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Case No. 5:17-CV-00220-LHK 1 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

SAN JOSE DIVISION 

FEDERAL TRADE COMMISSION 

Plaintiff, 

v. 

QUALCOMM INCORPORATED, a Delaware 

corporation, 

Defendant. 

Case No. 5:17-cv-00220-LHK 

SUPPLEMENTAL PROTECTIVE 

ORDER GOVERNING PRODUCTION 

OF NON-PARTY INTEL 

CORPORATION’S PROTECTED 

MATERIALS 

WHEREAS, on May 1, 2017, the Court entered a Protective Order Governing 

Confidential Material in the above-captioned case. Docket No. 81 (the “Protective Order”). 

Section 5.4 of the Protective Order addresses the production in this case of documents produced 

to the FTC by Non-Parties 1 during the FTC’s pre-complaint investigation (the “FTC 

Investigation”), as well as transcripts of investigational hearings of Non-Parties during the FTC 

Investigation and other investigative material; 

WHEREAS, Intel Corporation (“Intel”) produced documents to the FTC during the FTC 

Investigation, and witnesses affiliated with Intel were questioned by the FTC during 

investigational hearings, and that material is now requested for production by the FTC under the 

provisions of Section 5.4 of the Protective Order; 

WHEREAS, Intel provided documents and other information to the FTC during the FTC 

investigation under an expectation of confidentiality, and that material contains highly sensitive 

 

1

 Unless otherwise stated, capitalized terms in this Order refer to the defined terms in the 

Protective Order. 
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Case No. 5:17-CV-00220-LHK 2 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

business and trade secrets, the disclosure of which to customers, competitors, or other parties—

including Defendant Qualcomm Inc. (“Qualcomm”)—would result in significant injury to Intel; 

WHEREAS, Section 5.4(b) of the Protective Order invites Non-Parties to seek a 

protective order from this Court regarding the FTC’s production of its confidential information, 

and Section 10.1 of the Protective Order states that its provisions should not be construed as 

prohibiting a Non-Party from seeking additional protections for its confidential materials; 

WHEREFORE, IT IS HEREBY ORDERED, that the terms of the Protective Order apply 

to “INTEL MATERIAL” (defined below), except as modified herein. 

A. Definitions 

1. “INTEL MATERIAL” includes: (1) documents produced by Intel to the FTC 

during the FTC Investigation; (2) transcripts of Intel witnesses’ 2 investigational hearing 

testimony obtained by the FTC during the FTC Investigation; (3) the portions of any other 

documents in the FTC’s possession, custody or control that disclose the substance of such 

documents or transcripts and produced by the FTC pursuant to Section 5.4 of the Protective 

Order, and (4) any other Disclosure and Discovery Materials produced by Intel or obtained from 

Intel or Intel witnesses in this case. 

2. “INTEL HIGHLY CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES 

ONLY” Information or Items: refers to any INTEL MATERIAL that satisfy the requirements of 

HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY Information or Items in Section 2.9 

of the Protective Order. 

3. “INTEL PROTECTED MATERIAL” includes: INTEL MATERIAL designed as 

either CONFIDENTIAL or INTEL HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ 

EYES ONLY. 

B. Designation of Protected Material 

4. Any INTEL MATERIAL may be designated CONFIDENTIAL in accordance 

 

2

 For the purposes of this Supplemental Order, “Intel Witnesses” shall include current and former 

employees of Intel who offered testimony to the FTC regarding their employment at Intel as part 

of the FTC’s Investigation. 
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Case No. 5:17-CV-00220-LHK 3 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

with the terms of the Protective Order, including Section 5.4. 

5. Notwithstanding the provisions of Section 5 of the Protective Order, Intel shall 

designate its HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY Information or Items 

as “INTEL HIGHLY CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY,” including 

without limitation designations made pursuant to Section 5.4(b); otherwise, all provisions 

governing the manner and timing of the designation of HIGHLY CONFIDENTIAL—

ATTORNEYS’ EYES ONLY Information or Items apply to the designation of INTEL HIGHLY 

CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY Information or Items. 

C. Access to And Use of Intel Protected Material 

6. Except as modified herein, INTEL MATERIAL designated CONFIDENTIAL 

pursuant to the Protective Order shall be treated in accordance with the provisions of the 

Protective Order that govern the treatment of CONFIDENTIAL Information or Items, including 

without limitation Section 7. 

7. Unless otherwise ordered by the Court or permitted in writing by Intel, INTEL 

HIGHLY CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY Material shall not be 

disclosed, directly or indirectly, to anyone except the following: 

(a) persons who appear on the face of the Protected Material as an author, 

addressee, or recipient, or who are the custodians of the Protected Material; 

(b) Qualcomm’s Outside Counsel of Record in this action, as well as 

employees of said Outside Counsel of Record (1) who do not provide commercial advice (as 

opposed to legal advice) to Qualcomm and (2) to whom it is reasonably necessary to disclose the 

information for this litigation; 

(c) The Court and its personnel; 

(d) court reporters and their staff, 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” attached as Exhibit A to the Protective Order; 
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Case No. 5:17-CV-00220-LHK 4 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

(e) Experts (as defined in the Protective Order), subject to the provisions and 

limitations set forth in Section D herein; 

(f) witnesses as permitted in Paragraph 14 of this Order; and 

(g) FTC Commissioners and FTC counsel who have appeared in this action, 

as well as other Commission employees to whom it is reasonably necessary to disclose the 

information for this litigation. 

8. Notwithstanding the provisions herein, the FTC may, subject to taking appropriate 

steps to preserve confidentiality, disclose and use INTEL PROTECTED MATERIAL in 

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

or subcommittee of either House of Congress, consistent with applicable law, including Sections 

6(f) and 21 of the 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). In such instances, 

the FTC shall provide Intel with fourteen (14) days prior written notice of such disclosure unless 

the applicable statute or regulation prohibits such notice, in which case the Commission shall 

comply with the applicable statute or regulation. 

9. Each person to whom INTEL PROTECTED MATERIAL may be disclosed, and 

who is required to sign the “Acknowledgment and Agreement to Be Bound” attached as Exhibit 

A to the Protective Order shall do so, prior to the time such INTEL PROTECTED MATERIAL 

is disclosed to him or her. Counsel for a Party who makes such a disclosure shall provide the 

recipient a copy of this Order as well as the Protective Order. Counsel for a Party who makes 

any disclosure of Protected Material shall retain each original executed acknowledgement and, 

upon written request, shall provide copies to counsel for all other parties at the termination of 

this action. 

D. Access by Experts 

10. Unless otherwise ordered by the Court or agreed to in writing by Intel, a 

Receiving Party that seeks to disclose to an Expert (as defined in the Protective Order) any 

information or item that has been designated INTEL HIGHLY CONFIDENTIAL—OUTSIDE 
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Case No. 5:17-CV-00220-LHK 5 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

ATTORNEYS’ EYES ONLY first must make a written request by email to counsel of record for 

Intel that (1) identifies the general categories of “INTEL HIGHLY CONFIDENTIAL—

OUTSIDE ATTORNEYS’ EYES ONLY” 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,3 and (6) identifies (by name and number of the case, filing date, and 

location of court) any litigation in connection with which the Expert has offered expert 

testimony, including through declaration, report, or testimony at a deposition or trial, during the 

preceding five years.4

11. A Receiving Party that makes a request and provides the information specified in 

the preceding paragraph may disclose the subject Protected Material to the identified Expert 

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

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

12. A Receiving Party that receives a timely written objection from Intel must meet 

and confer with Intel (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 

 

3

 If the Expert believes any of this information is subject to a confidentiality obligation to a thirdparty, then the Expert should provide whatever information the Expert believes can be disclosed 

without violating any confidentiality agreements, and the Receiving Party seeking to disclose to 

the Expert shall be available to meet and confer with Intel regarding any such engagement. 

4

 Intel will keep the Receiving Party’s written request, and all information disclosed therein, 

confidential and will not disclose that information to anyone outside of Intel, including any other 

Party. 
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Case No. 5:17-CV-00220-LHK 6 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

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 Intel for its refusal to approve 

the disclosure. If no agreement is reached, no INTEL HIGHLY CONFIDENTIAL—OUTSIDE 

ATTORNEYS’ EYES ONLY Item or Information shall be disclosed to the Expert unless or until 

the Court grants the Receiving Party permission to do so. 

13. In any such proceeding, Intel 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.

E. Use of Protected Material 

14. Use of Designated Material at Depositions and During Trial Testimony. Except 

as may be otherwise ordered by the Court, any person may be examined as a witness at 

depositions, hearings and trial and may testify concerning INTEL HIGHLY CONFIDENTIAL— 

OUTSIDE ATTORNEYS’ EYES ONLY Information or Items of which such person has prior 

knowledge. Without in any way limiting the generality of the foregoing:

(a) A present director, officer, agent, employee and/or designated 

Rule 30(6)(b) witness of Intel may be examined and may testify concerning INTEL HIGHLY 

CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY Information or Items; 

(b) A former director, officer, agent and/or employee of Intel may be 

interviewed, examined and may testify concerning INTEL HIGHLY CONFIDENTIAL— 

OUTSIDE ATTORNEYS’ EYES ONLY Information or Items of which he or she has prior 

knowledge, including any material that refers to matters of which the witness has personal 

knowledge, which has been produced by the FTC or Intel and which pertains to the period or 

periods of his or her prior employment with Intel; 

(c) Any other witness may be examined at deposition or otherwise testify 

concerning any document containing INTEL HIGHLY CONFIDENTIAL—OUTSIDE 
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Case No. 5:17-CV-00220-LHK 7 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

ATTORNEYS’ EYES ONLY Information or Items which appears on its face or from other 

documents or testimony to have been received from or communicated to that witness as a result 

of any contact or relationship with Intel, or a representative of Intel; and 

(d) At deposition, any person other than the witness, his or her attorney(s), 

and any person qualified to receive INTEL HIGHLY CONFIDENTIAL— OUTSIDE 

ATTORNEYS’ EYES ONLY Information or Items under this Order shall be excluded from the 

portion of the examination concerning such information, unless Intel consents to persons other 

than qualified recipients being present at the examination. If the witness is represented by an 

attorney who is not qualified under this Order to receive such information, then prior to the 

examination, the attorney shall be requested to provide an “Acknowledgment and Agreement to 

be Bound” attached as Exhibit A to the Protective Order, and to confirm that he or she will 

comply with the terms of this Order and maintain the confidentiality of INTEL HIGHLY 

CONFIDENTIAL— OUTSIDE ATTORNEYS’ EYES ONLY Information or Items disclosed 

during the course of the examination. In the event that such attorney declines to sign the 

“Acknowledgment and Agreement to be Bound” prior to the examination, Intel may seek a 

protective order from the Court, in a motion to which the Parties will not object, prohibiting such 

attorney from disclosing INTEL HIGHLY CONFIDENTIAL— OUTSIDE ATTORNEYS’ 

EYES ONLY Information or Items. 

15. Use of Designated Material at Trial or Hearings. INTEL HIGHLY 

CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY Information or Items may not be 

disclosed, directly or indirectly, in an open hearing without prior written consent from Intel. If 

the disclosing party wishes to obtain that consent from Intel, it should notify Intel’s counsel of its 

intent to disclose such material at least seventy-two (72) hours in advance of such disclosure, and 

describe the materials to be disclosed with reasonable particularity. Otherwise, the disclosing 

party must first request that the courtroom be sealed, and that only those authorized to review 

INTEL HIGHLY CONFIDENTIAL—OUTSIDE ATTORNEYS’ EYES ONLY Information or 

Items remain during the presentation of such material.
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Case No. 5:17-CV-00220-LHK 8 SUPPLEMENTAL PROTECTIVE ORDER 

GOVERNING PRODUCTION OF NON-PARTY INTEL 

CORPORATION’S PROTECTED MATERIALS

16. Filing of Designated Material. The provisions of Civil L.R. 79-5 govern the filing 

of any INTEL PROTECTED MATERIAL, including without limitation the process by which 

Intel shall receive notice of said filing, and the process by which Intel must establish that the 

filed material is sealable

17. This Supplemental Protective Order incorporates by reference all provisions of 

the Protective Order entered by this Court on May 1, 2017 (Docket No. 81) to the extent not 

expressly referenced herein, except where there is a conflict between the terms of this 

Supplemental Protective Order and the May 1, 2017 Protective Order, in which case this 

Supplemental Protective Order shall govern.

IT IS SO ORDERED. 

Dated: May __, 2017 

 

Honorable Nathanael M. Cousins 

United States Magistrate Judge