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(All parties and counsel listed on Signature Page) 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

THE REGENTS OF THE UNIVERSITY OF 

CALIFORNIA, a California corporation 

Plaintiff, 

v. 

ROGER JINTEH ARRIGO CHEN, an 

individual; GENIA TECHNOLOGIES, INC., a 

Delaware corporation; and DOES 1-25, 

Defendant. 

Case No. 3:16-cv-07396-EMC 

STIPULATED PROTECTIVE ORDER 

AND [PROPOSED] ORDER 

Plaintiff The Regents of the University of California (“Plaintiff” or “the University”), and 

Defendants Roger Jinteh Arrigo Chen and Genia Technologies, Inc. (collectively “Defendants”), 

hereby stipulate through their respective attorneys as follows: 

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. 

This Order does not confer blanket protections on all disclosures or responses to discovery and 

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. As set forth 

in Section 14.4 below, this Protective Order does not entitle the Parties to file confidential 
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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, documents, and things the 

Designating Party believes in good faith is/are not generally known to others, and which 

the 

Designating Party (i) would not normally reveal to third parties except in confidence or 

has 

undertaken with others to maintain in confidence, or (ii) believes in good faith is protected 

by a right to privacy under federal or state law or any other applicable privilege or right 

related to confidentiality or privacy. 

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

well as their support staff). 

2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter. 

2.5 Designating Party: a Party or Non-Party that designates information or items that it 

produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE.” 

2.6 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. 

2.7 Expert: 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 
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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. 

2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 

Items: extremely sensitive “Confidential Information or Items,” 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. 

2.9 “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. 

2.10 House Counsel: attorneys who are employees of a party to this action, or of an 

entity related to a party, such as a parent corporation. House Counsel does not include Outside 

Counsel of Record or any other outside counsel. 

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

entity not named as a Party to this action. 

2.12 Outside Counsel of Record: attorneys who are not employees of a party to this 

action but are retained to represent or advise a party to this action and 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. 

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

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

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

Material in this action. 

2.15 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 
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subcontractors. This definition includes a professional jury or trial consultant retained in 

connection with this litigation and mock jurors retained by such a consultant to assist them in 

their work. Professional Vendors do not include consultants who fall within the definition of 

Expert set forth above. 

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

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or 

“HIGHLY CONFIDENTIAL – SOURCE CODE.” 

2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a 

Producing Party. 

3. SCOPE 

The protections conferred by this 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 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 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, 
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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. 

To the extent it is practical to do so, 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 have been made in bad faith or 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) may 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 at all or do not qualify for the level of protection 

initially asserted, 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, 

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,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ 

EYES ONLY,” 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, 
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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 “HIGHLY CONFIDENTIAL – 

ATTORNEYS’ EYES ONLY.” 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 appropriate legend (“CONFIDENTIAL,” “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” 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. 

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

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

other proceeding, all protected testimony and specify the level of protection being asserted. When 

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 have up to 30 days to identify the specific portions of the testimony as to which 

protection is sought and to specify the level of protection being asserted. Alternatively, a 

Designating Party may specify, at the deposition or up to 30 days afterwards, that the entire 

transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 

ATTORNEYS’ EYES ONLY.” Until the 30-day period has elapsed, all transcripts shall be 

treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 

Parties shall give the other parties notice if they reasonably expect a deposition, hearing, 
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or other proceeding to include Protected Material so that the other parties can ensure that only 

authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” 

(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition 

shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 

Transcripts containing Protected Material shall have an obvious legend on the title page 

that the transcript contains Protected Material, and the title page shall be followed by a list of all 

pages (including line numbers as appropriate) that have been designated as Protected Material and 

the level of protection being asserted by the Designating Party. The Designating Party shall 

inform the court reporter of these requirements. Any transcript that is prepared before the 

expiration of the 30-day period for designation shall be treated during that period as if it had been 

designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless 

otherwise agreed. After the expiration of that period, the transcript shall be treated only as 

actually designated. 

(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,” 

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” 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 specify 

the level of protection being asserted. 

5.3 Inadvertent Failures to Designate. An inadvertent failure to designate qualified 

information, documents or things as “CONFIDENTIAL” or HIGHLY CONFIDENTIAL - 

ATTORNEYS’ EYES ONLY” does not waive the Designating Party’s right to secure protection 

under this Order for such Material. Upon discovery of an inadvertent failure to designate, a 

Producing Party may notify the Receiving Party in writing that the Material is to be designated as 

“CONFIDENTIAL”, “ATTORNEYS’ EYES ONLY”, Upon receipt of such notice, the Receiving 

Party must make all reasonable efforts to assure that the Material is treated in accordance with the 
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terms of this Order, subject to the right to challenge the propriety of such designation(s). The 

Producing Party shall provide substitute copies of documents bearing the confidentiality 

designation. Any Receiving Party will also make all reasonable efforts to retrieve any documents 

from anyone who had received the documents prior to the notification to the Receiving Party of 

the inadvertent failure to designate and who is no longer permitted to access the documents under 

the new designation. 

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 

6.1 Timing of Challenges. Any 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. 
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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 14 days 

of the conclusion of the meet and confer process set out in Section 6.2. 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 

make such a motion including the required shall 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 15 below (FINAL 

DISPOSITION). 

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. 
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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” only to: 

(a) the Receiving Party’s Outside Counsel of Record in this action, including 

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 

information for this litigation; 

(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, and Professional Vendors including 

professional jury or trial consultants, 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 Protective Order; and 

(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 – ATTORNEYS’ EYES ONLY” and 

“HIGHLY CONFIDENTIAL – SOURCE CODE” 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 “HIGHLY CONFIDENTIAL – ATTORNEYS’ 
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EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” only to: 

(a) the Receiving Party’s Outside Counsel of Record in this action, as well as 

employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the 

information for this litigation; 

(b) Designated House Counsel of the Receiving Party (1) to whom disclosure 

is reasonably necessary for this litigation, (2) who has signed the “Acknowledgment and 

Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 

7.4(a)(1), below, have been followed;1

(c) 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 7.4(a)(2), below, 

have been followed; 

(d) the court and its personnel; 

(e) court reporters and their staff, and Professional Vendors including 

professional jury or trial consultants to whom disclosure is reasonably necessary for this litigation 

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

(f) the author or recipient of a document containing the information or a 

custodian or other person who otherwise possessed or knew the information. 

7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE” Information or Items to Designated House Counsel or Experts. 

(a)(1) Unless otherwise ordered by the court or agreed to in writing by the 

Designating Party, a Party that seeks to disclose to Designated House Counsel any information or 

item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 

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

 

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designated “HIGHLY CONFIDENTIAL – SOURCE CODE.” 
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sets forth the full name of the Designated House Counsel and the city and state of his or her 

residence and (2) describes the Designated House Counsel’s current and reasonably foreseeable 

future primary job duties and responsibilities (including a statement of whether the Designated 

House Counsel is involved in any competitive decision making). 

(a)(2) 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 – ATTORNEYS’ 

EYES ONLY” or “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 – ATTORNEYS’ EYES ONLY” or “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,2

 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 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 

Designated House Counsel or Expert unless, within 10 days of delivering the request, the Party 

receives a written objection from the Designating Party. Any such objection must set forth in 

 

2

 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the 

Expert should provide whatever information the Expert believes can be disclosed without violating any 

confidentiality agreements, and the Party seeking to disclose to the Expert shall be available to meet and confer with 

the Designating Party regarding any such engagement. 
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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 Designated House Counsel or 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 disclosure to Designated House Counsel or 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 Designated House Counsel or 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 Designated House Counsel or Expert. 

8. 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) Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE 

CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – 

ATTORNEYS’ EYES ONLY” information and may be disclosed only to the individuals to 

whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be 

disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House 

Counsel. 
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(c) 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 Producing Party’s counsel or another mutually 

agreed upon location. The source code shall be made available for inspection on a secured 

computer in a secured room without Internet access or network access to other computers, 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 may visually monitor the 

activities of the Receiving Party’s representatives during any source code review, but only to 

ensure that there is no unauthorized recording, copying, or transmission of the source code. 

(d) 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 purpose of 

reviewing the source code other than electronically as set forth in paragraph (c) in the first 

instance. The Producing Party shall provide all such source code in paper form, including 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. 

(e) 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 
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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. 

9. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER 

LITIGATION 

If a Party is served with a subpoena or a court order issued in other litigation that compels 

disclosure of any information or items designated in this action as “CONFIDENTIAL,” 

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL 

– SOURCE CODE,” 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 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.3

 

If the Designating Party timely seeks a protective order, the Party served with the 

subpoena or court order shall not produce any information designated in this action as 

“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” or 

“HIGHLY CONFIDENTIAL – SOURCE CODE” 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 confidential 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. 

 

3

 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to 

afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from 

which the subpoena or order issued. 
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10. 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,” “HIGHLY CONFIDENTIAL – 

ATTORNEYS’ EYES ONLY,” 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 

Non-Party’s confidential information in its possession, and the Party is subject to an agreement 

with the Non-Party not to produce 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 NonParty; 

2. promptly provide the Non-Party with a copy of the 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 consent to the production of its confidential information 

within 14 days, to the extent not prohibited by pre-existing confidentiality obligations, the 

Producing Party shall identify the name of the non-consenting Non-Party to the Receiving Party 

so that the Receiving Party can negotiate with the Non-Party directly. 

11. 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 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 
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Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to 

Be Bound” that is attached hereto as Exhibit A. 

12. PROSECUTION BAR 

Any attorney representing any Party, whether in-house or outside counsel, and any person 

associated with a Party who receives another Party’s Protected Material that is designated 

“HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – 

SOURCE CODE” and/or who reviews, accesses, or otherwise learns, in whole or in part, the 

other Party’s Protected Material that is designated “HIGHLY CONFIDENTIAL - ATTORNEYS’ 

EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” shall not participate in the 

drafting, amendment, substitution or proposing for substitution of any patent claims pertaining to 

the technology of the inventions of the patents-in-suit (including semiconductors, processors, and 

related software for use in nanopore sensors and related devices for sensing nucleic acids or other 

polymer-based molecules and/or the fabrication or use thereof) (“Relevant Technology”) on 

behalf of the Receiving Party or its acquirer, successor, predecessor, exclusive licensee, or other 

affiliate during the pendency of this Action and for one year after its conclusion, including any 

appeals. For the sake of clarity, this Bar shall prohibit the participation of any individual who is 

associated with or has represented a Party who has received any of another Party’s HIGHLY 

CONFIDENTIAL– ATTORNEYS’ EYES ONLY or “HIGHLY CONFIDENTIAL – SOURCE 

CODE” materials in the drafting, amendment, substitution or proposing for substitution of any 

patent claims relating to the Relevant Technology on behalf of any entity having a financial 

interest in this litigation, including without limitation ONT, Ltd., Roche, or any affiliated entity, 

or other entity that Roche has, or has had within the past 5 years, a 10% or more ownership 

interest in during the pendency of this Action and for one year after its conclusion, including any 

appeals. 

Nothing in this paragraph shall prevent any attorney or person associated with a Receiving 

Party that has received another Party’s or non-party’s HIGHLY CONFIDENTIALATTORNEYS’ EYES ONLY or HIGHLY CONFIDENTIAL – SOURCE CODE material from 

participating in any way in any post-grant patent proceedings (e.g., reexamination, inter partes 
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review, post-grant review, interference and/or derivation proceedings, and/or the transitional 

program for covered business method patents) that is instituted or sought to be instituted 

challenging the validity of any of the Genia Patents or the University Patent Applications, any 

patents within the same family as any of the Genia Patents or the University Patent Applications, 

or any patents to which any of the Genia Patents or the University Patent Applications claims 

priority; however, said attorney or person may not assist the Party in drafting, amending or 

proposing for substitution patent claims in a post-grant patent proceeding(s). 

The receipt or review of those portions of documents and materials containing the 

following shall not trigger the Prosecution Bar set forth above: (i) publicly available publications, 

including patents and published patent applications; (ii) publicly available materials regarding 

third-party systems or products that were publicly known, on sale, or in public use; 

(iii) information that is otherwise publicly available; and (iv) documents and information related 

solely to damages or reasonable royalty rates. 

The Patent Prosecution Bar set forth in the paragraphs above shall be personal to any 

attorney who reviews, accesses, or otherwise learns Protected Materials designated “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE” and shall not be imputed to any other persons or attorneys at the attorney’s law firm or 

company unless information concerning the Protected Materials was communicated to an 

individual by one who reviewed such Protected Materials. The Patent Prosecution Bar set forth in 

the paragraphs above shall begin when Protected Materials designated as “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE 

CODE”, are first reviewed, accessed, or otherwise learned by the affected individual and shall 

end one year after final termination of this action, including appeals. However, the end of this 

Prosecution Bar shall not impact the duration of confidentiality obligations otherwise imposed by 

this Order. 
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13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED 

MATERIAL 

Inspection or production of documents (including physical objects) shall not constitute a 

waiver of the attorney-client privilege or work product immunity or any other applicable privilege 

or immunity from discovery if after the Producing Party becomes aware of any inadvertent or 

unintentional disclosure, the Producing Party designates any such documents as within the 

attorney-client privilege or work product immunity or any other applicable privilege or immunity 

and requests in writing return of such documents to the Producing Party. Upon request by the 

Producing Party, the Receiving Party shall immediately retrieve and return (or destroy) any and 

all copies of such inadvertently produced document(s), including retrieving and returning (or 

destroying) any and all copies distributed to others (e.g., experts, consultants, vendors). Nothing 

herein shall prevent the Receiving Party from challenging the propriety of the attorney-client 

privilege or work product immunity or other applicable privilege or immunity designation. In the 

event of such a challenge by the Receiving Party, the parties shall meet and confer by telephone 

or in person within three (3) days after the challenge is made to try to resolve the matter by 

agreement. If agreement cannot be reached, the parties promptly shall arrange for a call with the 

Court to seek resolution of the dispute. A Receiving Party may not retain any copies of any 

inadvertently produced document for any purpose, including the purpose of challenging the 

propriety of the attorney-client privilege or work product immunity or other applicable privilege 

or immunity designation; however, the Producing Party must add the document to a privilege log. 

14. MISCELLANEOUS 

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

seek its modification by the court in the future. 

14.2 Right to Assert Other Objections. 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 Protective Order. Similarly, no Party waives any right to object on any ground to use in 

evidence of any of the material covered by this Protective Order. 
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14.3 Export Control. Disclosure of Protected Material shall be subject to all applicable 

laws and regulations relating to the export of technical data contained in such Protected Material, 

including the release of such technical data to foreign persons or nationals in the United States or 

elsewhere. The Producing Party shall be responsible for identifying any such controlled technical 

data, and the Receiving Party shall take measures necessary to ensure compliance. 

14.4 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 Protected Material in the public record pursuant to Civil Local Rule 

79-5(e)(2) unless otherwise instructed by the court. 

15. FINAL DISPOSITION 

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, 
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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. 

Dated: September 21, 2017 

BAKER BOTTS LLP 

By: /s/ Stuart C. Plunkett 

Stuart C. Plunkett (SBN 187971) 

stuart.plunkett@bakerbotts.com 

Ariel D. House (State Bar No. 280477) 

ariel.house@bakerbotts.com 

101 California Street, Suite 3070 

San Francisco, California 94111 

Telephone: (415) 291-6200 

Facsimile: (415) 291-6300 

Paul R. Morico (pro hac vice) 

paul.morico@bakerbotts.com 

Elizabeth D. Flannery (pro hac vice) 

liz.flannery@bakerbotts.com 

One Shell Plaza 

901 Louisiana Street 

Houston, Texas 77002 

Telephone: (713) 229-1234 

Facsimile: (713) 229-1522 

Counsel for Plaintiff 

The Regents of the University of California

WILMER CUTLER PICKERING 

HALE AND DORR LLP 

/s/ Sarah Beigbeder Petty 

Robert J. Gunther, Jr. (NY SBN: 1967652) 

robert.gunther@wilmerhale.com 

Omar Khan (pro hac vice) 

omar.khan@wilmerhale.com 

7 World Trade Center 

250 Greenwich Street 

New York, NY 10007 

Telephone: (212) 230-8800 

Facsimile: (212) 230-8888 

Robert M. Galvin (State Bar No. 171508) 

robert.galvin@wilmerhale.com 

950 Page Mill Road 

Palo Alto, CA 94304 

Telephone: 650-858-6000 

Facsimile: 650-858-6100 

Sarah B. Petty (pro hac vice) 

sarah.petty@wilmerhale.com 

60 State Street 

Boston, MA 02109 

Telephone: 617-526-6000 

Facsimile: 617-526-5000 

Nora Q.E. Passamaneck (pro hac vice) 

nora.passamaneck@wilmerhale.com 

1225 17th Street, Suite 2600 

Denver, CO 80202 

Telephone: 720-274-3135 

Facsimile: 720-274-3133 

Counsel for Defendants 

Roger Jinteh Arrigo Chen and 

Genia Technologies, Inc.
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ATTESTATION REGARDING SIGNATURES 

I, Stuart C. Plunkett, attest that all signatories listed, and on whose behalf the filing is 

submitted, concur in the filing’s content and have authorized the filing. 

 

Dated: September 21, 2017 By: /s/ Stuart C. Plunkett__

 Stuart C. Plunkett 
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PURSUANT TO STIPULATION, IT IS SO ORDERED. 

DATED: ________________________ _____________________________________ 

Edward M. Chen 

United States District Judge 

9/22/17

U

NITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IT IS SO ORDERED

Judge Edward M. Chen
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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 Protective Order that was issued by the United States District Court for the 

Northern District of California on _______ [date] in the case of The Regents of the University of 

California v. Roger Jinteh Arrigo Chen, Genia Technologies, Inc., and Does 1-25, Case No. 3:16-

cv-07396-EMC. I agree to comply with and to be bound by all the terms of this 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 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 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 Protective Order. 

Date: _________________________________ 

City and State where sworn and signed: _________________________________ 

Printed name: ______________________________ 

[printed name] 

Signature: __________________________________ 

[signature]