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Power Analytics Corp. v. Operation Technology, Inc.

United States District Court, C.D. California, Southern Division

June 21, 2017

POWER ANALYTICS CORPORATION, Plaintiff,
v.
OPERATION TECHNOLOGY, INC., d/b/a ETAP, OSISOFT LLC, and SCHNEIDER ELECTRIC USA, INC., Defendants.

          PROTECTIVE ORDER AFTER HEARING

          FREDERICK F. MUMM, UNITED STATES MAGISTRATE JUDGE

         Having reviewed the submissions of the parties, the Court enters the following protective order to cover discovery in these proceedings:

         To expedite the flow of discovery material, to facilitate the prompt resolution of disputes regarding the over-designated 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

         INFORMATION SUBJECT TO THIS ORDER

         1. For purposes of this Protective Order (“Order”), “CONFIDENTIAL” information shall mean all non-public information, material, documents, or electronically stored information that is produced for or disclosed, either through the formal discovery process, with a pleading or motion, or informally in this litigation; that has been disclosed to a party that requests or receives Protected Material (a “Receiving Party”); and the party that possesses, owns, or otherwise controls the Protected Material requested by the Receiving Party (a “Producing Party”), including any party to this action and any non-party producing information or material voluntarily or pursuant to a subpoena or a court order, considers the information to constitute or to contain non-public business, financial, technical, operations, development, commercial, or other non-public information, whether embodied in physical objects, documents, or the factual knowledge of persons, the disclosure of which could reasonably result in detriment to the Producing Party or person; and which has been so designated by the Producing Party.

         2. For purposes of this Order, “HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY” information shall mean CONFIDENTIAL INFORMATION that constitutes or contains (a) commercially sensitive marketing, financial, sales, research and development, or technical data or information; (b) commercially sensitive competitive information, including, without limitation, information obtained from a non-party pursuant to a current Nondisclosure Agreement (“NDA”); (c) information or data relating to future products not yet commercially released and/or strategic plans; (d) commercial agreements, settlement agreements, or settlement communications, the disclosure of which is likely to cause harm to the competitive position of the Producing Party; (e) trade secrets, pricing information, sales or marketing forecasts or plans, business plans, sales or marketing strategy, product development information, engineering documents, testing documents, employee information, customer lists, and other non-public information of similar competitive and business sensitivity; and (f) information that is likely to cause economic harm or significant competitive disadvantage to the Producing Party if disclosed. In determining whether information should be designated as HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY, each party agrees to use such designation only when necessary pursuant to the terms herein.

         3. For purposes of this Order, “Protected Material” shall encompass any documents or information designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY, or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE pursuant to this Order.

         4. The following information is not Protected Material:

a. any information that at the time of disclosure to a Receiving Party is already lawfully in the public domain through no fault of the Receiving Party;
b. any information that after disclosure to a Receiving Party lawfully becomes part of the public domain as a result of publication not involving a violation of this Order;
c. any information that a Receiving Party can show was received by it, whether before or after the disclosure, from a source who obtained the information lawfully and was under no obligation of confidentiality to the Producing Party; or
d. any information that a Receiving Party can show was independently developed by it or by personnel who have not had access to the Producing Party's Protected Material.

         DESIGNATION OF INFORMATION AS CONFIDENTIAL, OR HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY

         5. The Producing Party's designation of information as CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY means that the Producing Party believes in good faith, upon reasonable inquiry, that the information qualifies as such.

         6. Any document, electronically stored information, or tangible thing containing or including any CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY information may be designated as such by the Producing Party by placing the appropriate designation on every page of the written material prior to production. For digital files being produced in native format, the Producing Party shall mark each viewable page or image with the appropriate designation when possible, and the Producing Party shall mark the medium, container, and/or communication in which the digital files are produced. For electronic documents produced in native form which cannot be marked with the appropriate designation, the Producing Party shall embed the confidentiality designation in the metadata, document title, or production load file, and shall mark the medium, container, and/or communication in which the digital files were contained. No electronic file, folder or disk will be designated in its entirety as CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY based on only some of the documents therein being entitled to such a designation.

         7. In the case of interrogatory answers and the information contained therein, designation shall be made by marking the first page and all subsequent pages containing the Protected Material with the appropriate confidentiality designation.

         8. The original and all copies of any deposition transcript and video record shall be marked CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY by the reporter, and shall thereafter be treated in accordance with the terms of this Order, if an attorney states on the record at the deposition that the information is CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY or by advising the opposing party and the stenographer and videographer in writing, within fourteen days after the deposition and before the transcript has been distributed by the stenographer and videographer, that the information is CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY. In the event the transcript and/or video record has been distributed within the 14-day period, the parties will mark the original and copies of the transcript and record in their possession as designated. Deposition transcripts, in their entirety, and any video record shall be treated by default as CONFIDENTIAL until the expiration of the time to make a confidentiality designation or the making of a confidentiality designation, whichever occurs first.

         9. All Protected Material not reduced to documentary, tangible or physical form or that cannot be designated as set forth in Paragraphs 6-8, shall be designated by informing the Receiving Party of the designation in writing. To the extent the Receiving Party subsequently generates copies of this information, whether electronic or hard-copy, it shall mark such copies with the appropriate confidentiality designations.

         10. When documents are produced in electronic form, the Producing Party shall include a confidentiality designation on the medium containing the documents. If a Receiving Party uses a hard-copy of a native format document, the Receiving Party shall mark each such page of such document with the applicable confidentiality designation.

         11. A Producing Party's failure to designate a document, thing, or testimony as CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY does not constitute forfeiture of a claim of confidentiality as to any document, thing, or testimony. The Producing Party may immediately, upon discovery, inform the Receiving Party of the CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY nature of the disclosed information, and the Receiving Party shall treat the disclosed information as CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY information upon receipt of written notice from the Producing Party. The Receiving Party shall not be held liable to the Producing Party for having previously disclosed such re-designated information, but shall be obligated to undertake reasonable efforts to retrieve any previously disclosed, re-designated information.

         12. A Producing Party who has designated information as CONFIDENTIAL or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY may withdraw the designation by written notification to all receiving parties who received a copy of the designated information.

         PERSONS AUTHORIZED TO REVIEW CONFIDENTIAL INFORMATION

         13. Protected Material designated CONFIDENTIAL and information contained therein shall be available only to the Producing Party and to the following persons, except upon receipt of the prior written consent of the Producing Party, or upon order by the Court:

a. Outside litigation counsel of record and supporting personnel employed by the law firm(s) of outside litigation counsel of record, such as attorneys, paralegals, legal translators, legal secretaries, legal clerks, shorthand reporters or others assisting litigation counsel of record, including any independent data processing, production and review vendors to whom it is reasonably necessary to disclose the information for this litigation;
b. Outside consultants, as defined in Paragraph16, subject to the provisions of Paragraphs 17-21, and who have signed and provided the form attached hereto as Attachment A.;
c. The Court, its personnel and stenographic reporters (under seal or with other suitable precautions determined by the Court);
d. Subject to Paragraph 21, independent legal translators retained to translate in connection with this action; independent stenographic reporters and videographers retained to record and transcribe testimony in connection with this action; graphics, translation, or design services retained by counsel for purposes of preparing demonstrative or other exhibits for deposition, trial, or other court proceedings in the actions; persons or entities that provide litigation support services such as photocopying, preparing exhibits or demonstrations, organizing, storing, retrieving data in any form or medium;
e. Any mediator who is assigned by the Court or by mutual agreement of the parties to hear this matter, and his or her staff, subject to their agreement to maintain confidentiality to the same degree as required by this Protective Order;
f. An author, signatory, prior recipient, or the original source of the Protected Material. Such person shall be given access only to the specific document or information therein, such as during a deposition in accordance with the provisions of Paragraph 27;
g. Subject to Paragraph 21, jury consultants or trial consultants retained by or on behalf of a party to assist outside counsel for any party in connection with this litigation, together with technicians, assistants, or mock jurors who are (1) supervised by such consultants and (2) subject to a written obligation of confidentiality; and
h. Up to two in-house counsel employed by a party, who are members of at least one state bar in good standing (or a foreign equivalent thereof), and up to two technical or business personnel, to whom disclosure is reasonably necessary for purposes of this litigation. Each in-house counsel and technical or business personnel must execute the form attached hereto as Attachment A.

         PERSONS AUTHORIZED TO REVIEW HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY INFORMATION

         14. Protected Material Designated “HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY” and information contained therein shall be available only to the persons or entities listed in Paragraph 13(a)-(g).

a. Prosecution Bar. Absent written consent from the Producing Party, any individual who receives access to HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY or HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE information shall not be involved in the prosecution of patents or patent applications related to software used in the operation of electric power distribution systems and historian software (software that collects operational and processing data from devices attached to an electric power distribution system and stores this information in a time series database historian) relating to such systems 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.
(i) Exception. The foregoing prosecution bar does not apply as to product information that has been provided to customers or prospective customers or to information that is or has been publicly available even if such information has been designated as HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY. However, the exception does not apply to information designated as HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY-SOURCE CODE or extend to HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY ...

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