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In re subpoenas to Broadcom, Corp.

United States District Court, C.D. California

September 7, 2017

In re subpoenas to BROADCOM, CORPORATION, a California corporation. Underlying litigation: TQ DELTA, LLC,
v.
2WIRE, INC., Case No. 13-cv-1835-RGA TQ DELTA, LLC,
v.
ZHONE TECHNOLOGIES, INC., Case No. 13-cv-1836-RGA TQ DELTA, LLC,
v.
ZYXEL COMMUNICATIONS, INC. and ZYXEL COMMUNICATIONS CORPORATION, Case No. 13-cv-2013-RGA TQ DELTA, LLC,
v.
ADTRAN, INC., Case No. 14-cv-954-RGA ADTRAN, INC.,
v.
TQ DELTA, LLC, Case No. 15-cv-121-RGA

          [Proposed] PROTECTIVE ORDER

          ALKA SAGAR UNITED STATES MAGISTRATE JUDGE

         WHEREAS, The Honorable Richard G. Andrews, United States District Judge, entered a Protective Order to govern discovery in the above-referenced underlying actions (“the action”) (“the Underlying Protective Order”) (Case No. 1:13-cv-01835-RGA, Dkt. 72 (D. Del.)); and

         WHEREAS, Broadcom Corporation (“Broadcom”), a non-party to these action has been subpoenaed by TQ Delta, LLC (“TQ Delta”) to produce Source Code and other documents in this action that include or incorporate confidential information belonging to Broadcom (“Broadcom Confidential Information”);

         WHEREAS TQ Delta and Broadcom have agreed to additional provisions to protect against misuse or improper disclosure of such Broadcom Confidential Information; and WHEREAS TQ Delta and Broadcom have jointly filed a Motion for a Protective Order in this Court; and

         THE COURT HAVING FOUND GOOD CAUSE;

         THEREFORE the following Protective Order is entered. Broadcom Confidential Information produced in connection with the above-captioned matter that is designated as “BROADCOM - OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" shall be subject to the following restrictions:

         A. Definitions

         1. “Defendants”: the following defendants 2Wire, Inc., Zhone Technologies, Inc., ZyXEL Technologies, Inc., ZyXEL Communications Corp., and Adtran, Inc., who may have a need to access Broadcom Confidential Information.

         2. “Broadcom Material”: all information, documents, testimony, and things produced, served, or otherwise provided in this action by any Party or by Non-Party Broadcom, that include or incorporate Broadcom Confidential Information.

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

         4. “Party” shall have the same meaning ascribed to it in the Underlying Protective Order.

         5. “Producing Party” and “Receiving Party” shall have the same meanings as ascribed to those terms in the Underlying Protective Order, except that both definitions as used herein shall also extend to “Designated Broadcom Material” as defined herein.

         6. “Authorized Reviewer(s)” shall mean persons authorized to review “BROADCOM - OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE" material in accordance with this Order and the Underlying Protective Order.

         7. For purposes of this Order, “Source Code” includes human-readable programming language text that defines software, firmware, or hardware representations. Text files containing Source Code shall hereinafter be referred to as “Source Code Files.” Source Code Files include, but are not limited to files containing Source Code in “C”, “C”, assembler, digital signal processor (DSP), or any other programming languages. 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. Source Code Files also include code content that represents hardware design, including code in HDL (VHDL, Verilog), RTL, etc., that translates into gates after synthesis.

         8. “BROADCOM - OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE” material: Source Code that Broadcom believes in good faith includes or incorporates Broadcom's Confidential Information that 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 Non-Party Broadcom would not normally reveal to third parties except in confidence, or has undertaken with others to maintain in confidence. This includes Broadcom Source Code in the Producing Party's possession, custody, or control, and made available for inspection by the Producing Party.

         9. “Designated Broadcom Material”: material that is designated “BROADCOM - OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE” under this Order.

         10. “Counsel of Record”: (i) outside counsel who appears on the pleadings, or have entered an appearance in the underlying litigation, 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. This definition is subject to the requirements of Judge Andrews' Order dated September 26, 2016.

         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 a litigation consultant in this action (including any necessary support personnel of such person to whom disclosure is reasonably necessary for this litigation), 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, or a non-litigation consultant of: 1) a Party, 2) a competitor of a Party, or 3) a competitor of Non-Party Broadcom.

         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 or directed 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: 1) a Party, 2) a competitor of a Party, or 3) a competitor of Non-Party Broadcom. This definition includes ESI vendors, and professional jury or trial consultants retained in connection with this litigation to assist a Party, as well as companies retained to perform escrow and hosting services for Source Code. Professional vendors do not include consultants who fall within the definition of Outside Consultant.

         B. Relationship to Underlying Protective Order

         1. This Order shall not diminish any existing restriction with respect to Designated Broadcom Material. TQ Delta acknowledges and agrees that this Order is a supplement to the Underlying Protective Order entered in this action. The Underlying Protective Order applies to all material designated pursuant to this Order. To the extent that any provisions in this Order and the Underlying Protective Order conflict or otherwise differ, this Order shall govern.

         C. Scope

         1. The protections conferred by this Order cover not only Designated Broadcom Material (as defined above), but also any information copied or extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof.

         2. This Order shall not prevent a disclosure to which Non-Party Broadcom consents in writing before that disclosure takes place.

         3. This Order shall apply to all Broadcom Source Code designated as “BROADCOM - OUTSIDE ATTORNEYS' EYES ONLY - SOURCE CODE” that is produced or provided for inspection by Broadcom in this action, including all Broadcom Source Code that is in the possession, custody or control of Broadcom.

         D. Designating ...


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