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Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

JEFFREY C. HALLAM (SBN 161259)

E-Mail: jhallam@sideman.com

ZACHARY J. ALINDER (SBN 209009)

E-Mail: zalinder@sideman.com

PETER M. COLOSI (SBN 252951)

E-Mail: pcolosi@sideman.com

REBECCA K. FELSENTHAL (SBN 303476)

E-Mail: rfelsenthal@sideman.com

SIDEMAN & BANCROFT LLP

One Embarcadero Center, Twenty-Second Fl.

San Francisco, California 94111-3711

Telephone: (415) 392-1960

Facsimile: (415) 392-0827

Attorneys for Plaintiff 

FITBIT, INC.

[Additional counsel listed on signature page]

JASON BARTLETT (SBN 214530)

jbartlett@mkwllp.com

MARC J. PERNICK (SBN 160591)

mpernick@mkwllp.com

MAURIEL KAPOUYTIAN WOODS LLP

275 Battery Street, Suite 480

San Francisco, California 94111

Telephone: 415-738-6228

Facsimile: 415-738-2315

SHERMAN KAHN (SBN 168924)

skahn@mkwllp.com

15 W. 26th Street, 7th Floor

New York, NY 10010

Telephone: 212-529-5131

Facsimile: 212-529-5132

Attorneys for Defendants

LAGUNA 2, LLC and

JOEL BLANK

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

FITBIT, INC., a Delaware Corporation,

Plaintiff,

v.

LAGUNA 2, LLC, a New Jersey Limited 

Liability Company; JOEL BLANK, an 

individual; CALI RESOURCES, INC., a 

California Corporation; CARLOS KELVIN, 

an individual; and DOES 3-30, inclusive,

Defendants.

Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED 

PROTECTIVE ORDER

Case 3:17-cv-00079-EMC Document 59 Filed 03/07/17 Page 1 of 19
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9461-10\3190901 1 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

Plaintiff Fitbit, Inc. and Defendants Laguna 2, LLC, Joel Blank, Cali Resources, Inc., and 

Carlos Kelvin (together the “parties”), by and through their respective counsel of record, hereby 

submit the following Stipulated Protective Order to govern discovery in this action.

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 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 12.4, 

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).

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” or “HIGHLY 

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9461-10\3190901 2 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 

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

Counsel does not include Outside Counsel of Record or any other outside counsel.

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

entity not named as a Party to this action.

2.11 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.

2.12 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).

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

Material in this action.

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9461-10\3190901 3 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

2.14 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.

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

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

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

Producing Party.

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 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 

Case 3:17-cv-00079-EMC Document 59 Filed 03/07/17 Page 4 of 19
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9461-10\3190901 4 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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 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 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” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 

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

Case 3:17-cv-00079-EMC Document 59 Filed 03/07/17 Page 5 of 19
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9461-10\3190901 5 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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 “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” or “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” ) 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, that the 

Designating Party 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 invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right 

to have up to 21 days to identify the specific portions of the testimony as to which protection is 

sought and to specify the level of protection being asserted. Only those portions of the testimony 

that are appropriately designated for protection within the 21 days 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” or “HIGHLY CONFIDENTIAL –

ATTORNEYS’ EYES ONLY.”

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9461-10\3190901 6 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

Parties shall give the other parties notice if they reasonably expect a deposition, hearing 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 a 

21-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” or 

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

6. CHALLENGING CONFIDENTIALITY DESIGNATIONS

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

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9461-10\3190901 7 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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 

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 

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9461-10\3190901 8 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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).

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

attached hereto as Exhibit A;

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9461-10\3190901 9 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

(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, 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 – ATTORNEYS’ EYES ONLY” 

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’ EYES ONLY” 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 and who have signed the “Acknowledgment and Agreement to Be Bound” that is 

attached hereto as Exhibit A;

(b) Designated House Counsel of the Receiving Party (1) who has no involvement in competitive 

decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3) who has signed the 

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9461-10\3190901 10 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom the procedures set forth 

in paragraph 7.4(a)(1), below, have been followed1

;

(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, 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

(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” 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) 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 in sufficient detail to determine if House Counsel is involved, or may 

become 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 

 

1 Fitbit has designated Gloria Lee as its Designated House Counsel, and the other parties do not 

object to that designation or to her receiving access to information consistent with the terms of this 

Protective Order. 

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9461-10\3190901 11 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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

offered expert testimony, including through a declaration, report, or testimony at a deposition or 

trial, during the preceding five years;

2

(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 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 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 

 

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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9461-10\3190901 12 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

with specificity, set forth in detail the reasons why the 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; and,

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. 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” or 

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 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.

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” 

or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” 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 

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[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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.

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 – ATTORNEYS’ 

EYES ONLY.” 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 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 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 NonParty’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 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.

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9461-10\3190901 14 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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, 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 Legal Advice Based on Protected Material. Nothing in this Protective Order shall 

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9461-10\3190901 15 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

be construed to prevent Counsel from advising their clients with respect to this case based in 

whole or in part upon Protected Materials, provided Counsel does not disclose the Protected 

Material itself except as provided in this Order.

12.4 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.

13. 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, 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 

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9461-10\3190901 16 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

archival copies that contain or constitute Protected Material remain subject to this Protective Order 

as set forth in Section 4 (DURATION).

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.

DATED: March 3, 2017 SIDEMAN & BANCROFT, LLP

By: /s/ Zachary J. Alinder 

Zachary J. Alinder, Esq. 

Attorneys for Plaintiff Fitbit, Inc.

DATED: March 3, 2017 MAURIEL KAPOUYTIAN WOODS LLP

By: /s/ Jason Bartlett

Jason Bartlett, Esq.

Attorneys for Defendants Laguna 2, LLC and Joel 

Blank

DATED: March 3, 2017 ONE LLP

By: /s/ Stephen M. Lobbin

Stephen M. Lobbin, Esq.

Attorneys for Defendants Cali Resources, Inc. 

and Carlos Kelvin

PURSUANT TO STIPULATION, IT IS SO ORDERED.

DATED: ___________________ _____________________________________

EDWARD M. CHEN

United States District Judge

3/7/17

U

NITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

IT IS SO ORDERED

Judge Edward M. Chen

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9461-10\3190901 17 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

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 Fitbit, Inc. v. Laguna 2, LLC, et al., 

Case No. 3:17-cv-00079 EMC. 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: ______________________________

[printed name]

Signature: __________________________________

[signature]

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9461-10\3190901 18 Case No. 3:17-cv-00079 EMC

[PROPOSED] STIPULATED PROTECTIVE ORDER

LAW OFFICES

SIDEMAN

& BANCROFT LLP

ONE EMBARCADERO CENTER, 22ND FLOOR

SAN FRANCISCO, CALIFORNIA 94111-3711

ATTESTATION OF CONCURRENCE

I hereby attest pursuant to Civil Local Rule 5-1(i)(3) that concurrence in the electronic 

filing of this document has been obtained from the other signatories.

DATED: March 3, 2017 SIDEMAN & BANCROFT, LLP

By: /s/ Zachary J. Alinder 

Zachary J. Alinder, Esq. 

Case 3:17-cv-00079-EMC Document 59 Filed 03/07/17 Page 19 of 19