Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 1 of 24
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`Jonathan J. Lamberson (CA SBN 239107)
`lamberson@fr.com
`Meghana RaoRane (CA SBN 253531)
`raorane@fr.com
`FISH & RICHARDSON P.C.
`500 Arguello Street, Suite 500
`Redwood City, CA 94063
`Telephone: (650) 839-5070
`Facsimile: (650) 839-5071
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`Indranil Mukerji (pro hac vice)
`mukerji@fr.com
`FISH & RICHARDSON P.C.
`1000 Maine Avenue SW
`Washington, D.C. 20024
`Telephone: (202) 783-5070
`Facsimile: (202) 783-2331
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`Ricardo Bonilla (pro hac vice)
`rbonilla@fr.com
`FISH & RICHARDSON P.C.
`1717 Main Street, Suite 5000
`Dallas, TX 75201
`Telephone: (214) 747-5070
`Facsimile: (214) 747-2091
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`Attorneys for Defendant
`MICROSOFT CORPORATION
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`M. ELIZABETH DAY (TX SBN 177125)
`eday@feinday.com
`DAVID ALBERTI (TX SBN 220265)
`dalberti@feinday.com
`MARC BELLOLI (TX SBN 244290)
`mbelloli@feinday.com
`FEINBERG DAY ALBERTI LIM &
` BELLOLI LLP
`1600 El Camino Real, Suite 280
`Menlo Park, CA 94025
`Telephone: (650) 618-4360
`Facsimile: (650) 618-4368
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`Hao Ni (pro hac vice)
`hni@nilawfirm.com
`NI, WANG & MASSAND, PLLC
`8140 Walnut Hill Lane, Suite 500
`Dallas, TX 75231
`Telephone: (972) 331-4600
`Facsimile: (972) 314-0900
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`Attorneys for Plaintiff
`HYPERMEDIA NAVIGATION, LLC
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`UNITED STATES DISTRICT COURT
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`NORTHERN DISTRICT OF CALIFORNIA
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`OAKLAND DIVISION
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`Case No. 4:18-cv-00670-HSG
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`STIPULATED [PROPOSED]
`PROTECTIVE ORDER
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`HYPERMEDIA NAVIGATION LLC,
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` Plaintiff,
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`v.
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`MICROSOFT CORPORATION,
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` Defendant.
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`1.
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`PURPOSES AND LIMITATIONS
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`Disclosure and discovery activity in this action are likely to involve production of
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`confidential, proprietary, or private information for which special protection from public
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`disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 2 of 24
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`This Order does not confer blanket protections on all disclosures or responses to discovery and the
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`protection it affords from public disclosure and use extends only to the limited information or
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`items that are entitled to confidential treatment under the applicable legal principles. As set forth
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`in Section 14.4 below, this Protective Order does not entitle the Parties to file confidential
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`information under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and
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`the standards that will be applied when a party seeks permission from the court to file material
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`under seal.
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`2.
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`DEFINITIONS
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`2.1
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`Challenging Party: a Party or Non-Party that challenges the designation of
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`information or items under this Order.
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`2.2
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`“CONFIDENTIAL” Information or Items: information (regardless of how it is
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`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
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`of Civil Procedure 26(c).
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`2.3
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`Counsel (without qualifier): Outside Counsel of Record and House Counsel (as
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`well as their support staff).
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`2.4
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`Designated House Counsel: House Counsel who seek access to “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
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`2.5
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`Designating Party: a Party or Non-Party that designates information or items that it
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`produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS' EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE.”
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`2.6
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`Disclosure or Discovery Material: all items or information, regardless of the
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`medium or manner in which it is generated, stored, or maintained (including, among other things,
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`testimony, transcripts, and tangible things), that are produced or generated in disclosures or
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`responses to discovery in this matter.
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`2.7
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`Expert: a person with specialized knowledge or experience in a matter pertinent to
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`the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as
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`a consultant in this action, (2) is not a past or current employee of a Party or of a Party's
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 3 of 24
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`competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party or
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`of a Party's competitor.
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`2.8
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
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`Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
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`Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
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`less restrictive means, as well as information that a Party or Non-Party reasonably believes to be
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`subject to federal, state or foreign Data Protection Laws or other privacy obligations. Examples of
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`such Data Protection Laws include, without limitation, The Gramm-Leach-Biley Act, 15 U.S.C. §
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`6801 et seq. (financial information); The Health Insurance Portability and Accountability Act
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`(“HIPAA”) and the regulations thereunder, 45 CFR Part 160 and Subparts A and E of Part 164
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`(medical information); Regulation (EU) 2016/679 Of the European Parliament and of the Council
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`of 27 April 2016 on the Protection of Natural Persons with Regard to the Processing of Personal
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`Data and on the Free Movement of Such Data, also known as the General Data Protection
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`Regulation (“GDPR”). To the extent productions of these types of data may require additional
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`safeguards pursuant to Federal, State or foreign statutes, regulations or privacy obligations, the
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`parties will meet and confer to implement these safeguards if and when needed.
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`2.9
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely
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`sensitive “Confidential Information or Items” representing computer code and associated
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`comments and revision histories, formulas, engineering specifications, or schematics that define or
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`otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure
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`of which to another Party or Non-Party would create a substantial risk of serious harm that could
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`not be avoided by less restrictive means.
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`2.10 House Counsel: attorneys who are employees of a party to this action, as well as
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`their secretaries and paralegal assistants. House Counsel does not include Outside Counsel of
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`Record or any other outside counsel.
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`2.11 Non-Party: any natural person, partnership, corporation, association, or other legal
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`entity not named as a Party to this action.
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`2.12 Outside Counsel of Record: attorneys who are not employees of a party to this
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`action but are retained to represent or advise a party to this action and have appeared in this action
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`on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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`2.13 Party: any party to this action, including all of its officers, directors, employees,
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`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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`2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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`Material in this action.
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`2.15 Professional Vendors: persons or entities that provide litigation support services
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`(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and
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`organizing, storing, or retrieving data in any form or medium) and their employees and
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`subcontractors.
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`2.16 Protected Material: any Disclosure or Discovery Material that is designated as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
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`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a
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`Producing Party.
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`3.
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`SCOPE
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`The protections conferred by this Order cover not only Protected Material (as defined
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`above), but also (1) any information copied or extracted from Protected Material; (2) all copies,
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`excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations,
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`or presentations by Parties or their Counsel that might reveal Protected Material. However, the
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`protections conferred by this Order do not cover the following information: (a) any information
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`that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the
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`public domain after its disclosure to a Receiving Party as a result of publication not involving a
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`violation of this Order, including becoming part of the public record through trial or otherwise;
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`and (b) any information known to the Receiving Party prior to the disclosure or obtained by the
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`Receiving Party after the disclosure from a source who obtained the information lawfully and
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 5 of 24
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`under no obligation of confidentiality to the Designating Party. Any use of Protected Material at
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`trial shall be governed by a separate agreement or order.
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`4.
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`DURATION
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`Even after final disposition of this litigation, the confidentiality obligations imposed by this
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`Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order
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`otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
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`and defenses in this action, with or without prejudice; and (2) final judgment herein after the
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`completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
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`including the time limits for filing any motions or applications for extension of time pursuant to
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`applicable law.
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`5.
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`DESIGNATING PROTECTED MATERIAL
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`5.1
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`Exercise of Restraint and Care in Designating Material for Protection. Each Party
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`or Non-Party that designates information or items for protection under this Order must take care to
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`limit any such designation to specific material that qualifies under the appropriate standards. To
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`the extent it is practical to do so, the Designating Party must designate for protection only those
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`parts of material, documents, items, or oral or written communications that qualify – so that other
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`portions of the material, documents, items, or communications for which protection is not
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`warranted are not swept unjustifiably within the ambit of this Order.
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`Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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`shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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`unnecessarily encumber or retard the case development process or to impose unnecessary
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`expenses and burdens on other parties) expose the Designating Party to sanctions.
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`If it comes to a Designating Party’s attention that information or items that it designated
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`for protection do not qualify for protection at all or do not qualify for the level of protection
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`initially asserted, that Designating Party must promptly notify all other Parties that it is
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`withdrawing the mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
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`(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 6 of 24
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`Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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`designated before the material is disclosed or produced.
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`Designation in conformity with this Order requires:
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`(a) for information in documentary form (e.g., paper or electronic documents, but
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`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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`affix the legend “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains protected
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`material. If only a portion or portions of the material on a page qualifies for protection, the
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`Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
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`markings in the margins) and must specify, for each portion, the level of protection being asserted.
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`A Party or Non-Party that makes original documents or materials available for inspection
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`need not designate them for protection until after the inspecting Party has indicated which material
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`it would like copied and produced. During the inspection and before the designation, all of the
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`material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
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`copied and produced, the Producing Party must determine which documents, or portions thereof,
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`qualify for protection under this Order. Then, before producing the specified documents, the
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`Producing Party must affix the appropriate legend (“CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE”) to each page that contains Protected Material. If only a portion or portions of the material
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`on a page qualifies for protection, the Producing Party also must clearly identify the protected
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`portion(s) (e.g., by making appropriate markings in the margins) and must specify, for each
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`portion, the level of protection being asserted.
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`(b) for testimony given in deposition or in other pretrial or trial proceedings, that the
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`Designating Party identify on the record, before the close of the deposition, hearing, or other
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`proceeding, all protected testimony and specify the level of protection being asserted. When it is
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`impractical to identify separately each portion of testimony that is entitled to protection and it
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`appears that substantial portions of the testimony may qualify for protection, the Designating Party
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`may invoke a right to have up to 21 days to identify the specific portions of the testimony as to
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`which protection is sought and to specify the level of protection being asserted. Only those
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`portions of the testimony that are appropriately designated for protection within the 21 days shall
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`be covered by the provisions of this Protective Order. Alternatively, a Designating Party may
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`specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the
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`entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.”
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`Parties shall give the other parties notice if they reasonably expect a deposition, hearing, or
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`other proceeding to include Protected Material so that the other parties can ensure that only
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`authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
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`shall not in any way affect its designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.”
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`Transcripts containing Protected Material shall have an obvious legend on the title page
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`that the transcript contains Protected Material, and the title page shall be followed by a list of all
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`pages (including line numbers as appropriate) that have been designated as Protected Material and
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`the level of protection being asserted by the Designating Party. The Designating Party shall inform
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`the court reporter of these requirements. Any transcript that is prepared before the expiration of a
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`21-day period for designation shall be treated during that period as if it had been designated
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise
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`agreed. After the expiration of that period, the transcript shall be treated only as actually
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`designated.
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`(c) for information produced in some form other than documentary and for any other
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`tangible items, that the Producing Party affix in a prominent place on the exterior of the container
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`or containers in which the information or item is stored the legend “CONFIDENTIAL,”
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE.” If only a portion or portions of the information or item warrant protection, the
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 8 of 24
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`Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the
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`level of protection being asserted.
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`5.3
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`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
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`designate qualified information or items does not, standing alone, waive the Designating Party’s
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`right to secure protection under this Order for such material. Upon timely correction of a
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`designation, the Receiving Party must make reasonable efforts to assure that the material is treated
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`in accordance with the provisions of this Order.
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`6.1
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`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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`burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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`challenge a confidentiality designation by electing not to mount a challenge promptly after the
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`original designation is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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`process by providing written notice of each designation it is challenging and describing the basis
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`for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
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`notice must recite that the challenge to confidentiality is being made in accordance with this
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`specific paragraph of the Protective Order. The parties shall attempt to resolve each challenge in
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`good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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`forms of communication are not sufficient) within 14 days of the date of service of notice. In
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`conferring, the Challenging Party must explain the basis for its belief that the confidentiality
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`designation was not proper and must give the Designating Party an opportunity to review the
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`designated material, to reconsider the circumstances, and, if no change in designation is offered, to
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`explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of
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`the challenge process only if it has engaged in this meet and confer process first or establishes that
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`the Designating Party is unwilling to participate in the meet and confer process in a timely
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`manner.
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without court
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`intervention, the Designating Party shall file and serve a motion to retain confidentiality under
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`Civil Local Rule 7 (and in compliance with Civil Local Rule 79-5, if applicable) within 21 days of
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`the initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
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`process will not resolve their dispute, whichever is earlier. Each such motion must be
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`accompanied by a competent declaration affirming that the movant has complied with the meet
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`and confer requirements imposed in the preceding paragraph. Failure by the Designating Party to
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`make such a motion including the required declaration within 21 days (or 14 days, if applicable)
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`shall automatically waive the confidentiality designation for each challenged designation. In
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`addition, the Challenging Party may file a motion challenging a confidentiality designation at any
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`time if there is good cause for doing so, including a challenge to the designation of a deposition
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`transcript or any portions thereof. Any motion brought pursuant to this provision must be
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`accompanied by a competent declaration affirming that the movant has complied with the meet
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`and confer requirements imposed by the preceding paragraph.
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`The burden of persuasion in any such challenge proceeding shall be on the Designating
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`Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
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`unnecessary expenses and burdens on other parties) may expose the Challenging Party to
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`sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
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`file a motion to retain confidentiality as described above, all parties shall continue to afford the
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`material in question the level of protection to which it is entitled under the Producing Party’s
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`designation until the court rules on the challenge.
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`7.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`7.1
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`Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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`produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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`defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
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`the categories of persons and under the conditions described in this Order. When the litigation has
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`been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL
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`DISPOSITION).
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 10 of 24
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`Protected Material must be stored and maintained by a Receiving Party at a location and in
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`a secure manner that ensures that access is limited to the persons authorized under this Order.
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`7.2
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`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
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`by the court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information or item designated “CONFIDENTIAL” only to:
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` (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`(b) the officers, directors, and employees (including House Counsel) of the Receiving
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`Party to whom disclosure is reasonably necessary for this litigation and who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(c) Experts (as defined in this Order) of the Receiving Party (1) to whom disclosure is
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`reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit A) and (3) as to whom the procedures set forth in paragraph 7.6
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`have been followed;
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`(d) the court and its personnel;
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`(e) court reporters/videographers and their staff, professional jury or trial consultants,
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`and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(f) during their depositions, witnesses in the action to whom disclosure is reasonably
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`necessary and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A),
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`unless otherwise agreed by the Designating Party or ordered by the court. Pages of transcribed
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`deposition testimony or exhibits to depositions that reveal Protected Material must be separately
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`bound by the court reporter and may not be disclosed to anyone except as permitted under this
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`Protective Order.
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`(g) the author or recipient of a document containing the information or a custodian or
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`other person who otherwise possessed or knew the information.
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 11 of 24
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`7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`Information or Items. Unless otherwise ordered by the court or permitted in writing by the
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`Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
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` (a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`(b) Designated House Counsel of the Receiving Party (1) to whom disclosure is
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`reasonably necessary for this litigation, and (2) who has signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit A);1
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`(c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for
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`this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
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`A), and (3) as to whom the procedures set forth in paragraph 7.6, below, have been followed;
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`(d) the court and its personnel;
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`(e) court reporters/videographers and their staff, professional jury or trial consultants,
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`and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); and
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`(f) the author or recipient of a document containing the information or a custodian or
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`other person who otherwise possessed or knew the information.
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`7.4 Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
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`Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a
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`Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`1 This Order contemplates that Designated House Counsel shall not have access to any
`information or items designated “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 12 of 24
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`(b) no more than 3 Experts of the Receiving Party2 (1) to whom disclosure is
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`reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph
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`7.6, below, have been followed;
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`(c) the court and its personnel;
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`(d) court reporters/videographers subject to the provisions in Section 9; and
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`(e) the author or recipient of a document containing the information or a custodian or
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`other person who otherwise possessed or knew the information.
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`7.5 Mock Jurors. Mock jurors hired by trial consultants in connection with this
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`litigation may only be told about or shown “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” materials provided: (1) they are not affiliated with any party to this
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`case or their direct competitor; (2) they agree in writing to be bound by confidentiality; and (3)
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`they are not themselves given custody of any Protected Material, nor permitted to remove any
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`presentations, questionnaires or notes taken during the exercise from any room in which the
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`research is conducted. For the sake of clarity, mock jurors should not be shown material
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`designated “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`7.6 Procedures for Approving or Objecting to Disclosure of “CONFIDENTIAL,”
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” Information or Items to Experts.
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`(a) Unless otherwise ordered by the court or agreed to in writing by the Designating
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`Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item
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`that has been designated “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to this Order first
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`must make a written request to the Designating Party that (1) sets forth the full name of the Expert
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`and the city and state of his or her primary residence, (2) attaches a copy of the Expert’s current
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`resume, (3) identifies the Expert’s current employer(s), (4) identifies each person or entity from
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`2 To the extent additional experts need access, the parties agree to meet and confer in good faith,
`and the Receiving Party will not unreasonably withhold consent.
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`STIPULATED [PROPOSED] PROTECTIVE ORDER
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`Case 4:18-cv-00670-HSG Document 82 Filed 06/20/18 Page 13 of 24
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`whom the Expert has received compensation or funding for work in his or her areas of expertise or
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`to whom the expert has provided professional services, including in connection with a litigation, at
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`any time during the preceding five years,3 and (5) identifies (by name and number of the case,
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`filing date, and location of court) any litigation in connection with which the Expert has offered
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`expert testimony, including through a declaration, report, or testimony at a deposition or trial,
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`during the preceding five years. The request shall also specify if the Expert may have access to
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`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`(b) A Party that makes a request and provides the information specified in the
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`preceding respective paragraphs may disclose the subject Protected Material to the identified
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`Expert unless, within 14 days of delivering the request, the Party receives a written objection from
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`the Designating Party. Any such objection must set forth in detail the grounds on which it is based.
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`(c) A Party that receives a timely written objection must meet and confer with the
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`Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
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`agreement within seven days of the written objection. If no agreement is reached, the Party
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`seeking to make the disclosure to the Expert may file a motion as provided in Civil Local Rule 7
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`(and in compliance with Civil Local Rule 79-5, if applicable) seeking permission from the court to
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`do so. Any such motion must describe the circumstances with specificity, set forth in detail the
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`reasons why disclosure to the Expert is reasonably necessary, assess the risk of harm that the
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`disclosure would entail, and suggest any additional means that could be used to reduce that risk. In
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`addition, any such motion must be accompanied by a competent declaration describing the parties’
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`efforts to resolve the matter by agreement (i.e., the extent and