EXHIBIT G

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 1

of 21
UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

Plaintiff, 

v. 

Defendant. 

Case No. C 

STIPULATED PROTECTIVE ORDER FOR 

LITIGATION INVOLVING PATENTS, 

HIGHLY SENSITIVE CONFIDENTIAL 

INFORMATION AND/OR TRADE 

SECRETS 

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 14.4, 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. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 2

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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 Optional: 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 CONFIDENTIAL 

– ATTORNEYS’ EYES ONLY” [Optional: 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 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 Optional: “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 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 3

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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. 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 subcontractors. 

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

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

“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 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 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 4

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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 applicable law. 

5. DESIGNATING PROTECTED MATERIAL 

5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or NonParty 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., 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 5

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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” [Optional: or 

“HIGHLY CONFIDENTIAL – SOURCE CODE”] to each page that contains protected material. If only a 

portion or portions of the material on a page qualifies for protection, the Producing Party also must clearly 

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

each portion, the level of protection being asserted. 

A Party or Non-Party that makes original documents or materials available for inspection need not 

designate them for protection until after the inspecting Party has indicated which material it would like 

copied and produced. During the inspection and before the designation, all of the material made available 

for inspection shall be deemed “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” [Optional: 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, 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 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 6

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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.” 

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” [Optional: 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. If timely corrected, an inadvertent failure to designate 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 7

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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 

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, 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 8

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

whichever is earlier.1 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 

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 

 

1

 Alternative: It may be appropriate in certain circumstances for the parties to agree to shift the burden to move on the Challenging 

Party after a certain number of challenges are made to avoid an abuse of the process. The burden of persuasion would remain on the 

Designating Party. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 9

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

manner2 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; 

(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. 

 

2

 It may be appropriate under certain circumstances to require the Receiving Party to store any electronic Protected Material in 

password-protected form. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 10

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: 

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’ EYES ONLY” [Optional: 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 and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto 

as Exhibit A; 

[(b) Optional as deemed appropriate in case-specific circumstances: Designated House 

Counsel of the Receiving Party3 (1) who has no involvement in competitive decision-making, (2) to whom 

disclosure is reasonably necessary for this litigation, (3) who has signed the “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 followed];4

(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,5and 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 

 

3

 It may be appropriate under certain circumstances to limit the number of Designated House Counsel who may access “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information under this provision. 

4

 This Order contemplates that Designated House Counsel shall not have access to any information or items designated “HIGHLY 

CONFIDENTIAL – SOURCE CODE.” It may also be appropriate under certain circumstances to limit how Designated House 

Counsel may access “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information. For example, Designated House 

Counsel may be limited to viewing “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information only if it is filed 

with the court under seal, or in the presence of Outside Counsel of Record at their offices. 

5 Alternative: The parties may wish to allow disclosure of information not only to professional jury or trial consultants, but also to 

mock jurors, to further trial preparation. In that situation, the parties may wish to draft a simplified, precisely tailored Undertaking 

for mock jurors to sign. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 11

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

(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” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE CODE”] 

Information or Items to Designated House Counsel6 or Experts.7

(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 decisionmaking.8

(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” [Optional: 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” [Optional: 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 

 

6 Alternative: The parties may exchange names of a certain number of Designated House Counsel instead of following this 

procedure. 

7 Alternative: “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information or items may be 

disclosed to an Expert without disclosure of the identity of the Expert as long as the Expert is not a current officer, director, or 

employee of a competitor of a Party or anticipated to become one. 

8

 It may be appropriate in certain circumstances to require any Designated House Counsel who receives “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information pursuant to this Order to disclose any relevant changes in job duties 

or responsibilities prior to final disposition of the litigation to allow the Designating Party to evaluate any later-arising competitive 

decision-making responsibilities. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 12

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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,9 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.10

(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 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. 

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 

 

9

 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. 

10 It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to the termination 

of the litigation that could foreseeably result in an improper use of the Designating Party’s “HIGHLY CONFIDENTIAL – 

ATTORNEYS’ EYES ONLY” information. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 13

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its Designated House 

Counsel or Expert. 

8. PROSECUTION BAR [Optional] 

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

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE 

CODE”] information shall not be involved in the prosecution of patents or patent applications relating to 

[insert subject matter of the invention and of highly confidential technical information to be produced], 

including without limitation the patents asserted in this action and any patent or application claiming priority 

to or otherwise related to the patents asserted in this action, before any foreign or domestic agency,

including the United States Patent and Trademark Office (“the Patent Office”).11 For purposes of this 

paragraph, “prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting 

the scope or maintenance of patent claims.12 To avoid any doubt, “prosecution” as used in this paragraph 

does not include representing a party challenging a patent before a domestic or foreign agency (including, 

but not limited to, a reissue protest, ex parte reexamination or inter partes reexamination). This Prosecution 

Bar shall begin when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” [Optional: or 

“HIGHLY CONFIDENTIAL – SOURCE CODE”] information is first received by the affected individual 

and shall end two (2) years after final termination of this action.13

9. SOURCE CODE [Optional] 

(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” 

 

11 It may be appropriate under certain circumstances to require Outside and House Counsel who receive access to “HIGHLY 

CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information to implement an “Ethical Wall.” 

12 Prosecution includes, for example, original prosecution, reissue and reexamination proceedings. 

13 Alternative: It may be appropriate for the Prosecution Bar to apply only to individuals who receive access to another party’s 

“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” technical or source code information pursuant to this Order, such as 

under circumstances where one or more parties is not expected to produce “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 

ONLY” information that is technical in nature or “HIGHLY CONFIDENTIAL – SOURCE CODE” information, 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 14

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 

ONLY” information [Optional: including the Prosecution Bar set forth in Paragraph 8], 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.14

(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.15 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.16

(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 purposes 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 

 

14 It may be appropriate under certain circumstances to allow House Counsel access to derivative materials including “HIGHLY 

CONFIDENTIAL - SOURCE CODE” information, such as exhibits to motions or expert reports, 

15 Alternative: Any source code produced in discovery shall be made available for inspection in a format through which it could be 

reasonably reviewed and searched during normal business hours or other mutually agreeable times at a location that is reasonably 

convenient for the Receiving Party and any experts to whom the source code may be disclosed. This alternative may be appropriate 

if the Producing Party and/or its counsel are located in a different jurisdiction than counsel and/or experts for the Receiving Party. 

16 It may be appropriate under certain circumstances to require the Receiving Party to keep a paper log indicating the names of any 

individuals inspecting the source code and dates and times of inspection, and the names of any individuals to whom paper copies of 

portions of source code are provided. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 15

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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 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.17

10. 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” [Optional: 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 Stipulated Protective Order; and 

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

 

17 The nature of the source code at issue in a particular case may warrant additional protections or restrictions, For example, it may 

be appropriate under certain circumstances to require the Receiving Party to provide notice to the Producing Party before including 

“HIGHLY CONFIDENTIAL – SOURCE CODE” information in a court filing, pleading, or expert report. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 16

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

Designating Party whose Protected Material may be affected.18

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” [Optional: 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. 

11. 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” [Optional: or “HIGHLY CONFIDENTIAL – SOURCE CODE”]. Such information produced by 

Non-Parties in connection with this litigation is protected by the remedies and relief provided by this Order. 

Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional 

protections. 

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

2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in 

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

requested; and 

 

18 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. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 17

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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.19 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. 

12. 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. 

13. 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).20 This provision is not intended to 

 

19 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party and to afford 

the Non-Party an opportunity to protect its confidentiality interests in this court. 

20 Alternative: The parties may agree that the recipient of an inadvertent production may not “sequester” or in any way use the 

document(s) pending resolution of a challenge to the claim of privilege or other protection to the extent it would be otherwise 

allowed by Federal Rule of Civil Procedure 26(b)(5)(B) as amended in 2006. This could include a restriction against “presenting” 

the document(s) to the court to challenge the privilege claim as may otherwise be allowed under Rule 26(b)(5)(B) subject to ethical 

obligations. 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 18

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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. 

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. 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. 

[14.3 Optional: 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, 

 

An alternate provision could state: “If information is produced in discovery that is subject to a claim of privilege or of protection as 

trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis 

for it. After being notified, a party must promptly return or destroy the specified information and any copies it has and may not 

sequester, use or disclose the information until the claim is resolved. This includes a restriction against presenting the information to 

the court for a determination of the claim.” 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 19

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

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, legal 

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

consultant and expert work product, even if such materials contain Protected Material. Any such archival 

copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in 

Section 4 (DURATION). 

IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 

DATED: ________________________ _____________________________________ 

Attorneys for Plaintiff 

DATED: ________________________ _____________________________________ 

Attorneys for Defendant 

PURSUANT TO STIPULATION, IT IS SO ORDERED. 

DATED: ________________________ _____________________________________ 

[Name of Judge] 

United States District/Magistrate Judge 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 20

of 21
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 

EXHIBIT A 

ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 

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

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

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

of California on [date] in the case of ___________ [insert formal name of the case and the number and 

initials assigned to it by the court]. I agree to comply with and to be bound by all the terms of this 

Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose me to 

sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in any

manner any information or item that is subject to this Stipulated Protective Order to any person or entity 

except in strict compliance with the provisions of this Order. 

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

Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 

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

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

_______________________________________ [print or type full address and telephone number] as my 

California agent for service of process in connection with this action or any proceedings related to 

enforcement of this Stipulated Protective Order. 

Date: _________________________________ 

City and State where sworn and signed: _________________________________ 

Printed name: ______________________________ 

[printed name] 

Signature: __________________________________ 

[signature] 

Case: 19-30088 Doc# 2460-7 Filed: 06/07/19 Entered: 06/07/19 20:02:19 Page 21

of 21