misuse or disclosure of such QUALCOMM Confidential Information;

         WHEREFORE, IT IS HEREBY ORDERED that source code, schematics, or documents that incorporate QUALCOMM Confidential Information produced in connection with the above-captioned matters that are designated as “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY” and “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY - CONFIDENTIAL SOURCE CODE” shall be subject to the following restrictions:

         1. Definitions

         1. “QUALCOMM MATERIAL”: Confidential information (regardless of how generated, stored, or maintained) or tangible things that include or incorporate Non-Party QUALCOMM Confidential Information, that Non-Party QUALCOMM (i) would not normally reveal to third parties except in confidence, or has undertaken with others to maintain in confidence, (ii) believes in good faith is significantly sensitive, or (iii) protected by a right to privacy under federal or state law, or any other applicable privilege or right related to confidentiality or privacy. QUALCOMM MATERIAL includes all information, documents, source code, schematics, testimony, and things produced, served, or otherwise provided in the actions by any Party or by Non-Party QUALCOMM, that include or incorporate QUALCOMM Confidential Information.

         2. “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY” material: information, documents, and things that include or incorporate QUALCOMM MATERIAL.

         3. “Source Code”: includes human-readable programming language text that defines software, firmware, (collectively, “software Source Code”) and integrated circuits (“hardware Source Code”). Text files containing Source Code shall hereinafter be referred to as “Source Code files.” Software Source Code files shall include, but are not limited to, files containing Source Code in “C, ” “C, ” BREW, Java ME, J2ME, assembler, digital signal processor (DSP) programming languages, and other human readable text programming languages. Software Source Code files further include “.include files, ” “make” files, “link” files, and other human-readable text files used in the generation and/or building of software directly executed on a microprocessor, micro-controller, or DSP. Hardware Source Code files include, but are not limited to, files containing Source Code in VDHL, Verilog, and other Hardware Description Language (“HDL”) formats, including but not limited to, Register Transfer Level (“RTL”) descriptions.

         4. “Chip-Level Schematics”: means symbolic representations of analog electric or electronic circuits from which the physical structure of a chip is directly derived.

         5. “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY - CONFIDENTIAL SOURCE CODE” Material: QUALCOMM MATERIAL that includes Source Code and Chip-Level Schematics that constitute proprietary technical or commercially sensitive competitive information that Non-Party QUALCOMM maintains as highly confidential in its business, the disclosure of which is likely to cause harm to the competitive position of Non-Party QUALCOMM. This includes Source Code and Chip- Level Schematics in the Producing Party’s possession, custody, or control, and made available for inspection by the Producing Party.

         6. “Designated QUALCOMM Material”: material that is designated “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY” or “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY - CONFIDENTIAL SOURCE CODE” under this Supplemental Protective Order.

         7. “Designated Source Code Material”: material that is designated “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY - CONFIDENTIAL SOURCE CODE” under this Supplemental Protective Order.

         8. “Personnel Retained by a Receiving Party in the Actions” means any consultants, experts, or outside counsel (including their support staff) that have been and continue to be retained by a Receiving Party in the actions. For the sake of clarity, any person who was retained by a Receiving Party in the actions will no longer fall under this definition if that person ceases to be retained by a Receiving Party in the actions.

         9. “Party” means any Party to the above-captioned actions, including all of its officers, directors, employees, consultants, retained experts, and all support staff thereof.

         10. “Producing Party” means a party or non-party that discloses or produces Designated QUALCOMM Material in the above-captioned actions.

         11. “Receiving Party” a Party that receives Designated QUALCOMM Material from a Producing Party in the above-captioned actions.

         12. “Authorized Reviewer(s)” shall mean persons authorized to review “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY” and “QUALCOMM - OUTSIDE ATTORNEYS’ EYES ONLY - CONFIDENTIAL SOURCE CODE” material in accordance with this Supplemental Protective Order and the Protective Order.

         13. “Counsel of Record”: (i) Outside Counsel who appears on the pleadings, or has entered an appearance in the actions, as counsel for a Party, and (ii) partners, principals, counsel, associates, employees, and contract attorneys of such Outside Counsel to whom it is reasonably necessary to disclose the information for the actions, including supporting personnel employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks and shorthand reporters.

         14. “Outside Consultant”: a person with specialized knowledge or experience in a matter pertinent to the actions who has been retained by Counsel of Record to serve as an expert witness or a litigation consultant in the actions (including any necessary support personnel of such person to whom disclosure is reasonably necessary for the actions), and who is not a current employee of a Party, of a competitor of a Party, or of Non-Party QUALCOMM, and who, at the time of retention, is not anticipated to become an employee of, or a non-litigation consultant of: 1) a Party, 2) a competitor of a Party, 3) a competitor of Non-Party QUALCOMM, or of 4) Non-Party QUALCOMM.

         15. “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 or directed by Counsel of Record in the actions, and who are not current employees of a Party, a competitor of a Party, or of Non-Party QUALCOMM, and who, at the time of retention, are not anticipated to become employees of: 1) a Party, 2) a competitor of a Party, 3) a competitor of Non-Party QUALCOMM, or 4) Non-Party QUALCOMM. This definition includes ESI vendors, and professional jury or trial consultants retained in connection with the actions to assist a Party, Counsel of Record, or any Outside Consultant in their work. Professional vendors do not include consultants who fall within the definition of Outside Consultant.

         2. Relationship to Protective Order

         16. The Parties and Non-Party QUALCOMM recognize that a future Protective Order will be entered in this action in the United States District Court, S.D. California.

         17. This Supplemental Protective Order governs Designated QUALCOMM Material that does not include Party confidential business information, regardless of whether Non-Party QUALCOMM or a Party designates or produces such Designated QUALCOMM Material.

         18. Designated QUALCOMM Material that also includes Party confidential business information shall be subject to the restrictions of both this Supplemental Protective Order and the future Protective Order. To the extent there is any confusion or conflict between the protective orders, then this Supplemental Protective Order governs.

         3. Scope

         19. The protections conferred by this Supplemental Protective Order cover not only Designated QUALCOMM 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 any applicable local rules or General Orders. Identification of any individual pursuant to this Supplemental 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 or any applicable rules or General Orders.

         20. This Supplemental Protective Order shall not prevent a disclosure to which Non-Party QUALCOMM consents in writing before that disclosure takes place.

         21. This Supplemental Protective Order shall apply to all Designated QUALCOMM Material that is produced or provided for inspection in the actions, including all Designated QUALCOMM Material that is in the possession, custody or control of QUALCOMM ...