[PROPOSED] STIPULATED No. 3:17-cv-00039-JD 

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Laura D. Berger (FL Bar No. 11762) 

Federal Trade Commission 

901 Market Street, Suite 570 

San Francisco, CA 94103 

P: (202) 326-2471/F: (415) 848-5184 

lberger@ftc.gov 

Kevin H. Moriarty (DC Bar No. 975904) 

Federal Trade Commission 

600 Penn. Ave. NW, Mail Drop CC-8232 

Washington, DC 20580 

P: (202) 326-2949/F: (202) 326-3062 

kmoriarty@ftc.gov 

Attorneys for Plaintiff Federal Trade 

Commission

Cause Of Action Institute 

Patrick J. Massari [admitted pro hac vice] 

[Lead Counsel] 

patrick.massari@causeofaction.org 

Michael Pepson [admitted pro hac vice] 

michael.pepson@causeofaction.org 

Kara E. Mckenna [admitted pro hac vice] 

kara.mckenna@causeofaction.org 

1875 Eye Street N.W., Suite 800 

Washington, D.C. 20006 

Telephone: (202) 422-4332 

Facsimile: (202) 330-5842 

Pillsbury Winthrop Shaw Pittman LLP 

Laura C. Hurtado (CSB #267044) 

laura.hurtado@pillsburylaw.com 

Four Embarcadero Center, 22nd Floor 

San Francisco, California 94111 

Telephone: (415) 983-1000 

Facsimile: (415) 983-1200 

Attorneys for Defendants D-Link Systems, Inc.

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

FEDERAL TRADE COMMISSION, 

 Plaintiff, 

 v. 

D-LINK SYSTEMS, INC., 

 Defendants. 

Civil Action No. 

3:17-cv-00039-JD 

[PROPOSED] PROTECTIVE ORDER 

REGARDING DISCOVERY MATERIALS 

1. PURPOSES AND LIMITATIONS 

Disclosure and discovery activity in this action are likely to involve production of 

confidential, proprietary, or private information for which special protection from public 

disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 

Accordingly, the parties hereby stipulate to and petition the court to enter the following 
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Stipulated Protective 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 only to the limited information or items that are entitled to 

confidential treatment under the applicable legal principles. The parties further acknowledge, as 

set forth in Section 12.3, below, that this Stipulated Protective Order does not entitle them to file 

confidential information under seal; Civil Local Rule 79-5 sets forth the procedures that must be 

followed and the standards that will be applied when a party seeks permission from the court to 

file material under seal. 

2. DEFINITIONS 

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 generated, 

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

Procedure 26(c). For purposes of this Order only, Confidential Information or Items also 

includes information that is “confidential material” under Paragraphs 1 and 2 of Appendix A to 

§ 3.31: Standard Protective Order of the FTC Rule of Practice, 16 C.F.R. § 3.31, including 

Sensitive Personal Information. 

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

their support staff). 

2.4 Designating Party: a Party or Non-Party that designates information or items that 

it produces in disclosures or in responses to discovery as Confidential or “HIGHLY 

CONFIDENTIAL – SOURCE CODE”. 

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

medium or manner in which it is generated, stored, or maintained (including, among other things, 

testimony, transcripts, and tangible things), that are produced or generated in disclosures or 

responses to discovery in this matter, or were produced or generated in disclosures or responses 

by or through D-Link Systems to the Federal Trade Commission during the pre-complaint 

investigation by the Federal Trade Commission, Matter No. 1323157. 
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2.6 Expert: a person with specialized knowledge or experience in a matter pertinent 

to the litigation who has been retained by a Party or its counsel to serve as an expert witness or as 

a consultant in this action. With respect to any “HIGHLY CONFIDENTIAL — SOURCE 

CODE,” expert means a person with specialized knowledge or experience in a matter pertinent to 

the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or 

as a 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 competitor. 

2.7 House Counsel: attorneys who are employees of a party to this action. 

2.8 Non-Party: any natural person, partnership, corporation, association, or other 

legal entity not named as a Party to this action. 

2.9 Counsel of Record: attorneys who have appeared in this action on behalf of that 

party or are affiliated with a law firm which has appeared on behalf of that party. 

2.10 Party: any party to this action, including all of its officers, directors, employees, 

consultants, retained experts, and Counsel of Record (and their support staffs). 

2.11 Producing Party: a Party or Non-Party that produces Disclosure or Discovery 

Material in this action. 

2.12 Professional Vendors: persons or entities that provide litigation support services 

(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and 

organizing, storing, or retrieving data in any form or medium) and their employees and 

subcontractors. 

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

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – SOURCE CODE”. Any document or 

portion thereof or other information that was submitted by or through D-Link Systems during the 

Federal Trade Commission pre-Complaint investigation that was designated as “Confidential” or 

“Highly Confidential” or otherwise as confidential pursuant to Section 21 of the FTC Act, 15 

U.S.C. § 57b-2 is also “Protected Material.” 
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2.14 Receiving Party: a Party that receives Disclosure or Discovery Material from a 

Producing Party. 

2.15 Sensitive Personal Information. Any information that includes a Person’s Social 

Security number or taxpayer identification number alone, or a Person’s name or address or phone 

number in combination with one or more of the following: date of birth, Social Security Number, 

taxpayer identification number, driver’s license number or other state identification number (or a 

foreign country equivalent), passport number, personal financial information, such as bank 

account, credit card, or debit card number(s), and sensitive health information, including medical 

records or other individually identifiable health information relating to the past, present, or future 

physical or mental health or conditions of a Person, the provision of health care to a Person, or 

the past, present, or future payment for the provision of health care to the Person 

2.16 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: 

extremely sensitive “Confidential Information or Items” representing computer code and 

associated comments and revision histories, formulas, engineering specifications, or schematics 

that define or otherwise 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. 

3. SCOPE 

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

(as defined above), but also (1) any information copied or extracted from Protected Material; 

(2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, 

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 publication not involving a violation of this Order, including becoming part of the 

public record through trial or otherwise; and (b) any information known to the Receiving Party 

prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who 
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obtained the information lawfully and under no obligation of confidentiality to the Designating 

Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 

4. DURATION 

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 otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all 

claims and defenses in this action, with or without prejudice; and (2) final judgment herein after 

the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this 

action, including the time limits for filing any motions or applications for extension of time 

pursuant to applicable law. 

5. DESIGNATING PROTECTED MATERIAL 

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. 

The Designating Party must designate for protection only those parts of material, documents, 

items, or oral or written communications that qualify – so that other portions of the material, 

documents, items, or communications for which protection is not warranted are not swept 

unjustifiably within the ambit of this Order. 

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

shown to be clearly unjustified or that have been made for an improper purpose (e.g., to 

unnecessarily encumber or retard the case development process or to impose unnecessary 

expenses and burdens on other parties) expose the Designating Party to sanctions. 

If it comes to a Designating Party’s attention that information or items that it designated 

for protection do not qualify for protection, that Designating Party must promptly notify all other 

Parties that it is withdrawing the mistaken designation. 

5.2 Manner and Timing of Designations. Except as otherwise provided in this Order 

(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, 
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Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so 

designated before the material is disclosed or produced. 

Designation in conformity with this Order requires: 

(a) for information in documentary form (e.g., paper or electronic documents, but 

excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing 

Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – SOURCE CODE” 

to each page that contains protected material. If only a portion or portions of the material on a 

page qualifies for protection, the Producing Party also must clearly identify the protected 

portion(s) (e.g., by making appropriate markings in the margins), and must specify, for each 

portion, the level of protection being asserted. 

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

need not designate them for protection until after the inspecting Party has indicated which 

material it would like copied and produced. During the inspection and before the designation, all 

of the material made available for inspection shall be deemed “CONFIDENTIAL.” After the 

inspecting Party has identified the documents it wants copied and produced, the Producing Party 

must determine which documents, or portions thereof, qualify for protection under this Order. 

Then, before producing the specified documents, the Producing Party must affix the 

“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – SOURCE CODE” legend to each page 

that contains Protected Material. If only a portion or portions of the material on a page qualifies 

for protection, the Producing Party also must clearly identify the protected portion(s) (e.g., by 

making appropriate markings in the margins). 

(b) for testimony given in deposition or in other pretrial or trial proceedings, that the 

Designating Party identify on the record, before the close of the deposition, hearing, or other 

proceeding, all protected testimony. If during a deposition in this proceeding, a deponent (or the 

deponent’s counsel) fails to designate as Confidential appropriate portions of the deponent’s 

deposition testimony on the record during the course of or at the close of the deposition, the 

deponent (or the deponent’s counsel) may, no later than ten days after the deposition transcript 

becomes available to the deponent, designate as Confidential those portions of the transcript that 
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contain Confidential Information. The Confidential designation may be accomplished by 

marking “CONFIDENTIAL” every page of the transcript that contains Confidential Information, 

notifying all Parties of the transcript page and line numbers of the pages deemed to be 

Confidential, and marking the first and last such pages of such ranges as “CONFIDENTIAL – 

START” and “CONFIDENTIAL – END,” respectively. Until the earlier of the expiration of this 

ten-day period or the Confidential designation, the entire deposition transcript shall be treated as 

Confidential. With respect to any depositions that it is impractical to identify separately each portion of 

testimony that is entitled to protection and it appears that substantial portions of the testimony may 

qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, or 

other proceeding is concluded) a right to have up to 21 days after the transcript is available to identify the 

specific portions of the testimony as to which protection is sought. Only those portions of the testimony 

that are appropriately designated for protection within said 21-day period shall be covered by the 

provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at the 

deposition or up to 21 days afterwards if that period is properly invoked, that the entire transcript shall be 

treated as “CONFIDENTIAL.”

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

tangible items, that the Producing Party affix in a prominent place on the exterior of the 

container or containers in which the information or item is stored the legend “CONFIDENTIAL” 

or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a portion or portions of the 

information or item warrant protection, the Producing Party, to the extent practicable, shall 

identify the protected portion(s), and must specify, for each portion, the level of protection being 

asserted.

5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to 

designate qualified information or items does not, standing alone, waive the Designating Party’s 

right to secure protection under this Order for such material. Upon timely correction of a 

designation, the Receiving Party must make reasonable efforts to assure that the material is 

treated in accordance with the provisions of this Order. 
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6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 

6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 

confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality 

designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic 

burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to 

challenge a confidentiality designation by electing not to mount a challenge promptly after the 

original designation is disclosed. 

6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution 

process by providing written notice of each designation it is challenging and describing the basis 

for each challenge. To avoid ambiguity as to whether a challenge has been made, the written 

notice must recite that the challenge to confidentiality is being made in accordance with this 

specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in 

good faith and must begin the process by conferring directly (in voice to voice dialogue; other 

forms of communication are not sufficient) within 14 days of the date of service of notice. In 

conferring, the Challenging Party must explain the basis for its belief that the confidentiality 

designation was not proper and must give the Designating Party an opportunity to review the 

designated material, to reconsider the circumstances, and, if no change in designation is offered, 

to explain the basis for the chosen designation. A Challenging Party may proceed to the next 

stage of the challenge process only if it has engaged in this meet and confer process first or 

establishes that the Designating Party is unwilling to participate in the meet and confer process in 

a timely manner. 

6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court 

intervention, the Designating Party shall file and serve a motion to retain confidentiality under 

Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days 

of the initial notice of challenge or within 14 days of the parties agreeing that the meet and 

confer process will not resolve their dispute, whichever is earlier. Each such motion must be 

accompanied by a competent declaration affirming that the movant has complied with the meet 

and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to 
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make such a motion including the required declaration within 21 days (or 14 days, if applicable) 

shall automatically waive the confidentiality designation for each challenged designation. In 

addition, the Challenging Party may file a motion challenging a confidentiality designation at 

any time if there is good cause for doing so, including a challenge to the designation of a 

deposition transcript or any portions thereof. Any motion brought pursuant to this provision must 

be accompanied by a competent declaration affirming that the movant has complied with the 

meet and confer requirements imposed by the preceding paragraph. 

The burden of persuasion in any such challenge proceeding shall be on the Designating 

Party. Frivolous challenges, and those made for an improper purpose (e.g., to harass or impose 

unnecessary expenses and burdens on other parties) may expose the Challenging Party to 

sanctions. Unless the Designating Party has waived the confidentiality designation by failing to 

file a motion to retain confidentiality as described above, all parties shall continue to afford the 

material in question the level of protection to which it is entitled under the Producing Party’s 

designation until the court rules on the challenge. 

7. ACCESS TO AND USE OF PROTECTED MATERIAL 

7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed 

or produced by another Party or by a Non-Party in connection with this case only for 

prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be 

disclosed only to the categories of persons and under the conditions described in this Order. 

When the litigation has been terminated, a Receiving Party must comply with the provisions of 

Section 13 below (FINAL DISPOSITION), except as provided in Section 12.4 (FTC Regulatory 

and Statutory Obligations). 

Protected Material must be stored and maintained by a Receiving Party at a location and 

in a secure manner that ensures that access is limited to the persons authorized under this Order. 

7.2 Disclosure of Confidential Information or Items. Unless otherwise ordered by the 

court or permitted in writing by the Designating Party, a Receiving Party may disclose any 

information or item designated “CONFIDENTIAL” or other Protected Material (except for any 

“HIGHLY CONFIDENTIAL – SOURCE CODE”) only to: 
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(a) the Receiving Party’s Counsel of Record in this action, as well as employees of said 

Counsel of Record to whom it is reasonably necessary to disclose the information for this 

litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 

attached hereto as Exhibit A; 

(b) the officers, directors, and employees (including House Counsel) of the Receiving 

Party to whom disclosure is reasonably necessary for this litigation and who have signed the 

“Acknowledgment and Agreement to Be Bound” (Exhibit A); 

(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is 

reasonably necessary for this litigation and who have signed the “Acknowledgment and 

Agreement to Be Bound” (Exhibit A); 

(d) the court and its personnel; 

(e) court reporters and their staff, professional jury or trial consultants, mock jurors, and 

Professional Vendors to whom disclosure is reasonably necessary for this litigation and who 

have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 

(f) during their depositions, witnesses in the action to whom disclosure is reasonably 

necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 

A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of 

transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be 

separately bound by the court reporter and may not be disclosed to anyone except as permitted 

under this Stipulated Protective Order. 

(g) the author or recipient of a document containing the information or a custodian or 

other person who otherwise possessed or knew the information. 

7.3 Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or 

Items. In the event that a Party or Non-Party produces Disclosure or Discovery Material that is 

designated as “HIGHLY CONFIDENTIAL – SOURCE CODE” in this action, unless otherwise 

ordered by the court or permitted in writing by the Designating Party, a Receiving Party may 

disclose any information or item designated “HIGHLY CONFIDENTIAL – SOURCE CODE” 

only to: 
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(a) the Receiving Party’s Counsel of Record in this action, as well as employees of said 

Counsel of Record to whom it is reasonably necessary to disclose the information for this 

litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is 

attached hereto as Exhibit A; 

 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for 

this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit 

A), and (3) as to whom the procedures set forth in paragraph 7.3.1, below, have been followed; 

(c) the court and its personnel; 

(d) court reporters and their staff, professional jury or trial consultants, and Professional 

Vendors to whom disclosure is reasonably necessary for this litigation and who have signed the 

“Acknowledgment and Agreement to Be Bound” (Exhibit A); and 

(e) the author or recipient of a document containing the information or a custodian or 

other person who otherwise possessed or knew the information. 

7.3.1 Procedures for Approving or Objecting to Disclosure of “HIGHLY 

CONFIDENTIAL – SOURCE CODE” Information or Items to Experts. 

(a) Unless otherwise ordered by the court or agreed to in writing by the Designating 

Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or 

item that has been designated ““HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to 

paragraph 7.3(c) first must make a written request to the Designating Party that (1) identifies the 

general categories of “HIGHLY CONFIDENTIAL – SOURCE CODE” information that the 

Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the 

Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s 

current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person or 

entity from whom the Expert has received compensation or funding for work in his or her areas 

of expertise or to whom the expert has provided professional services, including in connection 

with a litigation, at any time during the preceding five years, and (6) identifies (by name and 

number of the case, filing date, and location of court) any litigation in connection with which the 
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Expert has offered expert testimony, including through a declaration, report, or testimony at a 

deposition or trial, during the preceding five years. 

(b) A Party that makes a request and provides the information specified in the preceding 

respective paragraphs may disclose the subject Protected Material to the identified Expert unless, 

within 14 days of delivering the request, the Party receives a written objection from the 

Designating Party. Any such objection must set forth in detail the grounds on which it is based. 

(c) A Party that receives a timely written objection must meet and confer with the 

Designating Party (through direct voice to voice dialogue) to try to resolve the matter by 

agreement within seven days of the written objection. If no agreement is reached, the Party 

seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7 

(and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court 

to do so. Any such motion must describe the circumstances with specificity, set forth in detail the 

reasons why the disclosure to the Expert is reasonably necessary, assess the risk of harm that the 

disclosure would entail, and suggest any additional means that could be used to reduce that risk. 

In addition, any such motion must be accompanied by a competent declaration describing the 

parties’ efforts to resolve the matter by agreement (i.e., the extent and the content of the meet and 

confer discussions) and setting forth the reasons advanced by the Designating Party for its refusal 

to approve the disclosure. 

In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden 

of proving that the risk of harm that the disclosure would entail (under the safeguards proposed) 

outweighs the Receiving Party’s need to disclose the Protected Material to its Expert. 

7.3.2 PROSECUTION BAR 

Absent written consent from the Producing Party, any individual who receives access to 

“HIGHLY CONFIDENTIAL – SOURCE CODE” information shall not be involved in the 

prosecution of patents or patent applications relating to subject matter of the highly confidential 

technical information produced, 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 
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Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution” includes 

directly or indirectly drafting, amending, advising, or otherwise affecting the scope or 

maintenance of patent claims. To avoid any doubt, “prosecution” as used in this paragraph does 

not include representing a party challenging a patent before a domestic or foreign agency 

(including, but not limited to, a reissue protest, ex parte reexamination or inter partes 

reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL – 

SOURCE CODE” information is first received by the affected individual and shall end two (2) 

years after final termination of this action. 

7.3.3 SOURCE CODE 

(a) To the extent production of source code becomes necessary in this case, a 

Producing Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” 

if it comprises or includes confidential, proprietary or trade secret source code. 

 (b) Any source code produced in discovery shall be made available for 

inspection, in a format allowing it to be reasonably reviewed and searched, during normal 

business hours or at other mutually agreeable times, at an office of the Receiving Party’s counsel 

or another mutually agreed upon location. The source code shall be made available for inspection 

in a secured room, on a secured computer without Internet access or network access to other 

computers for a mutually agreed upon time duration, and the Receiving Party shall not copy, 

remove, or otherwise transfer any portion of the source code onto any recordable media or 

recordable device. The Producing Party must have an opportunity to approve, but such approval 

may not be unreasonably withheld, the Receiving Party’s arrangement for complying with terms 

set forth above. In addition, a person of the Producing Party’s choosing may sit outside of the 

secured room during the Receiving Party’s review of any source code, as set forth above. 

(c) The Receiving Party may request paper copies of limited portions of 

source code that are reasonably necessary for the preparation of court filings, pleadings, expert 

reports, or other papers, or for deposition or trial, but shall not request paper copies for the 

purposes of reviewing the source code other than electronically as set forth in paragraph (b) in 

the first instance. The Producing Party shall provide all such source code in paper form including 
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bates numbers and the label “HIGHLY CONFIDENTIAL - SOURCE CODE.” The Producing 

Party may challenge the amount of source code requested in hard copy form pursuant to the 

dispute resolution procedure and timeframes set forth in Paragraph 6 whereby the Producing 

Party is the “Challenging Party” and the Receiving Party is the “Designating Party” for purposes 

of dispute resolution. 

(d) The Receiving Party shall maintain a record of any individual who has 

inspected any portion of the source code in electronic or paper form. The Receiving Party shall 

maintain all paper copies of any printed portions of the source code in a secured, locked area. 

The Receiving Party shall not create any electronic or other images of the paper copies and shall 

not convert any of the information contained in the paper copies into any electronic format. The 

Receiving Party shall only make additional paper copies if such additional copies are (1) 

necessary to prepare court filings, pleadings, or other papers (including a testifying expert’s 

expert report), (2) necessary for deposition, or (3) otherwise necessary for the preparation of its 

case. Any paper copies used during a deposition shall be retrieved by the Producing Party at the 

end of each day and must not be given to or left with a court reporter or any other unauthorized 

individual. 

8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 

LITIGATION 

If a Party is served with a subpoena, court order, discovery request in other litigation, 

request pursuant to the Freedom of Information Act, or other request that compels disclosure of 

any Protected Material, that Party must: 

(a) promptly notify in writing the Designating Party. Such notification shall include a 

copy of the subpoena or court order; 

(b) promptly notify in writing the party who caused the subpoena or order to issue in the 

other litigation that some or all of the material covered by the subpoena or order is subject to this 

Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 

(c) cooperate with respect to all reasonable procedures sought to be pursued by the 

Designating Party whose Protected Material may be affected. 
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If the Designating Party timely seeks a protective order, the Party served with the 

subpoena or court order shall not produce any Protected Material before a determination by the 

court from which the subpoena or order issued, unless the Party has obtained the Designating 

Party’s permission. The Designating Party shall bear the burden and expense of seeking 

protection in that court of its Protected Material – and nothing in these provisions should be 

construed as authorizing or encouraging a Receiving Party in this action to disobey a lawful 

directive from another court. 

9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 

LITIGATION 

(a) The terms of this Order are applicable to information produced by a Non-Party in this 

action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL—SOURCE 

CODE.” Such information produced by Non-Parties in connection with this litigation is 

protected by the remedies and relief provided by this Order. Nothing in these provisions should 

be construed as prohibiting a Non-Party from seeking additional protections. 

(b) In the event that a Party is required, by a valid discovery request, to produce a NonParty’s confidential information in its possession, and the Party is subject to an agreement with 

the Non-Party not to produce or use the Non-Party’s confidential information, then the Party 

shall: 

(1) promptly notify in writing the Requesting Party and the Non-Party that some or all of 

the information requested is subject to a confidentiality agreement with a Non-Party; 

(2) promptly provide the Non-Party with a copy of the Stipulated Protective Order in this 

litigation, the relevant discovery request(s), and a reasonably specific description of the 

information requested; and 

(3) make the information requested available for inspection by the Non-Party. 

(c) If the Non-Party fails to object or seek a protective order from this court within 14 

days of receiving the notice and accompanying information, the Receiving Party may produce 

the Non-Party’s confidential information responsive to the discovery request. If the Non-Party 

timely seeks a protective order, the Receiving Party shall not produce any information in its 
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possession or control that is subject to the confidentiality agreement with the Non-Party before a 

determination by the court. Absent a court order to the contrary, the Non-Party shall bear the 

burden and expense of seeking protection in this court of its Protected Material. 

10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 

If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected 

Material to any person or in any circumstance not authorized under this Stipulated Protective 

Order, the Receiving Party must immediately (a) notify in writing the Designating Party of the 

unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the 

Protected Material, (c) inform the person or persons to whom unauthorized disclosures were 

made of all the terms of this Order, and (d) request such person or persons to execute the 

“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 

11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 

MATERIAL 

When a Producing Party gives notice to Receiving Parties that certain inadvertently 

produced material is subject to a claim of privilege or other protection, the obligations of the 

Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 

provision is not intended to modify whatever procedure may be established in an e-discovery 

order that provides for production without prior privilege review. Pursuant to Federal Rule of 

Evidence 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 

communication or information covered by the attorney-client privilege or work product 

protection, the parties may incorporate their agreement in the stipulated protective order 

submitted to the court. 

12. MISCELLANEOUS 

12.1 Right to Further Relief. Nothing in this Order abridges the right of any person to 

seek its modification by the court in the future. 

12.2 Right to Assert Other Objections. By stipulating to the entry of this Protective 

Order no Party waives any right it otherwise would have to object to disclosing or producing any 

information or item on any ground not addressed in this Stipulated Protective Order. Similarly, 
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no Party waives any right to object on any ground to use in evidence of any of the material 

covered by this Protective Order. 

12.3 Filing Protected Material. Without written permission from the Designating Party 

or a court order secured after appropriate notice to all interested persons, a Party may not file in 

the public record in this action any Protected Material. A Party that seeks to file under seal any 

Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be 

filed under seal pursuant to a court order authorizing the sealing of the specific Protected 

Material at issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a 

request establishing that the Protected Material at issue is privileged, protectable as a trade 

secret, or otherwise entitled to protection under the law. If a Receiving Party’s request to file 

Protected Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then 

the Receiving Party may file the information in the public record pursuant to Civil Local Rule 

79-5(f) unless otherwise instructed by the court. If a party seeks to file under seal any Protected 

Material, the parties shall meet and confer either prior to the filing of an administrative motion to 

seal or as soon thereafter as practicable regarding the applicability of Paragraph 31 of the 

Standing Order for Civil Cases. If feasible, the parties will meet and confer to minimize the 

number of administrative motions filed pursuant to Civil L.R. 79-5(e), where practicable. 

12.4 FTC Regulatory and Statutory Obligations. Notwithstanding this Order, the FTC 

may use Discovery Material that is not Protected Material and may preserve or disclose 

Discovery Material (including Protected Material) to the extent required by law—including in 

connection with the FTC’s good-faith compliance with litigation holds in other matters—subject 

to the FTC taking appropriate steps to preserve the confidentiality of the documents in question 

pursuant to the FTC’s Rules of Practice, 16 C.F.R. §0.1, et seq., Sections 6(f) and 21 of the 

Federal Trade Commission Act, and other applicable law. Furthermore, notwithstanding this 

Protective Order, the Commission may, to the extent required by law and subject to taking 

appropriate steps to preserve confidentiality, disclose and use Protected Material in responding to 

either: (a) a formal request from either House of Congress or from any committee or 

subcommittee of Congress, consistent with applicable law, including Sections 6(f) and 21 of the 
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FTC Act, 15 U.S.C. §§ 46(f) and 57b-2; or (b) a federal or state access request pursuant to 

Commission Rules 4.11(c) and (d), 16 C.F.R. § 4.11(c) and (d). Unless the applicable statute or 

regulation prohibits providing such notice, the FTC shall provide reasonable prior notice of any 

such disclosure or use of Protected Materials to the Designating Party as required by applicable 

law and by Section 8 (Protected Material Subpoenaed or Ordered Produced In Other Litigation) 

of this Order. 

13. FINAL DISPOSITION 

Except as authorized under Section 12.4 (FTC Statutory and Regulatory Obligations), 

within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving 

Party must return all Protected Material to the Producing Party or destroy such material. As used 

in this subdivision, “all Protected Material” includes all copies, abstracts, compilations, 

summaries, and any other format reproducing or capturing any of the Protected Material. 

Whether the Protected Material is returned or destroyed, the Receiving Party must submit a 

written certification to the Producing Party (and, if not the same person or entity, to the 

Designating Party) by the 60 day deadline that (1) identifies (by category, where appropriate) all 

the Protected Material that was returned or destroyed and (2) affirms that the Receiving Party has 

not retained any copies, abstracts, compilations, summaries or any other format reproducing or 

capturing any of the Protected Material. Notwithstanding this provision, Counsel are entitled to 

retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 

legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work 

product, and consultant and expert work product, even if such materials contain Protected 

Material. Any such archival copies that contain or constitute Protected Material remain subject to 

this Protective Order as set forth in Section 4 (DURATION). 

14. MODIFICATION 

This Stipulated Order may be modified by a Stipulated Order of the parties or by the 

Court for good cause shown. 
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 

Submitted with attestation that concurrence 

in the filing of this document has been obtained 

from the signatories. 

/s/ Laura D. Berger__________________ /s/ Patrick J. Massari_________________ 

Laura D. Berger 

Federal Trade Commission 

901 Market Street, Suite 570 

San Francisco, CA 94103 

Kevin H. Moriarty 

Federal Trade Commission 

600 Penn. Ave. NW, Mail Drop CC-8232 

Washington, DC 20580 

Attorneys for Plaintiff Federal Trade 

Commission

Patrick J. Massari 

[Lead Counsel] 

Michael Pepson 

Kara E. Mckenna 

Cause of Action Institute 

1875 Eye Street N.W., Suite 800 

Washington, D.C. 20006 

Pillsbury Winthrop Shaw Pittman LLP 

Laura C. Hurtado 

Four Embarcadero Center, 22nd Floor 

San Francisco, California 94111 

Attorneys for Defendant D-Link Systems, Inc. 

PURSUANT TO STIPULATION, IT IS SO ORDERED. 

Dated: 

HONORABLE JAMES DONATO 

UNITED STATES DISTRICT JUDGE 

 
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EXHIBIT A 

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 

I, _____________________________ [print or type full name], of _________________ 

[print or type full address], declare under penalty of perjury that I have read in its entirety and 

understand the Stipulated Protective Order that was issued by the United States District Court for 

the Northern District of California on [date] in the case of ___________ [insert formal name of 

the case and the number and initials assigned to it by the court]. I agree to comply with and to be 

bound by all the terms of this Stipulated Protective Order and I understand and acknowledge that 

failure to so comply could expose me to sanctions and punishment in the nature of contempt. I 

solemnly promise that I will not disclose in any manner any information or item that is subject to 

this Stipulated Protective Order to any person or entity except in strict compliance with the 

provisions of this Order. 

I further agree to submit to the jurisdiction of the United States District Court for the 

Northern District of California for the purpose of enforcing the terms of this Stipulated 

Protective Order, even if such enforcement proceedings occur after termination of this action. 

I hereby appoint __________________________ [print or type full name] of 

_______________________________________ [print or type full address and telephone 

number] as my California agent for service of process in connection with this action or any 

proceedings related to enforcement of this Stipulated Protective Order. 

Date: ______________________________________ 

City and State where sworn and signed: _________________________________ 

Printed name: _______________________________ 

Signature: __________________________________