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jason.lao@haynesboone.com
3 HAYNES AND BOONE, LLP
600 Anton Boulevard, Suite 700
4 Costa Mesa, California 92626
Telephone: (949) 202-3000
5 Facsimile: (949) 202-3001
6 William H. Frankel (IL Bar No. 3127933;
admitted pro hac vice)
7 wfrankel@brinksgilson.com
Tadashi Horie (IL Bar No. 6256941;
8 admitted pro hac vice)
thorie@brinksgilson.com
9 Andrew S. McElligott (IL Bar No. 6317538;
admitted pro hac vice)
10 amcelligott@brinksgilson.com
BRINKS GILSON & LIONE
11 455 N. Cityfront Plaza Drive, Suite 3600
Chicago, Illinois 60611
12 Telephone: (312) 321-4200
Facsimile: (312) 321-4299
13
Jieun Lee (VA Bar No. 92923;
14 admitted pro hac vice)
jlee@brinksgilson.com
15 BRINKS GILSON & LIONE
1775 Pennsylvania Ave. NW, Suite 900
16 Washington, DC 20006
Telephone: (202) 296-8700
17 Facsimile: (202) 296-8701
18 Attorneys for Plaintiff Panasonic Corporation
19
UNITED STATES DISTRICT COURT
20
CENTRAL DISTRICT OF CALIFORNIA
21
22
PANASONIC CORPORATION, Case No.: 8:19-cv-01118-DOC-DFM
23 Hon. Judge David O. Carter
Plaintiff,
24 [Discovery Document: Referred to
vs. Magistrate Judge Douglas F.
25
McCormick]
GETAC TECHNOLOGY
26
CORPORATION and GETAC, INC., STIPULATED PROTECTIVE
27
ORDER
Defendants.
28
1 1. PURPOSES AND LIMITATIONS
2 The parties agree that discovery in this action is likely to involve production
3 of confidential, proprietary or private information for which special protection
4 from public disclosure and from use for any purpose other than pursuing this
5 litigation may be warranted (collectively “Protected Material” as defined below).
6 Accordingly, the parties hereby stipulate to and petition the Court to enter the
7 following Stipulated Protective Order (“Order”). The parties acknowledge that this
8 Order does not confer blanket protections on all disclosures or responses to
9 discovery and that the protection it affords from public disclosure and use extends
10 only to the limited information or items that are entitled to confidential treatment
11 under the applicable legal principles.
12 2. GOOD CAUSE STATEMENT
13 This action is likely to involve trade secrets, customer and pricing lists and
14 other valuable and competitively sensitive research, marketing, development,
15 commercial, financial, technical and/or other proprietary information for which
16 special protection from public disclosure and from use for any purpose other than
17 prosecution of this action is warranted. Such confidential and proprietary materials
18 and information consist of, among other things, confidential business or financial
19 information, information regarding confidential business practices, information
20 regarding proprietary product developments, or other confidential research,
21 development, or commercial information (including information implicating
22 privacy rights), information otherwise generally unavailable to the public, or which
23 may be privileged or otherwise protected from disclosure under state or federal
24 statutes, court rules, case decisions, or common law. Accordingly, to expedite the
25 flow of information, to facilitate the prompt resolution of disputes over
26 confidentiality of discovery materials, to adequately protect information the parties
27 are entitled to keep confidential, to ensure that the parties are permitted reasonably
28 necessary uses of such material in preparation for and in the conduct of trial, to
1 address their handling at the end of the litigation, and serve the ends of justice, a
2 protective order for such information is justified in this matter. It is the intent of
3 the parties that information will not be designated as confidential for tactical
4 reasons in this case and that nothing be so designated without a good faith belief
5 that there is good cause why it should not be part of the public record of this case.
6 Unrestricted or unprotected disclosure of confidential information, such as
7 product specifications, design history files, financial information, sales
8 information, business and marketing strategy, or information concerning business
9 operations would result in prejudice or harm to the producing party by revealing
10 the producing party’s competitive confidential information, which has been
11 developed at the expense of the producing party and which represents valuable
12 tangible and intangible assets of that party. Additionally, privacy interests must be
13 safeguarded. Accordingly, the parties respectfully submit that there is good cause
14 for the entry of this Protective Order.
15 3. ACKNOWLEDGMENT OF UNDER SEAL FILING PROCEDURE
16 The parties further acknowledge, as set forth in Section 14.3, below, that this
17 Stipulated Protective Order does not entitle them to file confidential information
18 under seal; Local Civil Rule 79-5 sets forth the procedures that must be followed
19 and the standards that will be applied when a party seeks permission from the court
20 to file material under seal. There is a strong presumption that the public has a right
21 of access to judicial proceedings and records in civil cases. In connection with
22 non-dispositive motions, good cause must be shown to support a filing under seal.
23 See Kamakana v. City and County of Honolulu, 447 F.3d 1172, 1176 (9th Cir.
24 2006), Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002),
25 Makar-Welbon v. Sony Electrics, Inc., 187 F.R.D. 576, 577 (E.D. Wis. 1999)
26 (even stipulated protective orders require good cause showing), and a specific
27 showing of good cause or compelling reasons with proper evidentiary support and
28 legal justification, must be made with respect to Protected Material that a party
1 seeks to file under seal. The parties’ mere designation of Disclosure or Discovery
2 Material as CONFIDENTIAL does not— without the submission of competent
3 evidence by declaration, establishing that the material sought to be filed under seal
4 qualifies as confidential, privileged, or otherwise protectable—constitute good
5 cause.
6 Further, if a party requests sealing related to a dispositive motion or trial,
7 then compelling reasons, not only good cause, for the sealing must be shown, and
8 the relief sought shall be narrowly tailored to serve the specific interest to be
9 protected. See Pintos v. Pacific Creditors Ass’n., 605 F.3d 665, 677-79 (9th Cir.
10 2010). For each item or type of information, document, or thing sought to be filed
11 or introduced under seal, the party seeking protection must articulate compelling
12 reasons, supported by specific facts and legal justification, for the requested sealing
13 order. Again, competent evidence supporting the application to file documents
14 under seal must be provided by declaration.
15 Any document that is not confidential, privileged, or otherwise protectable
16 in its entirety will not be filed under seal if the confidential portions can be
17 redacted. If documents can be redacted, then a redacted version for public
18 viewing, omitting only the confidential, privileged, or otherwise protectable
19 portions of the document, shall be filed. Any application that seeks to file
20 documents under seal in their entirety should include an explanation of why
21 redaction is not feasible.
22 4. DEFINITIONS
23 The following terms shall have the following meanings in this Order:
24 4.1 Action: Panasonic Corp. v. Getac Technology Corp., et al., Case No.
25 8:19-cv-01118-DOC-DFM (C.D. Cal.) and related cross-action.
26 4.2 Challenging Party: a Party or Non-Party that challenges the
27 designation of information or items under this Order.
28
1 4.3 “Confidential” Information or Items: information (regardless of how
2 generated, stored or maintained) or items not generally known to others, and that
3 (i) the Designating Party would not normally reveal to third parties except in
4 confidence, or has undertaken with others to maintain in confidence; or (ii) are
5 protected by a right to privacy under federal or state law, or any other applicable
6 privilege or right related to confidentiality or privacy. “Confidential” Information
7 or Items may include any form of trade secret or other confidential research,
8 development, or commercial information within the meaning of Fed. R. Civ. P.
9 26(c)(1)(G).
10 4.4 Counsel: Outside Counsel and In-House Counsel (as well as their
11 support staff).
12 4.5 Designating Party: a Party or Non-Party that designates information or
13 items that it produces in disclosures or in responses to discovery as “Confidential”
14 or “Highly Confidential – Outside Attorneys’ Eyes Only.”
15 4.6 Disclosure or Discovery Material: all items or information, regardless
16 of the medium or manner in which it is generated, stored, or maintained (including,
17 among other things, testimony, transcripts, and tangible things), that are produced
18 or generated in disclosures or responses to discovery.
19 4.7 Expert: a person with specialized knowledge or experience in a matter
20 pertinent to the litigation who has been retained by a Party or its counsel to serve
21 as an expert witness or as a consultant in this Action.
22 4.8 “Highly Confidential – Outside Attorneys’ Eyes Only” Information or
23 Items: highly sensitive “Confidential” Information or Items, the disclosure of
24 which to another Party or Non-Party would create a substantial risk of competitive
25 injury to the Designating Party, as defined herein. “Highly Confidential – Outside
26 Attorneys’ Eyes Only” designations are to be used for sensitive technical,
27 financial, competitive, or personnel information, which is not known by third
28 parties and that the Designating Party would not normally reveal to third parties or
1 would require third parties to maintain in confidence by agreements, policies, or
2 procedures.
3 4.9 In-House Counsel: attorneys who are employees, contractors, or
4 consultants of a Party for general purposes in addition to this specific Action. In-
5 House Counsel does not include Outside Counsel or any other outside counsel.
6 4.10 Non-Party: any natural person, partnership, corporation, association,
7 or other legal entity not named as a Party to this Action.
8 4.11 Outside Counsel: attorneys who are not employees of a party to this
9 Action but are retained to represent a party to this Action and have appeared in this
10 Action on behalf of that party or are affiliated with a law firm that has appeared on
11 behalf of that party, and includes support staff.
12 4.12 Party: any party to this Action, including all of its officers, directors,
13 employees, consultants, and Outside Counsel (and their support staffs).
14 4.13 Professional Vendors: persons or entities that provide litigation
15 support services (e.g., photocopying, videotaping, translating, preparing exhibits or
16 demonstrations, trial support, trial consulting services, and organizing, storing, or
17 retrieving data in any form or medium) and their employees and subcontractors.
18 4.14 Protected Material: any Disclosure or Discovery Material that is
19 designated as “Confidential” or “Highly Confidential – Outside Attorneys’ Eyes
20 Only,” including any information copied or extracted from Protected Material, and
21 all copies, excerpts, summaries, or compilations of Protected Material.
22 4.15 Receiving Party: a Party that receives Disclosure or Discovery
23 Material from a Designating Party.
24 5. SCOPE
25 The protections conferred by this Order cover not only Protected Material
26 (as defined above), but also (1) any information copied or extracted from Protected
27 Material; (2) all copies, excerpts, summaries, or compilations of Protected
28
1 Material; and (3) any testimony, conversations, or presentations by Parties or their
2 Counsel that might reveal Protected Material.
3 Any use of Protected Material at trial shall be governed by the orders of the
4 trial judge or a separate agreement between the parties. Except where so stated,
5 this Order does not govern the use of Protected Material at trial.
6 The protections conferred by this Order do not cover: (i) any information
7 that is in the public domain at the time of disclosure to a Receiving Party or
8 becomes part of the public domain after its disclosure to a Receiving Party as a
9 result of publication not involving a violation of this Order, unless the publication
10 was inadvertent; and (ii) any information known to the Receiving Party prior to the
11 disclosure or obtained by the Receiving Party after the disclosure from a Non-Party
12 without restriction as to disclosure, provided such Non-Party has the right to make
13 the disclosure to the Receiving Party.
14 6. DURATION
15 Even after final disposition of this Action, the confidentiality obligations
16 imposed by this Order shall remain in effect until a Designating Party agrees
17 otherwise in writing or a court order otherwise directs. Final disposition shall be
18 deemed to be the later of (1) dismissal of all claims and defenses in this Action,
19 with or without prejudice; and (2) final judgment herein after the completion and
20 exhaustion of all appeals, rehearings, remands, trials, or reviews of this Action,
21 including the time limits for filing any motions or applications for extension of
22 time pursuant to applicable law.
23 7. DESIGNATING PROTECTED MATERIAL
24 7.1 Exercise of Restraint and Care in Designating Material for Protection.
25 Each Party or Non-Party that designates information or items for protection under
26 this Order must take care to limit any such designation to specific material that
27 qualifies under the appropriate standards. The Designating Party must designate
28 for protection only that material, documents, items or oral or written
1 communications that qualify so that other material, documents, items or
2 communications for which protection is not warranted are not swept unjustifiably
3 within the ambit of this Order.
4 Mass, indiscriminate or routinized designations are prohibited. Designations
5 that are shown to be clearly unjustified or that have been made for an improper
6 purpose (e.g., to unnecessarily encumber the case development process or to
7 impose unnecessary expenses and burdens on other parties) may expose the
8 Designating Party to sanctions.
9 If it comes to a Designating Party’s attention that information or items that it
10 designated for protection do not qualify for protection, that Designating Party must
11 promptly notify all other Parties that it is withdrawing the inapplicable designation.
12 7.2 Manner and Timing of Designations. Except as otherwise provided in
13 this Order, or as otherwise stipulated or ordered, Protected Material must be
14 designated before the material is disclosed or produced.
15 Designation in conformity with this Order requires:
16 (a) for information in documentary form (e.g., paper or electronic
17 documents, but excluding transcripts of depositions or other pretrial or trial
18 proceedings), that the Designating Party affix the applicable legend
19 (“Confidential” or “Highly Confidential – Outside Attorneys’ Eyes Only”) on each
20 page.
21 A Party or Non-Party that makes original documents or materials available
22 for inspection need not designate them for protection until after the inspecting
23 Party has indicated which documents it would like copied and produced. During
24 the inspection and before the designation, all of the materials made available for
25 inspection shall be deemed “Highly Confidential – Outside Attorneys’ Eyes Only.”
26 There will be no waiver of confidentiality by the inspection of documents or items
27 before they are copied and designated pursuant to this Order. After the Receiving
28 Party has identified the documents it wants copied and produced, before producing
1 these documents, the Designating Party must affix the applicable legend
2 (“Confidential” or “Highly Confidential – Outside Attorneys’ Eyes Only”) on
3 each.
4 (b) for testimony given in depositions, the Designating Party (or the
5 Party or Non-Party whose confidential information is being disclosed by the
6 deponent) may identify the specific portions of the testimony and exhibits as to
7 which protection is sought at the time of the testimony, alternatively if no
8 protective designation of testimony or any exhibits is made during a deposition the
9 transcript of the deposition and all exhibits and attachments shall be considered
10 “Highly Confidential – Outside Attorneys’ Eyes Only” until the deadline for the
11 errata sheet. During that period, either Party may designate the portions of the
12 transcript and any specific exhibits or attachments that are to be treated as
13 protected by electing the appropriate designation of “Confidential” or “Highly
14 Confidential – Outside Attorneys’ Eyes Only.” If a Party elects to apply any
15 designations as described herein, that Party shall advise the other Parties and the
16 stenographer and/or videographer of the specific portions and/or exhibits and the
17 proposed designations in writing, before the deadline for the errata sheet. If no
18 such designations are made, then the entire transcript and exhibits and attachments
19 will be considered unprotected.
20 (c) for information produced in some form other than documentary
21 and for any other tangible items, that the Designating Party affix in a prominent
22 place on the exterior of the container or containers in which the information is
23 stored the applicable legend (“Confidential” or “Highly Confidential – Outside
24 Attorneys’ Eyes Only”). If only a portion or portions of the information warrants
25 protection, the Designating Party, to the extent practicable, shall identify the
26 protected portion(s).
27 7.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent
28 failure to designate Protected Material does not, standing alone, waive the
1 Designating Party’s right to secure protection under this Order for such material.
2 Upon timely correction of a designation, the Receiving Party must make
3 reasonable efforts to assure that the Protected Material is treated in accordance
4 with the provisions of this Order, including seeking the return or destruction of any
5 material previously disclosed.
6 7.4 Inadvertent Production of Work Product or Privileged Information.
7 Consistent with Federal Rule of Evidence 502, the inadvertent production of any
8 information claimed to be subject to the attorney-client privilege, the work-product
9 doctrine, or any other privilege is not a waiver of that privilege, so long as the
10 holder of the privilege took reasonable steps to prevent disclosure and took
11 reasonable steps to rectify the error upon discovery of such error. Upon reasonably
12 prompt written request of the Designating Party, the Receiving Party shall return or
13 destroy the information and any copies it has within five (5) business days of
14 receiving such written request; must not use or disclose the information until the
15 claim is resolved; must take reasonable steps to retrieve the information if the
16 Receiving Party disclosed it before being notified; and, notwithstanding the
17 foregoing, the Receiving Party’s Outside Counsel may retain, in a secure location,
18 one copy of the information for the sole purpose of challenging the assertion of
19 privilege or work product. If the Receiving Party disagrees with the designation of
20 the information as privileged or otherwise protected after conferring with the
21 Designating Party in good faith, the Receiving Party may move the Court for
22 production of the returned documents or materials. If the Court upholds the
23 Designating Party’s claim, the Receiving Party shall return or destroy the
24 information no later than two (2) business days from the Court’s ruling. If the
25 Receiving Party does not file a motion within fifteen (15) days after conferring
26 with the Designating Party, the Receiving Party shall return or destroy the
27 information.
28
1 7.5 Non-Party Designations. A Non-Party may designate as
2 “Confidential” or “Highly Confidential – Outside Attorneys’ Eyes Only,” pursuant
3 to this Order, any document, material, information or testimony produced by the
4 Non-Party during discovery in this case.
5 7.6 Requests for Identification of Specific Protected Material. To
6 facilitate use of confidential information and compliance with the Court’s rules
7 regarding filing under seal, while still encouraging full and efficient production of
8 documents, the Receiving Party may request the Designating Party identify with
9 particularity (i.e. by pages and the specific material on those pages) the material in
10 documents designated under the Order that it considers to be Protected Material.
11 The Designating Party shall provide a response within 5 business days, which may
12 be extended by agreement of the Parties, that indicates which pages in the
13 document, and which portion of the material on those pages, contains Protected
14 Material. The Designating Party also must clearly identify the protected portion(s)
15 (e.g., by making appropriate markings in the margins).
16 8. CHALLENGING CONFIDENTIALITY DESIGNATIONS
17 8.1. Timing of Challenges. Any Party or Non-Party may challenge a
18 designation of confidentiality at any time that is consistent with the Court’s
19 Scheduling Order.
20 8.2 Meet and Confer. The Party or Non-Party challenging confidentiality
21 designations must serve on the Designating Party a written objection to the
22 designation, describing with particularity the document or information in question
23 and the grounds for objection. The Designating Party must respond in writing to
24 the objection within seven (7) days, stating with particularity the grounds for
25 asserting that the document or information is “Confidential” or “Highly
26 Confidential – Outside Attorneys’ Eyes Only.” Counsel for the Designating and
27 challenging Parties and/or Non-Party, shall meet and confer by phone within five
28 (5) business days of such response. If unable to settle their differences in the meet
1 and confer conference, the challenging Party shall initiate the dispute resolution
2 process under Local Rule 37-1 et seq.
3 8.3 Joint Stipulation. Any challenge submitted to the Court shall be via a
4 joint stipulation pursuant to Local Rule 37-2.
5 8.4 The burden of persuasion in any such challenge proceeding shall be
6 on the Designating Party. Frivolous challenges, and those made for an improper
7 purpose (e.g., to harass or impose unnecessary expenses and burdens on other
8 parties) may expose the Challenging Party to sanctions. Unless the Designating
9 Party has waived or withdrawn the confidentiality designation, all parties shall
10 continue to afford the material in question the level of protection to which it is
11 entitled under the Designating Party’s designation until the Court rules on the
12 challenge.
13 9. ACCESS TO AND USE OF PROTECTED MATERIAL
14 9.1 Basic Principles. A Receiving Party may use Protected Material that
15 is disclosed or produced by another Party or by a Non-Party in connection with this
16 Action only for prosecuting, defending or attempting to settle this Action. Such
17 Protected Material may be disclosed only to the categories of persons and under
18 the conditions described in this Order. Protected Material must be stored and
19 maintained by a Receiving Party at a location and in a secure manner that ensures
20 compliance with this Order. When the Action has been terminated, a Receiving
21 Party must comply with the provisions of section 14 below (FINAL
22 DISPOSITION).
23 9.2 Disclosure of “Confidential” Information or Items. Unless otherwise
24 ordered by the court or permitted in writing by the Designating Party, a Receiving
25 Party may disclose any information or item designated “Confidential” only to:
26 (a) the Receiving Party’s Outside Counsel in this Action, as well as
27 employees of said Outside Counsel to whom it is reasonably necessary to disclose
28 the information for this Action;
1 (b) Up to three (3) officers, directors, and employees (including In-
2 House Counsel) of the Receiving Party to whom disclosure is reasonably necessary
3 for prosecution or defense of this Action, and who execute the “Acknowledgment
4 and Agreement to Be Bound” (Exhibit A);
5 (c) Authorized Experts (as defined in this Order in para. 9.4(b)) of the
6 Receiving Party to whom disclosure is reasonably necessary for this Action and
7 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
8 (d) the Court and its support personnel, jurors, and court reporters in
9 this Action;
10 (e) Professional Vendors to whom disclosure is reasonably necessary
11 for this Action and who have signed the “Acknowledgment and Agreement to Be
12 Bound” (Exhibit A);
13 (f) any designated mediator who is assigned to hear this Action, or
14 who has been selected by the Parties, and his or her supporting personnel;
15 (g) the author or recipient of a document, or the original source of the
16 information or any person who has already seen the document or information
17 (unless that source or person has only seen or had possession of the document or
18 information in violation of this Order or another court order); and
19 (h) any person designated by mutual agreement of the parties who has
20 executed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
21 9.3 Disclosure of “Highly Confidential – Outside Attorneys’ Eyes Only”
22 Information or Items. Unless otherwise ordered by the court or permitted in
23 writing by the Designating Party, a Receiving Party may disclose any information
24 or item designated “Highly Confidential – Outside Attorneys’ Eyes Only” only to:
25 (a) the Receiving Party’s Outside Counsel in this Action, as well as
26 employees of said Outside Counsel to whom it is reasonably necessary to disclose
27 the information for this Action;
28
1 (b) Authorized Experts (as defined in this Order in para. 9.4(b)) of the
2 Receiving Party to whom disclosure is reasonably necessary for this Action and
3 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
4 (c) the Court and its support personnel, jurors, and court reporters in
5 this Action;
6 (d) Professional Vendors to whom disclosure is reasonably necessary
7 for this Action and who have signed the “Acknowledgment and Agreement to Be
8 Bound” (Exhibit A);
9 (e) any designated mediator who is assigned to hear this Action, or
10 who has been selected by the Parties, and his or her supporting personnel;
11 (f) the author or recipient of a document, or the original source of the
12 information or any person who has already seen the document or information
13 (unless that source or person has only seen or had possession of the document or
14 information in violation of this Order or another court order); and
15 (g) any person designated by mutual agreement of the parties who has
16 executed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
17 9.4 Procedures for Approving Disclosure Of “Confidential” or “Highly
18 Confidential – Outside Attorneys’ Eyes Only” Information or Items to Experts.
19 (a) Unless otherwise ordered by the Court or agreed in writing by
20 the Designating Party, a Receiving Party that seeks to disclose to an Expert any
21 information or item that has been designated “Confidential” or “Highly
22 Confidential – Outside Attorneys’ Eyes Only,” first must ensure the Expert has no
23 conflicts with the representation, and make a written request to the Designating
24 Party seeking permission to disclose such information to the Expert. The written
25 request shall include an executed copy of the Expert’s “Acknowledgment and
26 Agreement to Be Bound” (Exhibit A), a current curriculum vitae, and a description
27 of the Expert’s testifying and litigation consulting engagements within the past
28 four (4) years, including an identification of the party on whose behalf the Expert
1 was retained in such engagements. This written request is not required for the
2 Expert’s staff. The Expert, however, shall take full responsibility to ensure that
3 staff members working under his or her supervision comply with the terms of the
4 Protective Order.
5 (b) An Expert that has complied with the requirements of the
6 preceding paragraph shall be deemed an Authorized Expert; unless, within five (5)
7 business days of delivering the request, the Requesting Party receives a written
8 objection from the Designating Party. Any such objection must set forth in detail
9 the grounds on which it is based.
10 (c) A Receiving Party that receives a timely written objection must
11 meet and confer with the Designating Party to try and resolve the matter by
12 agreement. If no agreement is reached, then the Designating Party shall initiate the
13 dispute resolution process under Local Rule 37-1 et seq.
14 10. PROTECTED MATERIAL SUBPOENAED OR ORDERED
15 PRODUCED IN OTHER LITIGATION
16 If a Receiving Party is served with a subpoena or a court order issued in
17 other litigation that compels disclosure of any Protected Material, the Receiving
18 Party must:
19 (a) promptly notify in writing the Designating Party. Such
20 notification shall include a copy of the subpoena or court order;
21 (b) promptly notify in writing the party who caused the subpoena or
22 order to issue in the other litigation that some or all of the material covered by the
23 subpoena or order is subject to this Protective Order. Such notification shall
24 include a copy of this Stipulated Protective Order; and
25 (c) cooperate with respect to all reasonable procedures sought to be
26 pursued by the Designating Party whose Protected Material may be affected. If the
27 Designating Party timely seeks a protective order, the Party served with the
28 subpoena or court order shall not produce any Protected Material before a
1 determination on the protective order by the court from which the subpoena or
2 order issued, unless the Party has obtained the Designating Party’s permission.
3 The Designating Party shall bear the burden and expense of seeking protection in
4 that court of its confidential material and nothing in these provisions should be
5 construed as authorizing or encouraging a Receiving Party in this Action to
6 disobey a lawful directive from another court.
7 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO
8 BE PRODUCED IN THIS LITIGATION
9 (a) The terms of this Order are applicable to information produced by
10 a Non-Party in this Action and designated as “Confidential” or “Highly
11 Confidential – Outside Attorneys’ Eyes Only.” Such information produced by
12 Non-Parties in connection with this litigation is protected by the remedies and
13 relief provided by this Order. Nothing in these provisions should be construed as
14 prohibiting a Non-Party from seeking additional protections.
15 (b) In the event that a Party is required, by a valid discovery request,
16 to produce a Non-Party’s confidential information in its possession, and the Party
17 is subject to an agreement with the Non-Party not to produce the Non-Party’s
18 confidential information, then the Party shall:
19 (1) promptly notify in writing the Requesting Party and the
20 Non- Party that some or all of the information requested is subject to a
21 confidentiality agreement with a Non-Party;
22 (2) promptly provide the Non-Party with a copy of the
23 Stipulated Protective Order in this Action, the relevant discovery request(s), and a
24 reasonably specific description of the information requested; and
25 (3) make the information requested available for inspection by
26 the Non-Party, if requested.
27 (c) If the Non-Party fails to seek a protective order from this court
28 within 14 days of receiving the notice and accompanying information, the
1 Receiving Party may produce the Non-Party’s confidential information responsive
2 to the discovery request. If the Non-Party timely seeks a protective order, the
3 Receiving Party shall not produce any information in its possession or control that
4 is subject to the confidentiality agreement with the Non-Party before a
5 determination on the protective order by the court. Absent a court order to the
6 contrary, the Non-Party shall bear the burden and expense of seeking protection in
7 this court of its Protected Material.
8 12. UNAUTHORIZED DISCLOSURE OF PROTECTED
9 MATERIAL
10 If a Receiving Party learns that, by inadvertence or otherwise, it has
11 disclosed Protected Material to any person or in any circumstance not authorized
12 under this Stipulated Protective Order, the Receiving Party must immediately
13 (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use
14 its best efforts to retrieve all unauthorized copies of the Protected Material,
15 (c) inform the person or persons to whom unauthorized disclosures were made of
16 all the terms of this Order, and (d) request such person or persons to execute the
17 “Acknowledgment an Agreement to Be Bound” attached hereto as Exhibit A.
18 13. MISCELLANEOUS
19 13.1 Right to Further Relief. Nothing in this Order abridges the right of
20 any Party or person to seek its modification by the Court in the future.
21 13.2 Right to Assert Other Objections. By stipulating to the entry of this
22 Order, no Party waives any right it otherwise would have to object to disclosing or
23 producing any information or item. Similarly, no Party waives any right to object
24 on any ground to use in evidence of any of the Protected Material covered by this
25 Order.
26 13.3 Filing Protected Material. A Party that seeks to file under seal any
27 Protected Material must comply with Local Civil Rule 79-5. Protected Material
28 may only be filed under seal pursuant to a court order authorizing the sealing of the
1 specific Protected Material. If a Party’s request to file Protected Material under
2 seal is denied by the court, then the Receiving Party may file the information in the
3 public record unless otherwise instructed by the court.
4 13.4 Right to Advise Client. Nothing in this Order shall restrict Outside
5 Counsel from advising its client with respect to this action. In giving such advice,
6 Outside Counsel may rely upon an examination of Protected Material. Unless
7 otherwise authorized by this Order, Outside Counsel, however, shall not disclose
8 the contents of any Protected Material to its client.
9 13.5 Non-Parties. The terms of this Order shall be applicable to any Non-
10 Party that produces information which is designated by such Non-Party as
11 “Confidential” or “Highly Confidential – Attorneys’ Eyes Only.”
12 13.6 Prosecution Bar. Any person reviewing any of another party’s
13 “Highly Confidential – Attorneys’ Eyes Only” material of a technical nature shall
14 not, for a period commencing upon receipt of such information and ending two
15 years following the conclusion of this case (including any appeals), be involved in
16 the prosecution of design or utility patents or patent applications relating to
17 personal computers, laptop computers, tablets, or “2-in-1s” on behalf of the
18 receiving party or its acquirer, successor, predecessor, or other affiliate, including
19 without limitation the patents asserted in this action and any patent or application
20 claiming priority to or otherwise related to the patents asserted in this action,
21 before any foreign or domestic agency, including the United States Patent and
22 Trademark Office (“the Patent Office”). For purposes of this paragraph,
23 “prosecution” includes directly or indirectly drafting, amending, advising, or
24 otherwise affecting the scope or maintenance of patent claims. For the avoidance
25 of doubt, persons receiving Highly Confidential –Attorneys’ Eyes Only” material
26 are not prohibited from participating in any patent opposition, reissue, inter partes
27 review, post grant review or reexamination proceedings, provided that such
28 persons shall not participate in the drafting or amending of patent claims in any
1 such proceedings. To ensure compliance with the purpose of this provision, each
2 party shall create an “Ethical Wall” between those persons with access to “Highly
3 Confidential – Attorneys’ Eyes Only” material of a technical nature and any
4 individuals who, on behalf of the party or its acquirer, successor, predecessor, or
5 other affiliate, directly or indirectly draft, amend, advise, or otherwise affect the
6 scope or maintenance of patent claims relating to personal computers, laptop
7 computers, tablets, or “2-in-1s,” including without limitation the patents asserted in
8 this action and any patent or application claiming priority to or otherwise related to
9 the patents asserted in this action, before any foreign or domestic agency, including
10 the Patent Office. The parties expressly agree that the prosecution bar set forth
11 herein shall be personal to any attorney who received “Highly Confidential –
12 Attorneys’ Eyes Only” material and shall not be imputed to any other persons or
13 attorneys at the attorney’s law firm.
14 14. FINAL DISPOSITION
15 Unless otherwise ordered or agreed in writing by the Designating Party,
16 within 60 days after the termination of this action, each Receiving Party must
17 return all Protected Material to the Designating Party or destroy such material. As
18 used in this subdivision, “all Protected Material” includes all copies, abstracts,
19 compilations, summaries, and any other format reproducing or capturing any of the
20 Protected Material. Whether the Protected Material is returned or destroyed, the
21 Receiving Party must submit a written certification to the Designating Party by the
22 60-day deadline that (1) identifies (by category, where appropriate) all the
23 Protected Material that was returned or destroyed and (2) affirms that the
24 Receiving Party has not retained any copies, abstracts, compilations, summaries or
25 any other format reproducing or capturing any of the Protected Material.
26 Notwithstanding this provision, Counsel are entitled to retain an archival copy of
27 all pleadings, motion papers, trial, deposition, and hearing transcripts, legal
28 memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
1 || work product, and consultant and expert work product, even if such materials
2 || contain Protected Material. Any such archival copies that contain or constitute
3 || Protected Material remain subject to this Order.
4 15. VIOLATION
5 Any violation of this Order may be punished by appropriate measures
6 || including, without limitation, contempt proceedings and/or monetary sanctions.
7 || STIPULATED BY:
8 || Dated: February 26, 2020 HAYNES AND BOONE, LLP
10 By: _/s/Kenneth G. Parker
Kenneth G. Parker
1] Jason T. Lao
0 HAYNES AND BOONE, LLP
William H. Frankel
13 Tadashi Horie
Andrew S. McElligott
14 Jieun Lee
15 BRINKS GILSON & LIONE
16 Attorneys for Plaintiff Panasonic
Corporation
17
18 || Dated: February 26, 2020 KING & SPALDING LLP
19
20 By: /s/Joseph N. Akrotirianakis
Christopher C. Campbell
21 Joseph N. Akrotirianakis
22 Attorneys for Defendants Getac
73 Technology Corporation & Getac, Inc.
IT IS SO ORDERED.
24
25
DATED: February 28, 2020
26 *
27 Hon. Douglas F. McCormick
28 United States Magistrate Judge
20
DTTT ATED DPATECTIVE OPMREP
1 EXHIBIT A
2 AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
3
4 Panasonic Corp. v. Getac Technology Corp., et al.,
5 No. 8:19-cv-01118-DOC-DFM (C.D. Cal.)
6
7 I ____________________________, declare as follows:
8 1. My address is ______________________________________________.
9
2. I am presently employed as _______________________________ by
10
__________________________________________.
11
3. I have received a copy of the Stipulated Protective Order entered in
12
the above action on ___________________, 2019 (the “Protective Order”). I have
13
carefully read and understand the provisions of the Protective Order, and agree to
14
comply with and to be bound by all of its terms.
15
4. I will hold in confidence, and use any and all Protected Material only
16
to the extent permitted by the Protective Order.
17
5. I will return all Protected Material that comes into my possession,
18
custody, or control to Outside Counsel for the party by whom I am employed or
19
retained.
20
6. I understand that any violation of the Protective Order may subject me
21
to sanctions by the Court, civil liabilities, criminal liabilities, or any combination of
22
the above.
23
24 7. I submit to the jurisdiction of this Court for the purposes of
25 enforcement of the Protective Order.
26 //
27 //
28
//
1 I declare under penalty of perjury under the laws of the United States of
2 America that the foregoing is true and correct.
3 Executed on _________________, ______, at _______________________.
4
5
______________________________
6
7 ______________________________
8 Print Name and Sign
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