The opinion
42.4 UV VUSt SIT PRIN PYVUULTIOCIIL Lu PUM VVtuicy Prayer it Vi ov
1 || LILLIS PITHA LLP
Damien P. Lillis (State Bar No. 191258)
2 || 465 California Street, 5" Floor
San Francisco, CA 94104
3 || Telephone: (415) 814-0405
Facsimile: (415) 217-7011
4 || Email: dlillis @lp-lawyers.com
5 || LILLIS PITHA LLP
Martin L. Pitha (State Bar No. 192447)
6 || 2603 Main Street, Suite 350
Irvine, California 92614
7 || Telephone: (949) 209-9020
Facsimile: (949) 759-1845
8 || Email: mpitha @Ip-lawyers.com
9 || Attorneys for Defendant
Micron Technology, Inc.
10
THE VELEZ LAW FIRM, PC
11 |} Mark Velez (SBN 163484)
3010 Lava Ridge Court, Suite 120
12 || Roseville, California 95661
Telephone: (916) 774-2720
13 || Facsimile: (916) 774-2730
Email: velezlaw @ live.com
14
Attorneys for Plaintiff Dennis Rosseau
15
16
UNITED STATES DISTRICT COURT
17
EASTERN DISTRICT OF CALIFORNIA
18
19
20 || DENNIS ROSSEAU, No. 2:20-cv-00437-TLN-DB
21 Plaintiff, STIPULATED PROTECTIVE ORDER FC
LITIGATION INVOLVING PATENTS,
22 V. HIGHLY SENSITIVE CONFIDENTIAL
INFORMATION AND/OR TRADE
23 || MICRON TECHNOLOGY INC., an Idaho SECRETS
A corporation, and DOES 1-50, inclusive,
5 Defendants.
26
27
28
MwA 2 EOP RING MVE EOC EO OY OVI el
1 1. PURPOSES AND LIMITATIONS
2 Disclosure and discovery activity in this action are likely to involve production of confidentia
3 || proprietary, or private information for which special protection from public disclosure and from use f
4 || any purpose other than prosecuting this litigation may be warranted. Accordingly, the parties hereby
5 || stipulate to and petition the court to enter the following Stipulated Protective Order.
6 The parties acknowledge that this Order does not confer blanket protections on all disclosures
7 || responses to discovery and that the protection it affords from public disclosure and use extends only t
8 || the limited information or items that are entitled to confidential treatment under the applicable legal
9 || principles. The parties further acknowledge, as set forth in Section 14.4, below, that this Stipulated
10 || Protective Order does not entitle them to file confidential information under seal; Civil Local Rule 14
11 || sets forth the procedures that must be followed and the standards that will be applied when a party sec
12 || permission from the court to file material under seal.
13 2. DEFINITIONS
14 2.1 Challenging Party: a Party or Non-Party that challenges the designation of informatior
15 || or items under this Order.
16 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is
17 || generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of
18 || Civil Procedure 26(c).
19 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well a:
20 || their support staff).
21 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY
22 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY” information in this matter.
23 2.5 Designating Party: a Party or Non-Party that designates information or items that it
24 || produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
25 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE
26 || CODE”.
27 2.6 Disclosure or Discovery Material: all items or information, regardless of the □□□□□□
28 || manner in which it is generated, stored, or maintained (including, among other things, testimony,
wOAOe 2 CUVEE EOP RING DMV EOC EO OY VV CY
1 || transcripts, and tangible things), that are produced or generated in disclosures or responses to discove
2 || in this matter.
3 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the
4 || litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a
5 || consultant in this action, (2) is not a past or current employee of a Party or of a Party’s competitor, an
6 || (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s
7 || competitor.
8 2.8 “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” Information or Items:
9 || extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non
10 || Party would create a substantial risk of serious harm that could not be avoided by less restrictive mea
11 2.9 “HIGHLY CONFIDENTIAL — SOURCE CODE” Information or Items: extremely
12 || sensitive “Confidential Information or Items” representing computer code and associated comments ¢
13 || revision histories, formulas, engineering specifications, or schematics that define or otherwise descrit
14 || in detail the algorithms or structure of software or hardware designs, disclosure of which to another
15 || Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
16 || less restrictive means.
17 2.10 House Counsel: attorneys who are employees of a party to this action. House Counsel
18 || does not include Outside Counsel of Record or any other outside counsel.
19 2.11 Non-Party: any natural person, partnership, corporation, association, or other legal ent
20 || not named as a Party to this action.
21 2.12 Qutside Counsel of Record: attorneys who are not employees of a party to this action |
22 || are retained to represent or advise a party to this action and have appeared in this action on behalf of
23 || that party or are affiliated with a law firm which has appeared on behalf of that party.
24 2.13 Party: any party to this action, including all of its officers, directors, employees,
25 |) consultants, retained experts, and Outside Counsel of Record (and their support staffs).
26 2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material
27 || this action.
28 2.15 Professional Vendors: persons or entities that provide litigation support services (e.g.,
wOAOe 2 CUVEE RING MVE ERO EEO OY TV el
1 || photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing.
2 || retrieving data in any form or medium) and their employees and subcontractors.
3 2.16 Protected Material: any Disclosure or Discovery Material that is designated as
4 || “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or as
5 || “HIGHLY CONFIDENTIAL — SOURCE CODE.”
6 2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a
7 || Producing Party.
8 3. SCOPE
9 The protections conferred by this Stipulation and Order cover not only Protected Material (as
10 || defined above), but also (1) any information copied or extracted from Protected Material; (2) all copie
11 || excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or
12 || presentations by Parties or their Counsel that might reveal Protected Material. However, the protectio
13 || conferred by this Stipulation and Order do not cover the following information: (a) any information tl
14 || is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public
15 || domain after its disclosure to a Receiving Party as a result of publication not involving a violation of
16 || this Order, including
17 || becoming part of the public record through trial or otherwise; and (b) any information known to the
18 || Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a
19 || source who obtained the information lawfully and under no obligation of confidentiality to the
20 || Designating Party. Any use of Protected Material at trial shall be governed by a separate agreement o
21 || order.
22 4. DURATION
23 Even after final disposition of this litigation, the confidentiality obligations imposed by this
24 |} Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
25 || otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
26 || defenses in this action, with or without prejudice; and (2) final judgment herein after the completion <
27 || exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the time lim
28 || for filing any motions or applications for extension of time pursuant to applicable law.
MwA 2 CUVEE EOP DMV ER OO EO OY VI CY
1 5. DESIGNATING PROTECTED MATERIAL
2 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or
3 || Non-Party that designates information or items for protection under this Order must take care to limit
4 || any such designation to specific material that qualifies under the appropriate standards. To the extent
5 || is practical to do so, the Designating Party must designate for protection only those parts of material,
6 || documents, items, or oral or written communications that qualify — so that other portions of the
7 || material, documents, items, or communications for which protection is not warranted are not swept
8 || unjustifiably within the ambit of this Order.
9 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown t
10 || be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumbe
11 || or retard the case development process or to impose unnecessary expenses and burdens on other parti
12 || expose the Designating Party to sanctions.
13 If it comes to a Designating Party’s attention that information or items that it designated for
14 || protection do not qualify for protection at all or do not qualify for the level of protection initially
15 || asserted, that Designating Party must promptly notify all other parties that it is withdrawing the
16 || mistaken designation.
17 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see,
18 || e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or
19 || Discovery
20 Material that qualifies for protection under this Order must be clearly so designated before the
1 || material is disclosed or produced.
Designation in conformity with this Order requires:
23 (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 lege
95 || CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY
26 CONFIDENTIAL — SOURCE CODE?” to each page that contains protected material. If only a portio1
97 || oF portions of the material on a page qualifies for protection, the Producing Party also must clearly
28 identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must
MwA 2 CUVEE EO RING DMV EOC EO OY VV el
1 || specify, for each portion, the level of protection being asserted.
2 A Party or Non-Party that makes original documents or materials available for inspection nee:
3 || not designate them for protection until after the inspecting Party has indicated which material it woul
4 || like copied and produced. During the inspection and before the designation, all of the material made
5 || available for inspection shall be deemed “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES
6 || ONLY.” After the inspecting Party has identified the documents it wants copied and produced, the
7 || Producing Party must determine which documents, or portions thereof, qualify for protection under tt
8 || Order. Then, before producing the specified documents, the Producing Party must affix the appropria
9 || legend (‘CONFIDENTIAL” or “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or
10 || “HIGHLY CONFIDENTIAL — SOURCE CODE”) to each page that contains Protected Material. If
11 || only a portion or portions of the material on a page qualifies for protection, the Producing Party also
12 || must clearly identify the protected portion(s) (e.g., by making appropriate markings in the margins) a
13 || must specify, for each portion, the level of protection being asserted.
14 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the
15 || Designating Party identify on the record, before the close of the deposition, hearing, or other
16 || proceeding, all protected testimony and specify the level of protection being asserted. When it is
17 || impractical to identify separately each portion of testimony that is entitled to protection and it appear:
18 || that substantial portions of the testimony may qualify for protection, the Designating Party may invok
19 || on the record (before the deposition, hearing, or other proceeding is concluded) a right to have up to □
20 || days to identify the specific portions of the testimony as to which protection is sought and to specify 1
21 || level of protection being asserted. Only those portions of the testimony that are appropriately designa
22 || for protection within the 21 days shall be covered by the provisions of this Stipulated Protective Orde
23 || Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that
24 || period is properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL” or
25 || “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY.”
26 Parties shall give the other parties notice if they reasonably expect a deposition, hearing
27 || other proceeding to include Protected Material so that the other parties can ensure that only
28 || authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”’
wOAOe 2 ERIN MV ERO EEO OY OV el
1 || (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a depositio
2 || shall not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY
3 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY.”
4 Transcripts containing Protected Material shall have an obvious legend on the title page
5 || that the transcript contains Protected Material, and the title page shall be followed by a list of a
6 || pages (including line numbers as appropriate) that have been designated as Protected Material
7 || and the level of protection being asserted by the Designating Party. The Designating Party shall
8 || inform the court reporter of these requirements. Any transcript that is prepared before the
9 || expiration of a 21-day period for designation shall be treated during that period as if it had bee
10 || designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” in its entirety unless
11 || otherwise agreed. After the expiration of that period, the transcript shall be treated only as
12 || actually designated,
13 (c) for information produced in some form other than documentary and for any other tangible
14 || items, that the Producing Party affix in a prominent place on the exterior of the container or container
15 || in which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY
16 || CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE
17 || CODE.” If only a portion or portions of the information or item warrant protection, the Producing Pat
18 || to the extent practicable, shall identify the protected portion(s) and specify the level of protection
19 || asserted.
20 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designa
21 || qualified information or items does not, standing alone, waive the Designating Party’s right to secure
22 || protection under this Order for such material. Upon timely correction of a designation, the Receiving
23 || Party must make reasonable efforts to assure that the material is treated in accordance with the
24 || provisions of this Order.
25 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
26 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of
27 || confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
28 || designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens,
2 CUVEE EP RING DMV ER OIC EO OY OU VI CY
1 || a significant disruption or delay of the litigation, a Party does not waive its right to challenge a
2 || confidentiality designation by electing not to mount a challenge promptly after the original designatic
3 || is disclosed.
4 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process b’
5 || providing written notice of each designation it is challenging and describing the basis for each
6 || challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recit
7 || that the challenge to confidentiality is being made in accordance with this specific paragraph of the
8 || Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the
9 || process by conferring directly (in voice to voice dialogue; other forms of communication are not
10 || sufficient) within 14 days of the date of service of notice. In conferring, the Challenging Party must
11 || explain the basis for its belief that the confidentiality designation was not proper and must give the
12 || Designating Party an opportunity to review the designated material, to reconsider the circumstances,
13 || and, if no change in designation is offered, to explain the basis for the chosen designation. A
14 || Challenging Party may proceed to the next stage of the challenge process only if it has engaged in thi
15 || meet and confer process first or establishes that the Designating Party is unwilling to participate in th
16 || meet and confer process in a timely manner.
17 6.3. Judicial Intervention. If the Parties cannot resolve a challenge without court interventi
18 || the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 14
19 || within 21 days of the initial notice of challenge or within 14 days of the parties agreeing that the meet
20 || and confer process will not resolve their dispute, whichever is earlier. Each such motion must be
21 || accompanied by a competent declaration affirming that the movant has complied with the meet and
22 || confer requirements imposed in the preceding paragraph. Failure by the Designating Party to make sv
23 || a motion including the required declaration within 21 days (or 14 days, if applicable) shall
24 || automatically waive the confidentiality designation for each challenged designation. In addition, the
25 || Challenging Party may file a motion challenging a confidentiality designation at any time if there is
26 || good cause for doing so, including a challenge to the designation of a deposition transcript or any
27 || portions thereof. Any motion brought pursuant to this provision must be accompanied by a competen
28 || declaration affirming that the movant has complied with the meet and confer requirements imposed b
MwA 2 EOP RING EIOOY
1 || the preceding paragraph.
2 The burden of persuasion in any such challenge proceeding shall be on the Designating Party.
3 || Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary
4 || expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the
5 || Designating Party has waived the confidentiality designation by failing to file a motion to retain
6 || confidentiality as described above, all parties shall continue to afford the material in question the leve
7 || of protection to which it is entitled under the Producing Party’s designation until the court rules on th
8 || challenge.
9 7. ACCESS TO AND USE OF PROTECTED MATERIAL
10 7A Basic Principles. A Receiving Party may use Protected Material that is disclosed or
11 || produced by another Party or by a Non-Party in connection with this case only for prosecuting,
12 || defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to the
13 || categories of persons and under the conditions described in this Order. When the litigation has been
14 || terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL
15 || DISPOSITION).
16 Protected Material must be stored and maintained by a Receiving Party at a location and in a
17 || secure manner that ensures that access is limited to the persons authorized under this Order.
18 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by
19 || the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
20 || information or item designated “CONFIDENTIAL” only to:
21 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of sa
22 || Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
23 || litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached
24 || hereto as Exhibit A;
25 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party tc
26 || whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgme
27 || and Agreement to Be Bound” (Exhibit A);
28 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably
wOAIe 2 CUVEE EOIN ED MVOC PIO Ee OY AU VI cl
1 || necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound
2 || (Exhibit A);
3 (d) the court and its personnel;
4 (e) court reporters and their staff, professional jury or trial consultants, and Professional Vend
5 || to whom disclosure is reasonably necessary for this litigation and who have signed the
6 || “Acknowledgment and Agreement to Be Bound” (Exhibit A);
7 (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessar
8 || and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless
9 || otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed depositi
10 || testimony or exhibits to depositions that reveal Protected Material must be separately bound by the
11 || court reporter and may not be disclosed to anyone except as permitted under this Stipulated Protectiv
12 || Order.
13 (g) the author or recipient of a document containing the information or a custodian or other
14 || person who otherwise possessed or knew the information.
15 7.3. Disclosure of “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” and
16 || “HIGHLY CONFIDENTIAL — SOURCE CODE” Information or Items. Unless otherwise ordered by
17 || the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
18 || information or item designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or
19 || “HIGHLY CONFIDENTIAL — SOURCE CODE?” only to:
20 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of sa
21 || Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this
22 || litigation and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached
23 || hereto as Exhibit A;
24 (b) Designated House Counsel of the Receiving Party (1) who has no involvement in
25 || competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3) w
26 || has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom the
27 || procedures set forth in paragraph 7.4(a)(1), below, have been followed;
28 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this
wOAIe 2 CUVEE EOIN ED MVOC PIO Ee OY tt VI cl
1 |) litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and
2 || (3) as to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed;
3 (d) the court and its personnel;
4 (e) court reporters and their staff, professional jury or trial consultants, and Professional Vend
5 || to whom disclosure is reasonably necessary for this litigation and who have signed the
6 || “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
7 (f) the author or recipient of a document containing the information or a custodian or other
8 || person who otherwise possessed or knew the information.
9 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL —
10 |} ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE CODE” Information or
11 || Items to Designated House Counsel or Experts.
12 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating Party,
13 || Party that seeks to disclose to Designated House Counsel any information or item that has been
14 || designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(
15 || first must make a written request to the Designating Party that (1) sets forth the full name of the
16 || Designated House Counsel and the city and state of his or her residence, and (2) describes the
17 || Designated House Counsel’s current and reasonably foreseeable future primary job duties and
18 || responsibilities in sufficient detail to determine if House Counsel is involved, or may become involve
19 || in any competitive decision-making.
20 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating Party,
21 || Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has be
22 || designated “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY
23 || CONFIDENTIAL — SOURCE CODE” pursuant to paragraph 7.3(c) first must make a written request
24 || the Designating Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL —
25 || ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE CODE” information tha
26 || the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of the Exp
27 || and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s current resur
28 || (4) identifies the Expert’s current employer(s), (5) identifies each person or entity from whom the
10
wOAIe 2 LUV VETO EOIN ED MVOC BIO Ee OY te VI el
1 |) Expert has received compensation or funding for work in his or her areas of expertise or to whom the
2 || expert has provided professional services, including in connection with a litigation, at any time durin;
3 || the preceding five years, and (6) identifies (by name and number of the case, filing date, and location
4 || court) any litigation in connection with which the Expert has offered expert testimony, including
5 || through a declaration, report, or testimony at a deposition or trial, during the preceding five years.
6 (b) A Party that makes a request and provides the information specified in the preceding
7 || respective paragraphs may disclose the subject Protected Material to the identified Designated House
8 || Counsel or Expert unless, within 14 days of delivering the request, the Party receives a written
9 || objection from the Designating Party. Any such objection must set forth in detail the grounds on whic
10 || it is based.
11 (c) A Party that receives a timely written objection must meet and confer with the Designating
12 || Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within seven
13 || days of the written objection. If no agreement is reached, the Party seeking to make the disclosure to
14 || Designated House Counsel or the Expert may file a motion as provided in Civil Local Rule 141
15 || permission from the court to do so. Any such motion must describe the circumstances with □□□□□□□□□□□
16 || set forth in detail the reasons why the disclosure to Designated House Counsel or the Expert is
17 || reasonably necessary, assess the risk of harm that the disclosure would entail, and suggest any
18 || additional means that could be used to reduce that risk. In addition, any such motion must be
19 || accompanied by a competent declaration describing the parties’ efforts to resolve the matter by
20 || agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth the
21 || reasons advanced by the Designating Party for its refusal to approve the disclosure.
22 In any such proceeding, the Party opposing disclosure to Designated House Counsel or the
23 || Expert shall bear the burden of proving that the risk of harm that the disclosure would entail (under tt
24 || safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its
25 || Designated House Counsel or Expert.
26 8. | PROSECUTION BAR
27 Absent written consent from the Producing Party, any individual who receives access to
28 || “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL —
11
wOAIe 2 CUVEE EOP ED MVOC BPO Ee OY tv VI cl
1 |} SOURCE CODE?” information shall not be involved in the prosecution of patents or patent applicatio
2 || relating to the subject matter of the invention and / or of highly confidential technical information to |
3 || produced, including without limitation the patents asserted in this action and any patent or applicatior
4 || claiming priority to or otherwise related to the patents asserted in this action, before any foreign or
5 || domestic agency, including the United States Patent and Trademark Office (“the Patent Office’). For
6 || purposes of this paragraph, “prosecution” includes directly or indirectly drafting, amending, advising
7 || or otherwise affecting the scope or maintenance of patent claims. To avoid any doubt, “prosecution”
8 || used in this paragraph does not include representing a party challenging a patent before a domestic or
9 || foreign agency (including, but not limited to, a reissue protest, ex parte reexamination or inter partes
10 || reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL —
11 |} ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL — SOURCE CODE” information is
12 || first received by the affected individual and shall end two (2) years after final termination of this actic
13 9, | SOURCE CODE
14 (a) To the extent production of source code becomes necessary in this case, a Producing
15 || Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE?” if it comprises
16 || includes confidential, proprietary or trade secret source code.
17 (b) Protected Material designated as “HIGHLY CONFIDENTIAL — SOURCE CODE?” sh
18 || be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES
19 || ONLY” information including the Prosecution Bar set forth in Paragraph 8, and may be disclosed onl
20 || to the individuals to whom “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” informatic
21 || may be disclosed, as set forth in Paragraphs 7.3 and 7.4, with the exception of Designated House
22 || Counsel.
23 (c) Any source code produced in discovery shall be made available for inspection, in a
24 || format allowing it to be reasonably reviewed and searched, during normal business hours or at other
25 || mutually agreeable times, at an office of the Producing Party’s counsel or another mutually agreed ur
26 || location. The source code shall be made available for inspection on a secured computer in a secured
27 || room without Internet access or network access to other computers, and the Receiving Party shall not
28 || copy, remove, or otherwise transfer any portion of the source code onto any recordable media or
12
wOAIe 2 CUVEE EOP RD MVOC BPO Ee OY te VE el
1 || recordable device. The Producing Party may visually monitor the activities of the Receiving Party’s
2 || representatives during any source code review, but only to ensure that there is no unauthorized
3 || recording, copying, or transmission of the source code.
4 (d) The Receiving Party may request paper copies of limited portions of source code that :
5 || reasonably necessary for the preparation of court filings, pleadings, expert reports, or other papers, or
6 || for deposition or trial, but shall not request paper copies for the purposes of reviewing the source cod
7 || other than electronically as set forth in paragraph (c) in the first instance. The Producing Party shall
8 || provide all such source code in paper form including bates numbers and the label “HIGHLY
9 || CONFIDENTIAL - SOURCE CODE.” The Producing Party may challenge the amount of source coc
10 || requested in hard copy form pursuant to the dispute resolution procedure and timeframes set forth in
11 ||} Paragraph 6 whereby the Producing Party is the “Challenging Party” and the Receiving Party is the
12 || “Designating Party” for purposes of dispute resolution.
13 (e) The Receiving Party shall maintain a record of any individual who has inspected any
14 || portion of the source code in electronic or paper form. The Receiving Party shall maintain all paper
15 || copies of any printed portions of the source code in a secured, locked area. The Receiving Party shall
16 || not create any electronic or other images of the paper copies and shall not convert any of the
17 || information contained in the paper copies into any electronic format. The Receiving Party shall only
18 || make additional paper copies if such additional copies are (1) necessary to prepare court filings,
19 || pleadings, or other papers (including a testifying expert’s expert report), (2) necessary for deposition,
20 || (3) otherwise necessary for the preparation of its case. Any paper copies used during a deposition sha
21 || be retrieved by the Producing Party at the end of each day and must not be given to or left with a cow
22 || reporter or any other unauthorized individual.
23 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
54 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” or “HIGHLY CONFIDENTIAL — SOURCE
CODE” that Party must:
28
13
wOAOe 2 CUVEE EOIN ED MVOC EPO Ee OY tw VI el
1 (a) promptly notify in writing the Designating Party. Such notification shall include a copy of
2 || the subpoena or court order;
3 (b) promptly notify in writing the party who caused the subpoena or order to issue in the othe!
4 || litigation that some or all of the material covered by the subpoena or order is subject to this Protective
5 || Order. Such notification shall include a copy of this Stipulated Protective Order; and
6 (c) cooperate with respect to all reasonable procedures sought to be pursued by the Designatin
7 || Party whose Protected Material may be affected.
8 If the Designating Party timely seeks a protective order, the Party served with the subpoena o1
9 || court order shall not produce any information designated in this action as “CONFIDENTIAL” or
10 || “HIGHLY CONFIDENTIAL — ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL —
11 |} SOURCE CODE” before a determination by the court from which the subpoena or order issued, unle
12 || the Party has obtained the Designating Party’s permission. The Designating Party shall bear the burde
13 || and expense of seeking protection in that court of its confidential material — and nothing in these
14 || provisions should be construed as authorizing or encouraging a Receiving Party in this action to disol
15 || a lawful directive from another court.
16 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE
7 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 — ATTORNEY'S’ EY]
ONLY” or “HIGHLY CONFIDENTIAL — SOURCE CODE.” Such information produced by Non-
*° Parties in connection with this litigation is protected by the remedies and relief provided by this Orde
Nothing in these provisions should be construed as prohibiting a Non-Party from seeking additional
protections.
23
(b) In the event that a Party is required, by a valid discovery request, to produce a Non-
Party’s confidential information in its possession, and the Party is subject to an agreement with the
Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
1. promptly notify in writing the Requesting Party and the Non-Party that some o
all of the information requested is subject to a confidentiality agreement with a Non-Party;
wOAOe 2 CUVEE EOP ED MVOC BPO Ee OY tv VI cl
1 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order
2 || this litigation, the relevant discovery request(s), and a reasonably specific description of the informati
3 || requested; and
4 3. make the information requested available for inspection by the Non-Party.
5 (c) If the Non-Party fails to object or seek a protective order from this court within 14 day
6 || of receiving the notice and accompanying information, the Receiving Party may produce the Non-
7 || Party’s confidential information responsive to the discovery request. If the Non-Party timely seeks a
8 || protective order, the Receiving Party shall not produce any information in its possession or control th
9 || is subject to the confidentiality agreement with the Non-Party before a determination by the court.
10 || Absent a court order to the contrary, the Non-Party shall bear the burden and expense of seeking
11 || protection in this court of its Protected Material.
12 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
13 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
14 || Material to any person or in any circumstance not authorized under this Stipulated Protective Order, t
15 || Receiving Party must immediately (a) notify in writing the Designating Party of the unauthorized
16 || disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected Material, (c)
17 || inform the person or persons to whom unauthorized disclosures were made of all the terms of this
18 || Order, and (d) request such person or persons to execute the “Acknowledgment and Agreement to Be
19 || Bound” that is attached hereto as Exhibit A.
20 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). 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
attorney-client privilege or work product protection, the parties may incorporate their agreement in th
15
wOAOe 2 CUVEE EOIN ED MVOC PIO Ee OY □□ OV el
1 || stipulated protective order submitted to the court.
2 14. MISCELLANEOUS
3 14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek
4 || modification by the court in the future.
5 14.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order n
6 || Party waives any right it otherwise would have to object to disclosing or producing any information c
7 || item on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any
8 || right to object on any ground to use in evidence of any of the material covered by this Protective Ord
9 14.3. Export Control. Disclosure of Protected Material shall be subject to all applicable laws
10 || and regulations relating to the export of technical data contained in such Protected Material, □□□□□□□□□
11 || the release of such technical data to foreign persons or nationals in the United States or elsewhere. Th
12 || Producing Party shall be responsible for identifying any such controlled technical data, and the
13 || Receiving Party shall take measures necessary to ensure compliance.
14 14.4 Filing Protected Material. Without written permission from the Designating Party or a
15 || court order secured after appropriate notice to all interested persons, a Party may not file in the public
16 || record in this action any Protected Material. A Party that seeks to file under seal any Protected Materi
17 || must comply with Civil Local Rule 141. Protected Material may only be filed under seal pursuant to ;
18 || court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local
19 || Rule 141, a sealing order will issue only upon a request establishing that the Protected Material at iss
20 || is privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a
21 || Receiving Party's request to file Protected Material under seal pursuant to Civil Local Rule 141 is
22 || denied by the court, then the Receiving Party may file the Protected Material in the public record
23 || pursuant to Civil Local Rule 141 unless otherwise instructed by the court.
24 15. FINAL DISPOSITION
25 Within 60 days after the final disposition of this action, as defined in paragraph 4, each
26 || Receiving Party must return all Protected Material to the Producing Party or destroy such material. A
27 || used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
28 || summaries, and any other format reproducing or capturing any of the Protected Material. Whether the
16
WwOAOW 2.40 VV TRIN ULYL bMVVULTICIIt LY PHU VV to Pays 409 Vicv
1 || Protected Material is returned or destroyed, the Receiving Party must submit a written certification to
2 || the Producing Party (and, if not the same person or entity, to the Designating Party) by the 60-day
3 || deadline that (1) identifies (by category, where appropriate) all the Protected Material that was return
4 || or destroyed and (2) affirms that the Receiving Party has not retained any copies, abstracts,
5 || compilations, summaries or any other format reproducing or capturing any of the Protected Material.
6 || Notwithstanding this provision, Counsel are entitled to retain an archival copy of all pleadings, motio
7 || papers, trial, deposition, and hearing transcripts, legal memoranda, correspondence, deposition and tr
8 || exhibits, expert reports, attorney work product, and consultant and expert work product, even if such
9 || materials contain Protected Material. Any such archival copies that contain or constitute Protected
10 ||} Material remain subject to this Protective Order as set forth in Section 4 (DURATION).
11 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
12 || Dated: June 12, 2020 LILLIS PITHA LLP
13 By:___/s/ Martin L. Pitha
Martin L. Pitha
14 Attorneys for Defendant
5 Micron Technology, Inc.
Dated: June 12, 2020 THE VELEZ LAW FIRM, PC
16
By:___/s/ Mark P. Velez
17 Mark Velez
Attorneys for Plaintiff
18 (filed with permission)
19
ORDER
20
> Pursuant to the parties’ stipulation, IT IS SO ORDERED.
IT IS FURTHER ORDERED THAT:
1. Requests to seal documents shall be made by motion before the same judge who will decid
the matter related to that request to seal.
95 2. The designation of documents (including transcripts of testimony) as confidential pursuant
26 this order does not automatically entitle the parties to file such a document with the court under seal.
4 Parties are advised that any request to seal documents in this district is governed by Local Rule 141.
2g brief, Local Rule 141 provides that documents may only be sealed by a written order of the court afte
NT
wOAOe 2 CUVEE TO EOIN ED MVOC BPI Ee OY tv VI CY
1 || specific request to seal has been made. L.R. 141(a). However, a mere request to seal is not enough
2 || under the local rules. In particular, Local Rule 141(b) requires that “[t]he ‘Request to Seal □□□□□□□□
3 || shall set forth the statutory or other authority for sealing, the requested duration, the identity, by name
4 || or category, of persons to be permitted access to the document, and all relevant information.” L.R.
5 || 141(b).
6 3. A request to seal material must normally meet the high threshold of showing that
7 || “compelling reasons” support secrecy; however, where the material is, at most, “tangentially related”
8 || the merits of a case, the request to seal may be granted on a showing of “good cause.” Ctr. for Auto
9 || Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096-1102 (9th Cir. 2016); Kamakana v. City and Cow:
10 || of Honolulu, 447 F.3d 1172, 1178-80 (9th Cir. 2006).
11 4. Nothing in this order shall limit the testimony of parties or non-parties, or the use of certait
12 |} documents, at any court hearing or trial — such determinations will only be made by the court at the
13 || hearing or trial, or upon an appropriate motion.
14 5. With respect to motions regarding any disputes concerning this protective order which the
15 || parties cannot informally resolve, the parties shall follow the procedures outlined in Local Rule 251.
16 || Absent a showing of good cause, the court will not hear discovery disputes on an ex parte basis or on
17 || shortened time.
18 6. The parties may not modify the terms of this Protective Order without the court’s approval
19 || If the parties agree to a potential modification, they shall submit a stipulation and proposed order for |
20 || court’s consideration.
21 7. Pursuant to Local Rule 141.1(f), the court will not retain jurisdiction over enforcement of t
22 || terms of this Protective Order after the action is terminated.
23 8. Any provision in the parties’ stipulation that is in conflict with anything in this order is
24 || hereby DISAPPROVED.
25 || DATED: June 15, 2020 DEBORAH BARNES
UNITED STATES MAGISTRATE JUDGE
27
28
18
wOAOe 2 EOIN ED MVOC BPO Ee OY OU VI ee
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, [print or type full name], of [prin
4 || or type full address], declare under penalty of perjury that I have read in its entirety and understand tt
5 || Stipulated Protective Order that was issued by the United States District Court for the Eastern Distric
6 || of California on [date] in the case of DENNIS ROSSEAU v. MICRON TECHNOLOGY INC. (Case
7 || No. 2:20-CV-00437-TLN-DB). I agree to comply with and to be bound by all the terms of this
8 || Stipulated Protective Order and I understand and acknowledge that failure to so comply could expose
9 || me to sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose
10 || any manner any information or item that is subject to this Stipulated Protective Order to any person o
11 || entity except in strict compliance with the provisions of this Order.
12 I further agree to submit to the jurisdiction of the United States District Court for the Eastern
13 || District of California for the purpose of enforcing the terms of this Stipulated Protective Order, □□□□
14 || such enforcement proceedings occur after termination of this action.
15 I hereby appoint [print or type full name] of
16 [print or type full address and telephone number] as
17 || my California agent for service of process in connection with this action or any proceedings related tc
18 || enforcement of this Stipulated Protective Order.
19
20 || Date:
21 || City and State where sworn and signed:
22 Printed name:
23 [printed name]
24 || Signature:
95 [signature]
26
27
28
19