The opinion
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8 UNITED STATES DISTRICT COURT
9 FOR THE CENTRAL DISTRICT OF CALIFORNIA
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NANTWORKS, LLC, a Delaware Case No. 2:20-cv-07872 GW (PVCx)
11 limited liability company, and
NANT HOLDINGS IP, LLC, a
12 Delaware limited liability company, STIPULATED PROTECTIVE ORDER
13 Plaintiffs,
14 vs.
15 BANK OF AMERICA
CORPORATION, a Delaware
16 corporation, and BANK OF
AMERICA, N.A., a national banking
17 association,
18 Defendants.
19
1. PURPOSES AND LIMITATIONS
20
21 Disclosure and discovery activity in this action are likely to involve production
22 of confidential, proprietary, or private information for which special protection from
23 public disclosure and from use for any purpose other than prosecuting this litigation
24 may be warranted. Accordingly, the parties hereby stipulate to and petition the court to
25 enter the following Stipulated Protective Order. The parties acknowledge that this Order
26 does not confer blanket protections on all disclosures or responses to discovery and that
27 the protection it affords from public disclosure and use extends only to the limited
28 information or items that are entitled to confidential treatment under the applicable legal
1 principles. The parties further acknowledge, as set forth in subsection 14.3, below, that
2 this Stipulated Protective Order does not entitle them to file confidential information
3 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and
4 the standards that will be applied when a party seeks permission from the court to file
5 material under seal.
6 2. DEFINITIONS
7 2.1 Challenging Party: a Party or Non-Party that challenges the designation of
8 information or items under this Order.
9 2.2 “CONFIDENTIAL” Information or Items: all Discovery Material, and all
10 information contained therein, and other information designated as confidential, to the
11 extent that the Party or non-party designating the Discovery Material as confidential in
12 good faith reasonably believes that such Discovery Material contains non-public
13 information, confidential information, trade secrets, proprietary business information,
14 competitively or commercially sensitive information, nonpublic personal information
15 within the meaning of the Gramm-Leach-Bliley Act (15 U.S.C. § 6801) or similar
16 applicable state or local consumer privacy protective laws and/or “consumer reports”
17 within the meaning of the Fair Credit Reporting Act (15 U.S.C. § 168la) (collectively,
18 the “Acts”), that may be collected or produced in connection with originating,
19 purchasing, or servicing a mortgage loan, or other information, the disclosure of which
20 would, in the good faith judgment of the Producing Party (defined below) be detrimental
21 to the conduct of that Party’s business or the business of any of the Party’s customers
22 or clients.
23 2.3 Counsel (without qualifier): Outside Counsel of Record and House
24 Counsel (as well as their support staff).
25 2.4 Designating Party: a Party or Non-Party that designates information or
26 items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL”
27 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
28 CONFIDENTIAL – SOURCE CODE.”
1 2.5 Discovery Material: all items or information, regardless of the medium or
2 manner in which it is generated, stored, or maintained (including, among other things,
3 testimony, transcripts, and tangible things), that are produced or generated in
4 disclosures or responses to discovery in this matter.
5 2.6 Expert: a person with specialized knowledge or experience in a matter
6 pertinent to the litigation, as well as their immediate support staff, provided that
7 disclosure is only necessary to perform such work, who (1) has been retained by a Party
8 or its counsel to serve as an expert witness or as a consultant in this action, (2) is not a
9 current employee of a Party or of a Party’s competitor,1 and (3) at the time of retention,
10 is not anticipated to become an employee of a Party or of a Party’s competitor.
11
2.7 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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Information or Items: extremely sensitive “Confidential Information or Items,”
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disclosure of which to another Party or Non-Party would create a substantial risk of
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serious harm that could not be avoided by less restrictive means. This designation shall
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signify that (i) at the time of the designation the Discovery Material contains or
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constitutes trade secrets or confidential business or financial information, (ii) there is a
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substantial and imminent risk that absent such designation, its receipt by the Receiving
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Party could cause competitive and/or economic harm to the Producing Party, and (iii)
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such Discovery Material would not otherwise be adequately protected under the
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procedures set forth herein for “Confidential Information.” Nothing in this subsection
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shall preclude counsel from giving advice to his or her client in this litigation that
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includes a general evaluation of Highly Confidential Information, provided that counsel
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shall not disclose the contents of any Highly Confidential Information contrary to the
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terms of this Stipulated Protective Order.
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2.8 “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items:
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extremely sensitive “Confidential Information or Items” representing computer code
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1 The Parties retain the right to object to a past employee of a Party or of a Party’s
28 competitor under subsection 7.5.
1 and associated comments and revision histories, formulas, engineering specifications,
2 or schematics that define or otherwise describe in detail the algorithms or structure of
3 software or hardware designs, disclosure of which to another Party or Non-Party would
4 create a substantial risk of serious harm that could not be avoided by less restrictive
5 means.
6 2.9 House Counsel: two (2) designated attorneys who are employees of a Party
7 to this action. House Counsel does not include Outside Counsel of Record or any other
8 outside counsel. A Party may, for good cause, replace a designated House Counsel
9 attorney.
10 2.10 Non-Party: any natural person, partnership, corporation, association, or
11 other legal entity not named as a Party to this action.
12 2.11 Outside Counsel of Record: attorneys who are not employees of a party to
13 this action but are retained to represent or advise a party to this action and have appeared
14 in this action on behalf of that party or are affiliated with a law firm which has appeared
15 on behalf of that party, as well as staff of such counsel to whom it is reasonably
16 necessary to disclose or allow access to Protected Material for this litigation.
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2.12 Party: any party to this action, including all of its officers, directors,
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employees, consultants, retained experts, and Outside Counsel of Record (and their
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support staffs).
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2.13 Party Representative: two (2) designated representatives of a Party (e.g.,
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officers, directors, and employees) who are required in good faith to provide assistance
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in the conduct of this litigation, including any settlement discussions.
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2.14 Producing Party: a Party or Non-Party that produces Discovery Material in
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this action, including in depositions, document productions or otherwise, or the Party
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or non-party asserting the confidentiality of such material, as the case may be.
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2.15 Professional Vendors: persons or entities that provide litigation support
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services (e.g., photocopying, videotaping, translating, preparing exhibits or
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1 demonstrations, and organizing, storing, or retrieving data in any form or medium) and
2 their employees and subcontractors.
3 2.16 Protected Material: any Discovery Material that is designated as
4 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
5 ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
6 2.17 Receiving Party: a Party that receives Discovery Material from a
7 Producing Party, including in depositions, document productions or otherwise.
8 3. SCOPE
9 3.1 The protections conferred by this Stipulated Protective Order cover not
10 only Protected Material (as defined above), but also (1) any information copied or
11 extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations
12 of Protected Material; and (3) any testimony, conversations, or presentations by Parties
13 or their Counsel that might reveal Protected Material. However, the protections
14 conferred by this Stipulated Protective Order do not cover the following information:
15 (a) any information that is in the public domain at the time of disclosure to a Receiving
16 Party or becomes part of the public domain after its disclosure to a Receiving Party as
17 a result of publication not involving a violation of this Order, including becoming part
18 of the public record through trial or otherwise; and (b) any information known to the
19 Receiving Party prior to the disclosure or obtained by the Receiving Party after the
20 disclosure from a source who obtained the information lawfully and under no obligation
21 of confidentiality to the Designating Party. Any use of Protected Material at trial shall
22 be governed by a separate agreement or order, but this Order shall govern in the absence
23 of such an agreement or order.
24 3.2 Nothing in this Protective Order shall prevent or restrict a Producing
25 Party’s own disclosure or use of its own Protected Material for any purpose, and nothing
26 in this Order shall preclude any Producing Party from showing its Protected Material to
27 an individual who prepared or was involved in the preparation of the Protected Material.
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1 4. DURATION
2 Even after final disposition of this litigation, the confidentiality obligations
3 imposed by this Order shall remain in effect until a Designating Party agrees otherwise
4 in writing or a court order otherwise directs. Final disposition shall be deemed to be the
5 later of (1) dismissal of all claims and defenses in this action, with or without prejudice;
6 and (2) final judgment herein after the completion and exhaustion of all appeals,
7 rehearings, remands, trials, or reviews of this action, including the time limits for filing
8 any motions or applications for extension of time pursuant to applicable law.
9 5. DESIGNATING PROTECTED MATERIAL
10 5.1 Exercise of Restraint and Care in Designating Material for Protection.
11 Each Party or Non-Party that designates information or items for protection under this
12 Order must take care to limit any such designation to specific material that qualifies
13 under the appropriate standards. To the extent it is practical to do so, the Designating
14 Party must designate for protection only those parts of material, documents, items, or
15 oral or written communications that qualify – so that other portions of the material,
16 documents, items, or communications for which protection is not warranted are not
17 swept unjustifiably within the ambit of this Order.
18 Mass, indiscriminate, or routinized designations are prohibited. Designations that
19 are shown to be clearly unjustified or that have been made for an improper purpose
20 (e.g., to unnecessarily encumber or retard the case development process or to impose
21 unnecessary expenses and burdens on other parties) expose the Designating Party to
22 sanctions.
23 If it comes to a Designating Party’s attention that information or items that it
24 designated for protection do not qualify for protection at all or do not qualify for the
25 level of protection initially asserted, that Designating Party must promptly notify all
26 other parties that it is withdrawing the mistaken designation.
27 5.2 Manner and Timing of Designations. Except as otherwise provided in this
28 Order (see, e.g., second paragraph below), or as otherwise stipulated or ordered,
1 Discovery Material that qualifies for protection under this Order must be clearly so
2 designated before the material is disclosed or produced.
3 Any Party or non-party may designate Discovery Material as “confidential” by
4 affixing the notation “CONFIDENTIAL,” or by affixing the notation “HIGHLY
5 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
6 SOURCE CODE” on the document, making a statement on the record of a deposition
7 or hearing as to the portions to be designated as Protected Material, providing written
8 communication to the respective undersigned counsel for the parties hereto, or by other
9 appropriate means.
10 A Producing Party may designate a document as Protected Material after such
11 document has been produced by following the procedures set forth below in subsection
12 5.3. Once designated, any such document shall be treated as Protected Material. A
13 Receiving Party shall not be obligated to challenge the propriety of any designation of
14 Discovery Material under this Order at the time the designation is made, and a failure
15 to do so shall not preclude a subsequent challenge thereto.
16 5.3 Inadvertent Failures to Designate. The unintentional failure by a Producing
17 Party to designate Discovery Material with the correct confidentiality designation, shall
18 not waive any such designation. If the Producing Party notifies all Receiving Parties of
19 an unintentional failure to designate materials as confidential, the Producing Party shall
20 reproduce the Protected Material with the correct confidentiality designation within ten
21 (10) days upon its notification to the Receiving Party. Upon receiving the Protected
22 Material with the correct confidentiality designation, the Receiving Parties shall destroy
23 all Discovery Material that was identified as incorrectly designated. A Receiving Party
24 shall not be in breach of this Order for any use of such unintentionally-non-designated
25 or inadvertently mis-designated Discovery Material before the Receiving Party receives
26 notice of the inadvertent failure to designate. Once a Receiving Party has received
27 notice of the unintentional failure to designate pursuant to this provision, the Receiving
28 Party shall treat such Discovery Material at the appropriately designated level pursuant
1 to the terms of this Stipulated Protective Order.
2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS
3 6.1 Timing of Challenges. Any Party or Non-Party may challenge a
4 designation of confidentiality at any time. Unless a prompt challenge to a Designating
5 Party’s confidentiality designation is necessary to avoid foreseeable, substantial
6 unfairness, unnecessary economic burdens, or a significant disruption or delay of the
7 litigation, a Party does not waive its right to challenge a confidentiality designation by
8 electing not to mount a challenge promptly after the original designation is disclosed.
9 6.2 Meet and Confer. The Challenging Party shall initiate the dispute
10 resolution process by providing written notice of each designation it is challenging and
11 describing the basis for each challenge. To avoid ambiguity as to whether a challenge
12 has been made, the written notice must recite that the challenge to confidentiality is
13 being made in accordance with this specific subsection of the Protective Order. To the
14 extent the Designating Party does not agree in writing to revise or remove the
15 challenged designations as requested, the parties shall attempt to resolve each challenge
16 in good faith and must begin the process by conferring directly (in voice-to-voice
17 dialogue; other forms of communication are not sufficient) within 14 days of the date
18 of service of notice. In conferring, the Challenging Party must explain the basis for its
19 belief that the confidentiality designation was not proper and must give the Designating
20 Party an opportunity to review the designated material, to reconsider the circumstances,
21 and, if no change in designation is offered, to explain the basis for the chosen
22 designation. A Challenging Party may proceed to the next stage of the challenge process
23 only if it has engaged in this meet and confer process first or establishes that the
24 Designating Party is unwilling to participate in the meet and confer process in a timely
25 manner.
26 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without
27 court intervention, the Challenging Party may file and serve a motion to challenge
28 confidentiality under Civil Local Rule 7 (and in compliance with Civil Local Rule 79-
1 5, if applicable). The Challenging Party may file the motion at any time if there is good
2 cause for doing so, including a challenge to the designation of a deposition transcript or
3 any portions thereof. Each such motion must be accompanied by a competent
4 declaration affirming that the movant has complied with the meet and confer
5 requirements imposed in subsection 6.2.
6 The burden of persuasion in any such challenge proceeding shall be on the
7 Designating Party. Frivolous challenges and those made for an improper purpose (e.g.,
8 to harass or impose unnecessary expenses and burdens on other parties) may expose the
9 Challenging Party to sanctions. Unless the Designating Party has waived the
10 confidentiality designation by failing to oppose a motion to challenge confidentiality as
11 described above, all parties shall continue to afford the material in question the level of
12 protection to which it is entitled under the Producing Party’s designation until the court
13 rules on the challenge.
14 7. ACCESS TO AND USE OF PROTECTED MATERIAL
15 7.1 Basic Principles. A Receiving Party may use Protected Material that is
16 disclosed or produced by another Party or by a Non-Party in connection with this case
17 only for prosecuting, defending, or attempting to settle this litigation. Such Protected
18 Material may be disclosed only to the categories of persons and under the conditions
19 described in this Order. When the litigation has been terminated, a Receiving Party must
20 comply with the provisions of Section 16 below (FINAL DISPOSITION).
21 Protected Material must be stored and maintained by a Receiving Party at a
22 location in the United States and in a secure manner that ensures that access is limited
23 to the persons authorized under this Order. To ensure compliance with applicable
24 United States Export Administration Regulations, Protected Material may not be
25 exported outside the United States or released to any foreign national (even if within
26 the United States).
27
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1 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise
2 ordered by the court or permitted in writing by the Designating Party, a Receiving Party
3 may disclose any information or item designated “CONFIDENTIAL” only to:
4 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
5 employees of said Outside Counsel of Record to whom it is reasonably necessary to
6 disclose the information for this litigation;
7 (b) Party Representatives and House Counsel of the Receiving Party who have
8 signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) and who are
9 identified by the Receiving Party to the Designating Party by name and job title;
10 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure
11 is reasonably necessary for this litigation and who have signed the “Acknowledgment
12 and Agreement to Be Bound” (Exhibit A);
13 (d) the court and its personnel;
14 (e) court reporters and their staff, professional jury or trial consultants, and
15 Professional Vendors to whom disclosure is reasonably necessary for this litigation and
16 who are informed of the terms of this Order and agree to be bound by this Order;
17 (f) the author or recipient of a document containing the information or a custodian
18 or other person who otherwise possessed or knew the information;
19 (g) while testifying at deposition, trial, or any other Court hearing in this action
20 only: (i) any current officer, director or employee of the Producing Party or original
21 source of the information; (ii) any former officer, director or employee of the Producing
22 Party or original source of the information if the Protected Material pertains to the
23 period or periods of his or her employment; (iii) any person designated by the Producing
24 Party to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil
25 Procedure; and/or (iv) any person who otherwise qualifies under any other provision in
26 subsection 7.2;2
27 2 To the extent that subsections (f)-(h) do not apply, a Receiving Party may make a
request to a Designating Party to disclose “CONFIDENTIAL” information to a witness
28 during their deposition where, prior to the deposition of the witness, the Receiving Party
1 (h) any person with the prior written consent of the Designating Party; and
2 (i) any mediator who is assigned to hear this matter, including his or her staff,
3 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
4 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
5 ONLY” Information or Items. Unless otherwise ordered by the court or permitted in
6 writing by the Designating Party, a Receiving Party may disclose any information or
7 item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only
8 to:
9 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
10 employees of said Outside Counsel of Record to whom it is reasonably necessary to
11 disclose the information for this litigation;
12 (b) House Counsel of the Receiving Party, provided that such House Counsel
13 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), are not
14 involved in competitive decision-making for the Receiving Party with regard to the
15 subject matter of this litigation, as defined by U.S. Steel v. United States, 730 F.2d 1465,
16 1468 n.3 (Fed. Cir. 1984), and are identified by the Receiving Party to the Designating
17 Party by name and job title, with such disclosure being limited to materials filed under
18 seal in this litigation;
19 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary
20 for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be
21 Bound” (Exhibit A), and (3) as to whom the procedures set forth in subsection 7.5(a)(1),
22 below, have been followed;
23 (d) the court and its personnel;
24 (e) court reporters and their staff, professional jury or trial consultants, and
25 Professional Vendors to whom disclosure is reasonably necessary for this litigation and
26 makes a written request to the Designating Party showing that disclosure of such
“CONFIDENTIAL” information is reasonably necessary to examine the witness and
27 providing a signed “Acknowledgment and Agreement to Be Bound” (Exhibit A) from
the witness. The Designating Party shall not unreasonably deny the Receiving Party’s
28 request.
1 who are informed of the terms of this Order and agree to be bound by this Order;
2 (f) the author or recipient of a document containing the information or a custodian
3 or other person who otherwise possessed or knew the information; and
4 (g) while testifying at deposition, trial, or any other Court hearing in this action
5 only: (i) any current officer, director or employee of the Producing Party or original
6 source of the information; (ii) any former officer, director or employee of the Producing
7 Party or original source of the information if the Protected Material pertains to the
8 period or periods of his or her employment; (iii) any person designated by the Producing
9 Party to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil
10 Procedure; and/or (iv) any person who otherwise qualifies under any other provision in
11 subsection 7.3;3
12 (h) any person with the prior written consent of the Designating Party; and
13 (i) any mediator who is assigned to hear this matter, including his or her staff,
14 and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A).
15 7.4 Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE”
16 Information or Items. Unless otherwise ordered by the court or permitted in writing by
17 the Designating Party, a Receiving Party may disclose any information or item
18 designated “HIGHLY CONFIDENTIAL – SOURCE CODE” only to:
19 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
20 employees of said Outside Counsel of Record to whom it is reasonably necessary to
21 disclose the information for this litigation;
22 (b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary
23 for this litigation, (2) who have signed the “Acknowledgment and Agreement to Be
24 3 To the extent that subsections (f)-(h) do not apply, a Receiving Party may make a
request to a Designating Party to disclose “HIGHLY CONFIDENTIAL –
25 ATTORNEYS’ EYES ONLY” information to a witness during their deposition where,
prior to the deposition of the witness, the Receiving Party makes a written request to
26 the Designating Party showing that disclosure of such “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” information is reasonably necessary to examine the
27 witness and providing a signed “Acknowledgment and Agreement to Be Bound”
(Exhibit A) from the witness. The Designating Party shall not unreasonably deny the
28 Receiving Party’s request.
1 Bound” (Exhibit A), and (3) as to whom the procedures set forth in subsection 7.5(a)(1),
2 below, have been followed;
3 (c) the court and its personnel;
4 (d) court reporters and their staff, professional jury or trial consultants, and
5 Professional Vendors to whom disclosure is reasonably necessary for this litigation and
6 who are informed of the terms of this Order and agree to be bound by this Order;
7 (e) the author or recipient of a document containing the information or a
8 custodian or other person who otherwise possessed or knew the information; and
9 (f) any person with the prior written consent of the Designating Party.
10 7.5 Procedures for Approving or Objecting to Disclosure of “HIGHLY
11 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
12 SOURCE CODE” Information or Items to Experts.
13 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the
14 Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order)
15 any information or item that has been designated “HIGHLY CONFIDENTIAL –
16 ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
17 pursuant to either subsection 7.3(c) or 7.4(b) first must make a written request to the
18 Designating Party4 that (1) sets forth the full name of the Expert and the city and state
19 of his or her primary residence, (2) attaches a copy of the Expert’s current resume, (3)
20 identifies the Expert’s current employer(s), (4) identifies each person or entity from
21 whom the Expert has received compensation or funding for work in his or her areas of
22 expertise or to whom the expert has provided professional services, including in
23
24 4 For a Designating Party that is a Non-Party, experts previously disclosed and
approved prior to the Non-Party’s production of any information or item that has been
25 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
“HIGHLY CONFIDENTIAL – SOURCE CODE” need not be disclosed to said Non-
26 Party unless such Non-Party requests such information prior to the production of any
Protected Material. Moreover, unless otherwise agreed by the Non-Party and the Party
27 seeking to make the disclosure, subsequently disclosed experts need not be disclosed to
the Non-Party before that Non-Party’s Protected Material may be disclosed thereto.
28
1 connection with a litigation, at any time during the preceding five years,5 and (5)
2 identifies (by name and number of the case, filing date, and location of court) any
3 litigation in connection with which the Expert has offered expert testimony, including
4 through a declaration, report, or testimony at a deposition or trial, during the preceding
5 five years.
6 (b) A Party that makes a request and provides the information specified in the
7 preceding respective subsections may disclose the subject Protected Material to the
8 identified Expert unless, within 7 days of delivering the request, the Party receives a
9 written objection from the Designating Party. Any such objection must set forth in detail
10 the grounds on which it is based.
11 (c) A Party that receives a timely written objection must meet and confer with the
12 Designating Party (through direct voice to voice dialogue) to try to resolve the matter
13 by agreement within seven days of the written objection. If no agreement is reached,
14 the Party seeking to make the disclosure to the Expert may file a motion as provided in
15 Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) seeking
16 permission from the court to do so. Any such motion must describe the circumstances
17 with specificity, set forth in detail the reasons why the disclosure to the Expert is
18 reasonably necessary, assess the risk of harm that the disclosure would entail, and
19 suggest any additional means that could be used to reduce that risk. In addition, any
20 such motion must be accompanied by a competent declaration describing the parties’
21 efforts to resolve the matter by agreement (i.e., the extent and the content of the meet
22 and confer discussions) and setting forth the reasons advanced by the Designating Party
23 for its refusal to approve the disclosure.
24 In any such proceeding, the Party opposing disclosure to the Expert shall bear the
25 burden of proving that the risk of harm that the disclosure would entail (under the
26 5 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
27 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
28 Designating Party regarding any such engagement.
1 safeguards proposed) outweighs the Receiving Party’s need to disclose the Protected
2 Material to its Expert.
3 7.6 Designation of Deposition Transcripts
4 All depositions and transcripts of any testimony given at a deposition shall
5 presumptively be treated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
6 ONLY” and subject to this Stipulated Protective Order during the deposition and for a
7 period of thirty (30) days after a final transcript of said deposition is received by counsel
8 for each of the parties. At or before the end of such thirty-day period, the deposition,
9 or pages thereof, may be designated as Protected Material by any Party. If any
10 deposition or pretrial testimony is designated as Protected Material, the Producing Party
11 shall direct the court reporter to affix an appropriate confidentiality legend to the
12 deposition transcript’s first page and all portions of the transcript containing Protected
13 Material. Any Party may challenge the designation by following the procedure set forth
14 in Section 6.
15 7.7 Designation at Hearings or Trial
16 In the event that a Party seeks to use Protected Material during any hearing or
17 trial before the Court, including through argument or the presentation of evidence, such
18 information shall not lose its status as Protected Material through such use. Counsel
19 shall confer on such procedures that are necessary to protect the confidentiality of any
20 documents, information, and transcripts used in the course of any court proceedings.
21 The Receiving Party may use such Protected Material only after taking such steps as
22 agreed to by the Parties or as the Court, upon motion of the Producing Party, shall deem
23 necessary to preserve the confidentiality of such Protected Material.
24 8. PROSECUTION BAR
25 Absent written consent from the Producing Party, any individual who receives
26 access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
27 CONFIDENTIAL – SOURCE CODE” information shall not be involved in the
28 prosecution of patents or patent applications relating to the design, operation, or
1 functionality of any systems, devices, or methods concerning image analysis, object
2 recognition, or pattern recognition, including mobile check deposit, including without
3 limitation the patents asserted in this action and any patent or application claiming
4 priority to or otherwise related to the patents asserted in this action, before any foreign
5 or domestic agency, including the United States Patent and Trademark Office (“the
6 Patent Office”). For purposes of Section 8, “prosecution” includes directly or indirectly
7 drafting, amending, advising, or otherwise affecting the scope or maintenance of patent
8 claims. To avoid any doubt, “prosecution” as used in this section does not include
9 representing a party challenging a patent (including counsel for the Receiving Party) or
10 a party defending the patent (including counsel for the Receiving Party) before a
11 domestic or foreign agency (including, but not limited to, a reissue proceeding, ex parte
12 reexamination or inter partes review), except that counsel for the party defending the
13 patent, such as the patent owner (including counsel for the Receiving Party), may not
14 participate, directly or indirectly, in drafting or advising on any amendments or
15 alterations to any patent claim(s) in such proceedings. This Prosecution Bar shall begin
16 when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
17 “HIGHLY CONFIDENTIAL – SOURCE CODE” information is first received by the
18 affected individual and shall end two (2) years after final termination of this action.
19
9. SOURCE CODE
20
(a) Software and in particular human-readable programming language (i.e.,
21
plain text) in the form of source code or assembly code (including excerpts); documents
22
that describe or include source code; documents, formulas, technical specifications, or
23
schematics that include or describe algorithms used in computer source code; and
24
comments, revisions, change histories, or logs concerning source code are collectively
25
referred to herein as “source code.” The defined term “source code,” as used herein,
26
shall not include publicly available documents (including, for example, publicly
27
available documents obtained by a party from the Patent Office or Copyright Office).
28
1 To the extent production of source code becomes necessary in this case, a Producing
2 Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE”
3 if it comprises or includes confidential, proprietary or trade secret source code.
4 (b) Any source code produced in discovery shall be made available for
5 inspection, in a format allowing it to be reasonably reviewed and searched, during
6 normal business hours or at other mutually agreeable times, at an office of the Producing
7 Party’s counsel or another mutually agreed upon location.6 Prior to the first inspection
8 of any requested source code, the Receiving Party shall provide seven (7) days written
9 notice of the source code that it wishes to inspect. The Receiving Party shall provide
10 three (3) days’ notice prior to any additional inspections. The source code shall be made
11 available for inspection on a secured computer in a secured room without Internet access
12 or network access to other computers, and the Receiving Party shall not copy, remove,
13 or otherwise transfer any portion of the source code onto any recordable media or
14 recordable device.
15 (c) The Receiving Party, at its own expense, may request that the Producing
16 Party install one or more software tools on the source code computer to analyze and
17 perform searches of the source code, provided that such software tools are necessary to
18 perform the review of the source code, consistent with all of the protections herein. The
19 receiving party must provide the producing party with appropriate access and/or
20 licenses to such software tools at least four (4) business days in advance of the date
21 upon which the Receiving Party wishes to have the software available for use on the
22 source code computer. Timely requests for the installation of such software will not be
23
6 To the extent that travel is hindered or impossible during the COVID-19 crisis, the
24 parties will work collaboratively to identify and implement temporary procedures that
will enable the Receiving Party’s Outside Counsel and Experts to review source code.
25 For example, the Producing Party may make available the source code for inspection at
a location within the same state as one of the Receiving Party’s Outside Counsel or
26 Expert, which will allow Outside Counsel or Expert to travel to the location in his or
her own private vehicle. Further, the Producing Party will sanitize the secured room
27 and source code computer prior to any inspection. Outside Counsel or Expert for the
Receiving Party must wear a mask and maintain social distancing for the entire duration
28 of the inspection.
1 denied, so long as the requested search software is compatible with the operating system
2 and other software necessary to make the source code available for inspection installed
3 on a source code computer and does not side-step any of the security features enabled
4 on the source code computer or otherwise compromise the security of the source code.
5 The receiving party shall not erase, load, install, or otherwise modify any program on
6 the source code computer without first submitting a written request and obtaining the
7 producing party’s agreement to the request.
8
(d) The Receiving Party’s Outside Counsel of Record and/or Experts shall be
9
entitled to take only handwritten notes relating to the source code. Such handwritten
10
notes may not copy the source code to the notes. No computers, cell phones, or other
11
electronic devices (including PDAs, tablets, wearables, cameras, storage, or peripheral
12
equipment) may be brought into secured room. The Producing Party may visually
13
monitor the activities of the Receiving Party’s representatives during any source code
14
review, but only to ensure that there is no unauthorized recording, copying, or
15
transmission of the source code. Any notes taken pursuant to this subsection (d) by
16
Outside Counsel of Record and any notes taken pursuant to this subsection (d) by
17
Experts shall not be discoverable unless specifically relied upon by the Expert in
18
forming an opinion and such notes shall be treated as “HIGHLY CONFIDENTIAL –
19
ATTORNEYS’ EYES ONLY” information.
20
(e) The Receiving Party may request paper copies of limited portions of source
21
code that are reasonably necessary for the preparation of court filings, pleadings, expert
22
reports, or other papers, or for deposition or trial, but shall not request paper copies for
23
the purposes of reviewing the source code other than electronically as set forth in
24
subsection (b) in the first instance. The Producing Party shall provide all such source
25
code in paper form including bates numbers and the label “HIGHLY CONFIDENTIAL
26
- SOURCE CODE.” The Receiving Party may not request any continuous block of
27
source code that results in more than fifteen (15) consecutive printed pages absent good
28
1 cause. (For example, good cause may exist where printing a single source code file
2 would span more than 15 pages.) In any event, only those limited portions of source
3 code reasonably necessary to prepare for filings, expert reports, deposition, or trial in
4 this case may be requested to be printed. Any source code that is printed will be on 8.5"
5 x 11" paper with 1" margins with a font no smaller than Courier 12 pt. The Producing
6 Party may challenge the amount of source code requested in hard copy form pursuant
7 to the dispute resolution procedure and timeframes set forth in Section 6 whereby the
8 Producing Party is the “Challenging Party” and the Receiving Party is the “Designating
9 Party” for purposes of dispute resolution. To the extent not challenged, within four (4)
10 business days of a request from the Receiving Party the Producing Party will provide
11 three (3) identical copies of the printed source code to the Receiving Party’s Outside
12 Counsel of Record. The Producing Party may watermark the copies if they so desire,
13 but such watermarking may not impede the ability of the Receiving Party to use the
14 copies of the printed source code. The Producing Party shall keep the originals of the
15 printed source code.
16
(f) The Receiving Party shall maintain a record of any individual who has
17
inspected any portion of the source code in electronic or paper form. The Producing
18
Party shall be entitled to a copy of the record upon request. The Receiving Party shall
19
maintain all paper copies of any printed portions of the source code in a secured, locked
20
area. The Receiving Party shall not create any electronic or other images of the paper
21
copies and shall not convert any of the information contained in the paper copies into
22
any electronic format. The Receiving Party shall only make additional paper copies if
23
such additional copies are (1) necessary to prepare court filings, pleadings, or other
24
papers (including a testifying expert’s expert report), (2) necessary for deposition, or
25
(3) otherwise necessary for the preparation of its case, and shall keep a record of all
26
copies of the source code that are provided by the Receiving Party to any person
27
approved to access source code under this Stipulated Protective Order. Any paper copies
28
1 used during a deposition shall be retrieved by the Producing Party at the end of each
2 day and must not be given to or left with a court reporter or any other unauthorized
3 individual.
4 (g) Except as may be necessary to attach to court filings or as necessary for use
5 at trial, at hearings or at depositions, the Receiving Party may not make additional
6 copies of any portions of the source code printed pursuant to the subsections above.
7
(h) The Parties may include excerpts of source code in a pleading, exhibit, expert
8
report, discovery document, deposition transcript, other Court document, or any drafts
9
of these documents (“SOURCE CODE DOCUMENTS”). The Receiving Party shall
10
only include such excerpts as are reasonably necessary for the purposes for which such
11
part of the source code is used. To the extent portions of Source Code are quoted in a
12
SOURCE CODE DOCUMENT, either (1) the entire document will be stamped
13
“HIGHLY CONFIDENTIAL - SOURCE CODE” – Subject to Protective Order” or (2)
14
those pages containing quoted source code will be separately bound and stamped as
15
“HIGHLY CONFIDENTIAL - SOURCE CODE” – Subject to Protective Order”. All
16
SOURCE CODE DOCUMENTS shall be filed under seal pursuant to subsection 14.3
17
and Civil Local Rule 79-5.
18
(i) All paper copies of source code and all notes or memos containing source
19
code and notes taken during a source code inspection shall be securely destroyed if they
20
are no longer necessary in the litigation (e.g., extra copies at the conclusion of a
21
deposition) or the litigation has concluded. Copies of source code that are marked as
22
deposition exhibits shall not be provided to the Court Reporter or attached to deposition
23
transcripts; rather, the deposition record will identify the exhibit by its production
24
numbers.
25
(j) Any printed pages of source code, and any documents or things reflecting or
26
including source code that have been designated by the Producing Party as “HIGHLY
27
CONFIDENTIAL - SOURCE CODE” may not be digitally imaged, e-mailed,
28
1 transmitted, uploaded, downloaded, photographed, or otherwise electronically
2 duplicated, except for good cause and for the purpose of creating documents or drafts
3 of documents which, pursuant to the Court’s rules, must be filed or served electronically
4 or otherwise as necessary for the preparation of or use in Court proceeding(s),
5 deposition(s), and expert reports, and is at all times subject to the restrictions set forth
6 herein. Images or copies of source code shall not be included in correspondence
7 between the Parties (references to production numbers shall be used instead) and shall
8 be omitted from pleadings and other papers except to the extent permitted herein. The
9 Receiving Party may not create electronic images, or any other images, of the source
10 code for use on a computer (e.g., may not scan the prints of the source code to a PDF,
11 or photograph the prints of the source code). The general prohibition against electronic
12 duplication and transmission of source code does not apply to source code that is
13 produced in electronic form.
14
10. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN
15
OTHER LITIGATION
16
(a) If a Receiving Party is served with a subpoena, document demand or other
17
request under applicable federal or state law (collectively, a “Demand”), and the
18
Discovery Material sought by the Demand was produced or designated as Protected
19
Material by someone other than the Receiving Party, the Receiving Party shall give
20
written notice by electronic transmission, within five (5) business days of receipt of
21
such Demand, to the Producing Party who produced or designated the material as
22
Protected Material.
23
(b) The Receiving Party shall not produce any of the Producing Party’s
24
Protected Material, unless otherwise Court-ordered or required by law, for a period of
25
at least ten (10) business days after providing the required notice to the Producing Party.
26
(c) If, within ten (10) business days of receiving such notice, the Producing
27
Party gives notice to the Receiving Party subject to the Demand that the Producing Party
28
1 opposes production of its Protected Material, the Receiving Party shall object to the
2 Demand, citing this Stipulated Protective Order, and shall not thereafter produce such
3 Protected Material, except as Court-ordered or required by law. The Producing Party
4 shall be responsible for pursuing any objection to the requested production, including
5 moving to quash the subpoena and/or seeking a protective order. The Receiving Party
6 agrees to cooperate with the Producing Party in resisting the Demand.
7 (d) Nothing herein shall be construed as requiring the Receiving Party or
8 anyone else covered by this Stipulated Protective Order to challenge or appeal any order
9 requiring production of Protected Material covered by this Stipulated Protective Order,
10 or to subject itself to any penalties for non-compliance with any legal process or order
11 for failure to comply with a Demand, or to seek any relief from this Court in connection
12 with obligations imposed by a Demand.
13 (e) In the event that Protected Material is produced to a non-party to this
14 Stipulated Protective Order in response to a Demand, such Discovery Material shall
15 continue to be treated in accordance with the designation by the parties to this Stipulated
16 Protective Order.
17 11. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED
18 IN THIS LITIGATION
19 (a) The terms of this Order are applicable to information produced by a Non-
20 Party in this action and designated as “CONFIDENTIAL” or “HIGHLY
21 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
22 SOURCE CODE.” Such information produced by Non-Parties in connection with this
23 litigation is protected by the remedies and relief provided by this Order. Nothing in
24 these provisions should be construed as prohibiting a Non-Party from seeking additional
25 protections.
26 (b) In the event that a Party is required, by a valid discovery request, to
27 produce a Non-Party’s confidential information in its possession, and the Party is
28 subject to an agreement with the Non-Party not to produce the Non-Party’s confidential
1 information, then the Party shall:
2 1. promptly notify in writing the Requesting Party and the Non-Party that
3 some or all of the information requested is subject to a confidentiality agreement with
4 a Non-Party;
5 2. promptly provide the Non-Party with a copy of the Stipulated Protective
6 Order in this litigation, the relevant discovery request(s), and a reasonably specific
7 description of the information requested; and
8 3. make the information requested available for inspection by the Non-Party.
9 (c) If the Non-Party fails to object or seek a protective order from this court
10 within 14 days of receiving the notice and accompanying information, the Receiving
11 Party may produce the Non-Party’s confidential information responsive to the discovery
12 request. If the Non-Party timely seeks a protective order, the Receiving Party shall not
13 produce any information in its possession or control that is subject to the confidentiality
14 agreement with the Non-Party before a determination by the court.7 Absent a court order
15 to the contrary, the Non-Party shall bear the burden and expense of seeking protection
16 in this court of its Protected Material.
17 12. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
18 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed
19 Protected Material to any person or in any circumstance not authorized under this
20 Stipulated Protective Order, the Receiving Party must immediately (a) notify in writing
21 the Designating Party of the unauthorized disclosures, (b) use its best efforts to retrieve
22 all unauthorized copies of the Protected Material, (c) inform the person or persons to
23 whom unauthorized disclosures were made of all the terms of this Order, and (d) request
24 such person or persons to execute the “Acknowledgment and Agreement to Be Bound”
25 that is attached hereto as Exhibit A.
26
27 7 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
28 protect its confidentiality interests in this court.
1 13. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE
2 PROTECTED MATERIAL
3 (a) A Producing Party’s disclosure of information or documents that are protected
4 from disclosure by the attorney-client privilege, the attorney work product doctrine, the
5 Bank Examiner Privilege or any other privilege, immunity, or protections from
6 disclosure (“Privileged Documents”), shall not constitute a waiver with respect to such
7 Privileged Documents or generally of such privilege, immunity or protection, provided
8 that the Producing Party notifies the Receiving Party, in writing, of the production after
9 its discovery of the same. The Producing Party must specifically and individually
10 identify the Privileged Documents which it unintentionally produced to the Receiving
11 Party. Upon written notification of inadvertent production of privileged materials
12 (hereafter referred to as “Identified Materials”) by the Producing Party, the Receiving
13 Party shall return, destroy, or delete the Identified Materials as requested by the
14 Producing Party. If the Receiving Party has any notes or other work product reflecting
15 the contents of the Identified Materials, the Receiving Party will not review or use those
16 materials unless a court later designates the Identified Materials as not privileged or
17 protected.
18 (1) The Identified Materials shall be deleted from any systems used to
19 house the documents, including document review databases, e-rooms and any other
20 location that stores the documents. The Receiving Party may make no use of the
21 Identified Materials during any aspect of this matter or any other matter, including in
22 depositions or at trial, unless the documents are later designated by a court as not
23 privileged or protected.
24 (2) The contents of the Identified Materials shall not be disclosed to anyone
25 who was not already aware of the contents of them before the notice was made.
26 (b) If a Receiving Party receives Discovery Material that, on its face, appears to
27 be a Privileged Document, and does not know it to have been intentionally produced or
28 made available, the Receiving Party must refrain from examining the materials any
1 more than is essential to ascertain if the materials are privileged. The Receiving Party
2 shall immediately notify the Producing Party in writing that the Receiving Party
3 possesses material that appears to be privileged or otherwise protected from disclosure.
4 In the event alleged Privileged Documents were unintentionally disclosed, the
5 Producing Party may provide notice to the other parties advising of the disclosure and
6 requesting return or destruction of the Privileged Documents pursuant to this
7 subsection. The party returning the Identified Materials may move the Court for an
8 order compelling production of some or all of the material returned or destroyed, but
9 the basis for such a motion may not be the fact or circumstances of the production. This
10 stipulated agreement set forth in this subsection does not constitute a concession by any
11 party that any documents are subject to protection by the attorney-client privilege, the
12 work product doctrine or any other potentially applicable privilege or doctrine. This
13 agreement also is not intended to waive or limit in any way either party’s right to contest
14 any privilege claims that may be asserted with respect to any of the documents produced
15 except to the extent stated in the agreement.
16 14. MISCELLANEOUS
17 14.1 Right to Further Relief. Nothing in this Order abridges the right of any
18 person to seek its modification by the court in the future.
19 14.2 Right to Assert Other Objections. By stipulating to the entry of this
20 Protective Order no Party waives any right it otherwise would have to object to
21 disclosing or producing any information or item on any ground not addressed in this
22 Stipulated Protective Order. Similarly, no Party waives any right to object on any
23 ground to use in evidence of any of the material covered by this Protective Order.
24 14.3 Filing Protected Material. Without written permission from the
25 Designating Party or a court order secured after appropriate notice to all interested
26 persons, a Party may not file in the public record in this action any Protected Material.
27 A Party that seeks to file under seal any Protected Material must comply with Civil
28 Local Rule 79-5. Protected Material may only be filed under seal pursuant to a court
1 order authorizing the sealing of the specific Protected Material at issue. Pursuant to
2 Civil Local Rule 79-5, a sealing order will issue only upon a request establishing that
3 the Protected Material at issue is privileged, protectable as a trade secret, or otherwise
4 entitled to protection under the law. If a Receiving Party's request to file Protected
5 Material under seal pursuant to Civil Local Rule 79-5(e) is denied by the court, then the
6 Receiving Party may file the Protected Material in the public record pursuant to Civil
7 Local Rule 79-5(e)(2) unless otherwise instructed by the court.
8 14.4 Discovery Material shall be utilized by recipients only for purposes of this
9 litigation and for no other purposes.
10 14.5 Any person receiving Protected Material shall not reveal or discuss such
11 information to or with any person except as expressly permitted by the terms of this
12 Stipulated Protective Order.
13 14.6 Extracts and summaries of Protected Material shall also be treated as
14 confidential in accordance with the provisions of this Stipulated Protective Order.
15 14.7 The production or disclosure of Protected Material shall in no way
16 constitute a waiver of each Party’s right to object to the production or disclosure of other
17 information in this litigation or in any other action.
18 14.8 This Stipulated Protective Order is entered into without prejudice to the
19 right of either Party to seek relief from, or modification of, this Stipulated Protective
20 Order or any provisions thereof by properly noticed motion to the Court. This Stipulated
21 Protective Order shall not prevent a Party from arguing that certain documents are so
22 sensitive that they should not be produced even under this Stipulated Protective Order
23 or from seeking further protection for certain documents.
24 14.9 The Parties agree that they would not have an adequate remedy at law in
25 the event that a court of competent jurisdiction determines that there is an actual or
26 threatened breach of this Stipulated Protective Order by either Party and agrees that
27 under such circumstances the Parties will be entitled to specific performance, and/or
28 injunctive relief, to enforce the terms hereof, in addition to any remedy to which they
1 may be entitled at law or in equity.
2 14.10 The United States District Court for the Central District of California is
3 responsible for the interpretation and enforcement of this Stipulated Protective Order.
4 All disputes concerning Protected Material, however designated, produced under the
5 protection of this Stipulated Protective Order shall be resolved by the United States
6 District Court for the Central District of California.
7 14.11 This Stipulated Protective Order has no effect upon, and shall not apply to,
8 the Parties’ use of their own Protected Material for any purpose. Nothing herein shall
9 impose any restrictions on the use or disclosure by a Party of documents, materials or
10 information designated as Protected Material that has been obtained lawfully by such
11 Party independently of the proceedings in this litigation.
12 14.12 In the event that additional parties join or are joined in this litigation, they
13 shall not have access to Protected Materials until the newly joined party, by its counsel,
14 has executed and filed with the Court its agreement to be fully bound by this Stipulated
15 Protective Order.
16 14.13 The parties agree to be bound by the terms of this Stipulated Protective
17 Order pending the entry by the Court of this Stipulated Protective Order (including as
18 to any materials that have already been produced in this litigation), and any violation of
19 its terms shall be subject to the same penalties and sanctions, as if this Stipulated
20 Protective Order had been entered by the Court.
21 14.14 This Stipulated Protective Order shall continue to be binding after the
22 conclusion of this Litigation, except that (a) there shall be no restriction on documents
23 that are used as exhibits in Court (unless such exhibits were filed and maintained under
24 seal), documents containing Protected Material filed under seal with the Court that are
25 eventually unsealed, either voluntarily or pursuant to Court order, or documents
26 containing Protected Material of a Designating Party that are filed unsealed by the
27 Designating Party; and (b) a Party may seek the written permission of the Producing
28 Party or further order of the Court with respect to dissolution or modification of the
1 Stipulated Protective Order.
2 14.15 Nothing herein shall be deemed to waive any privilege recognized by law,
3 or shall be deemed an admission as to the admissibility in evidence of any facts or
4 documents revealed in the course of disclosure.
5 14.16 This Stipulated Protective Order shall not be interpreted in a manner that
6 would violate any applicable canons of ethics or codes of professional responsibility.
7 Nothing in this Stipulated Protective Order shall prohibit or interfere with the ability of
8 counsel for any Party, or of experts specially retained for this litigation, to represent any
9 individual, corporation, or other entity adverse to any Party or its affiliate(s) in
10 connection with any other matters.
11 14.17 This Stipulated Protective Order may be changed by further order of this
12 Court, and is without prejudice to the right of a Party to move for relief from any of its
13 provisions, or to seek or agree to different or additional protection for any particular
14 material or information. All modifications of, waivers of, and amendments to this
15 Stipulated Protective Order must be in writing and signed by, or on behalf of, the
16 Parties.
17 15. DISCOVERY FROM EXPERTS
18 (a) Testifying Experts shall not be subject to discovery with respect to any draft
19 of his or her report(s) in this case. Draft reports, notes, or outlines for draft reports
20 developed and drafted by the testifying Expert and/or his or her staff are also exempt
21 from discovery.
22
(b) Discovery of materials provided to testifying Experts shall be limited to those
23
materials, facts, consulting expert opinions, and other matters actually relied upon by
24
the testifying Expert in forming his or her final report, trial or deposition testimony, or
25
any opinion in this case. No discovery can be taken from any non-testifying Expert
26
except to the extent that such non-testifying Expert has provided information or
27
opinions to a testifying Expert relied upon, and not independently verified, by that
28
1 testifying Expert in forming his or her final report(s), trial and/or deposition testimony,
2 or any opinion in this case.
3
(c) No conversations or communications between counsel and any testifying or
4
consulting Expert will be subject to discovery unless the conversations or
5
communications are relied upon by such Experts in formulating opinions that are
6
presented in reports or trial or deposition testimony or any opinion in this case.
7
(d) Materials, communications, and other information exempt from discovery
8
under the foregoing subsections (a)-(c) shall be treated as attorney work product and
9
need not be listed on a privilege log. Notwithstanding the provisions of this subsection
10
(d), if a testifying Expert conducts or relies on partial or full results of experiments,
11
tests, or studies that form the opinion of a testifying Expert, nothing herein prevents a
12
Party from seeking discovery into the full results of such experiments, tests, or studies.
13
16. FINAL DISPOSITION
14
Within 60 days after the final disposition of this action, as defined in Section 4,
15
each Receiving Party must return all Protected Material to the Producing Party or
16
destroy such material, at the option of the Receiving Party. As used in this subdivision,
17
“all Protected Material” includes all copies, abstracts, compilations, summaries, and
18
any other format reproducing or capturing any of the Protected Material. Whether the
19
Protected Material is returned or destroyed, the Receiving Party must submit a written
20
certification to the Producing Party (and, if not the same person or entity, to the
21
Designating Party) by the 60-day deadline that confirms compliance with this provision.
22
Notwithstanding this provision, Counsel are entitled to retain an archival copy of all
23
pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
24
correspondence, deposition and trial exhibits, expert reports and exhibits, attorney work
25
product, and consultant and expert work product, even if such materials contain
26
Protected Material, with the exception of subsection 9(i) pertaining to source code. Any
27
such archival copies that contain or constitute Protected Material remain subject to this
28
1 | Stipulated Protective Order as set forth in Section 4.
2
3 GOOD CAUSE HAVING BEEN SHOWN THE PARTIES’
4 | STIPULATION, IT IS SO ORDERED.
5 .
6 | DATED: May 14, 2021 fu Mt
7 HON. PEDRO V. CASTILLO
United States Magistrate Judge
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07553-00012/12644201.3 30
1 EXHIBIT A
2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
3 I, _____________________________ [full name], of
4 _____________________________________________________________________
5 _________________________________________________________ [full address],
6 declare under penalty of perjury that I have read in its entirety and understand the
7 Stipulated Protective Order that was issued by the United States District Court for
8 the Central District of California in the case of NantWorks, LLC and Nant Holdings
9 IP, LLC v. Bank of America Corporation and Bank of America, N.A., Case No. 2:20-
10 cv-7872-GW-PVC. I agree to comply with and to be bound by all the terms of this
11 Stipulated Protective Order and I understand and acknowledge that failure to so comply
12 could expose me to sanctions and punishment in the nature of contempt. I solemnly
13 promise that I will not disclose in any manner any information or item that is subject to
14 this Stipulated Protective Order to any person or entity except in strict compliance with
15 the provisions of this Order.
16 I further agree to submit to the jurisdiction of the United States District Court for
17 the Central District of California for the purpose of enforcing the terms of this
18 Stipulated Protective Order, even if such enforcement proceedings occur after
19 termination of this action.
20
Date: _________________
21
City and State where signed: _________________________________
22
Present occupation/job description: _______________________________________
23
Name of company or firm: ______________________________________________
24
Signature: __________________________________
25
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