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`BETSY C. MANIFOLD (182450)
`RACHELE R. BYRD (190634)
`BRITTANY N. DEJONG (258766)
`WOLF HALDENSTEIN ADLER
`FREEMAN & HERZ LLP
`750 B Street, Suite 1820
`San Diego, CA 92101
`Telephone:
`619/239-4599
`Facsimile:
`619/234-4599
`manifold@whafh.com
`byrd@whafh.com
`dejong@whafh.com
`
`Interim Class Counsel for the
`Consumer Plaintiffs
`
`UNITED STATES DISTRICT COURT
`
`FOR THE NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`IN RE APPLE iPHONE ANTITRUST
`LITIGATION
`
`DONALD R. CAMERON, et al.,
`
`Case No. 4:11-cv-06714-YGR-TSH
`
`ORDER GRANTING [PROPOSED]
`SUPPLEMENTAL PROTECTIVE
`ORDER GOVERNING DISCOVERY
`FROM ZYNGA, INC.
`
`Hon. Yvonne Gonzalez Rogers
`
`Plaintiffs,
`
`Case No. 4:19-cv-03074-YGR
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`v.
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`APPLE INC.,
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`Defendant.
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`EPIC GAMES, INC., et al.,
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`Plaintiff, Counter-defendant,
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`Case No. 4:20-cv-05640-YGR
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`Defendant, Counterclaimant.
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`v.
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`APPLE INC.,
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
`
`
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 2 of 29
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`Having considered Consumer Plaintiffs’ Administrative Motion for Entry of Supplemental
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`Protective Orders and any opposition(s) filed in response thereto, and good cause appearing, the
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`Court hereby grants the motion and enters the following order:
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`A.
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`1.
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`GENERAL PROVISIONS
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`The definitions, terms and provisions contained in the Stipulated Amended
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`Protective Order on January 21, 2021 (Case No. 4:11-cv-06714-YGR, Dkt. No. 381; Case No.
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`4:19-cv-03074-YGR, Dkt. No. 252) (the “Protective Order”) shall be incorporated herein by
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`reference as though fully set forth herein; provided, however, that in the event of a conflict between
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`any definition, term or provision of this Supplemental Protective Order and any definition, term or
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`provision of the Protective Order, this Supplemental Protective Order will control with respect to
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`such conflict.
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`2.
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`The definitions, terms and provisions contained in this Supplemental Protective
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`Order shall apply only to those Discovery Materials produced by Zynga1, and nothing herein shall
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`provide any rights or protections to the Parties to the Litigations2
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` beyond those set forth in the
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`Protective Order.
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`B.
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`1.
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`making.
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`ADDITIONAL DEFINITIONS
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`Business Consultant: a consultant advising on or involved in competitive decision-
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`2.
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`Party: A named Plaintiff or Defendant in the Litigations; but not any other
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`individuals or entities listed on the docket, including those variously listed as “Interested Party”
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`“Respondent” or “Miscellaneous”.
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`3.
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`Party Expert: with respect to “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY”, a person with specialized knowledge or experience in a matter
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`The term “Zynga” shall include any entity that responds to subpoenas served on Zynga Inc.
`in the Litigations. References to “competitors” within this Supplemental Protective Order shall be
`interpreted to mean competitors of Zynga Inc. and its parents and subsidiaries.
`2
`Litigations shall mean In re Apple iPhone Antitrust Litigation, Case No. 4:11-cv-06714-
`YGR; Cameron v. Apple Inc., Case No. 4:19-cv-03074-YGR; and Epic Games, Inc. v. Apple Inc.,
`Case No. 4:20-cv-05640.
`
`
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`1
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` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA, INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
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`
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 3 of 29
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`pertinent to the Litigations who: (1) has been retained by a Party or its counsel to serve as an expert
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`witness or as a consultant in this action; (2) is not a current employee or current Business
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`Consultant of a Party, Zynga, or of any Zynga competitor, or otherwise currently involved in
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`competitive decision-making for a Party, Zynga, or for any Zynga competitor; (3) has not been a
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`past employee or Business Consultant of a Party, Zynga, or Zynga’s competitor, or otherwise been
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`involved in competitive decision-making for a Party, Zynga, or Zynga’s competitor; and (4) at the
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`time of retention, is not anticipated to become an employee or Business Consultant of a Party,
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`Zynga, or of any Zynga competitor, or to be otherwise involved in competitive decision-making for
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`a Party, Zynga, or for any Zynga competitor. If, while this action is pending, a Party learns that any
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`of its retained experts or consultants as defined herein is anticipating to become, or has become, an
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`employee or Business Consultant of a Party, Zynga, or any Zynga competitor, or otherwise
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`involved in competitive decision-making for a Party, Zynga, or any Zynga competitor, the Party
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`learning such information shall promptly disclose the information to Zynga.
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`4.
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`“ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”
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`Information or Items: “Confidential Information or Items” produced by Zynga, that contains the
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`following types of extremely sensitive information—algorithms and source code; non-public,
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`commercially sensitive customer lists or communications; non-public financial, marketing, or
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`strategic business planning information; non-public information regarding prices, costs, margins, or
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`other financial metrics; information relating to research, development, maintenance, improvement,
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`testing of, or plans for existing or proposed future products; non-public information concerning
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`Zynga’s data protection practices or security protocols; evaluation of the strengths or vulnerabilities
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`of Zynga’s product offerings, including non-public pricing and cost information; confidential
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`contractual terms, proposed contractual terms, or negotiating positions (including internal
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`deliberations about negotiating positions) taken with respect to Zynga, Zynga’s partners and
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`affiliates, or competitors to Zynga; information relating to pending or abandoned patent
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`applications that have not been made available to the public; confidential submissions to
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`governmental entities describing Zynga’s legal positions or theories; personnel files; sensitive
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` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
`
`
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 4 of 29
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`personally identifiable information; commercially sensitive information about advertising including
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`financial metrics, contracts, platforms use, performance, methodology, strategy, or otherwise
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`commercially sensitive advertising information; commercially sensitive information about cloud
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`computing resources provided either by Zynga or a third-party provider, including historical or
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`forward-looking analyses and projections, pricing structures or financial metrics, usage metrics,
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`infrastructure, or contracts; commercially sensitive information about licensing, royalties, and fees
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`to acquire content or intellectual property; and communications that disclose any such information.
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`C.
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`ADDITIONAL PROTECTIONS FOR ACCESS TO AND USE OF ZYNGA
`
`PROTECTED MATERIALS
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`1.
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`Manner of Designating “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY” Information or Items. Designation in conformity with this Supplemental
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`Protective Order requires:
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`(a)
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`for information in documentary form (e.g., paper or electronic
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`documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that
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`Zynga affix the legend “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
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`ONLY” to each page of any document for which Zynga seeks protection under this Supplemental
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`Protective Order. If only a portion or portions of the material on a page qualifies for protection,
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`Zynga also must clearly identify the protected portion(s) (e.g., by making appropriate markings in
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`the margins).
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`If Zynga makes original documents or materials available for inspection, it need not
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`designate them for protection until after the inspecting Party has indicated which material it would
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`like copied and produced. During the inspection and before the designation, all of the material
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`made available for inspection shall be deemed “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY.” After the inspecting Party has identified the documents it wants copied
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`and produced, Zynga must determine which documents, or portions thereof, qualify for protection
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`under this Supplemental Protective Order. Then, before producing the specified documents, Zynga
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`must affix the appropriate legend (“ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
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`3 [
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`PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
`
`
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 5 of 29
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`EYES ONLY”) to each page that contains such material. If only a portion or portions of the
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`material on a page qualifies for protection, Zynga also must clearly identify the protected portion(s)
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`(e.g., by making appropriate markings in the margins.)
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`(b)
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`for testimony given in deposition or in other pretrial proceedings not
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`involving the court, that Zynga identify on the record, before the close of the deposition, hearing, or
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`other proceeding, all protected testimony. When it is impractical to identify separately each portion
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`of testimony that is entitled to protection and it appears that substantial portions of the testimony
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`may qualify for protection, Zynga may invoke on the record (before the deposition, hearing, or
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`other proceeding is concluded) a right to have up to 21 days to identify the specific portions of the
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`testimony as to which protection is sought. Only those portions of the testimony that are
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`appropriately designated for protection within the 21 days shall be covered by the provisions of this
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`Supplemental Protective Order. Alternatively, Zynga may specify, at the deposition or up to 21
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`days afterwards if that period is properly invoked, that the entire transcript shall be treated as
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`“ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” With respect to
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`trial, Zynga can petition the Court for appropriate protective measures which shall be requested in
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`advance of evidence being taken.
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`Zynga and the Parties shall give the other parties notice if they reasonably expect a
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`deposition, hearing, or other proceeding to include “ZYNGA HIGHLY CONFIDENTIAL –
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`OUTSIDE COUNSEL EYES ONLY” Information or Items so that the other parties can ensure that
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`only authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit A to the Protective Order) are present at those proceedings. The use of a document as an
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`exhibit at a deposition shall not in any way affect its designation as “ZYNGA HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.”
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`Transcripts containing “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY” Information or Items shall have an obvious legend on the title page that
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`the transcript contains such material, and the title page shall be followed by a list of all pages
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`(including line numbers as appropriate) that have been designated as “ZYNGA HIGHLY
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`4 [
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`PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
`
`
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 6 of 29
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”. Zynga shall inform the court reporter
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`of these requirements. Any transcript that is prepared before the expiration of a 21-day period for
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`designation shall be treated during that period as if it had been designated “ZYNGA HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” in its entirety unless otherwise agreed.
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`After the expiration of that period, the transcript shall be treated only as actually designated.
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`(c)
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`for information produced in some form other than documentary and
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`for any other tangible items, that Zynga 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 “ZYNGA HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” If only a portion or portions of the
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`information or item warrant protection, Zynga, to the extent practicable, shall identify the protected
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`portion(s).
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`2.
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`Disclosure of “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
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`EYES ONLY” Information or Items. Nothing in this Supplemental Protective Order shall prohibit
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`Zynga from choosing to disclose information to specific individuals or entities, including expert
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`witnesses, at its own discretion. Unless otherwise ordered by the Court or permitted in writing by
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`Zynga, a Party may disclose any information or item designated “ZYNGA HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” only to:
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`(a)
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`the 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 these Litigations and who have signed the “Acknowledgement and Agreement to
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`be Bound” that is attached to the Protective Order as Exhibit A;
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`(b)
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`Designated House Counsel of the Party, but only in the event that (i)
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`information designated “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
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`ONLY” is incorporated into and necessary to a Party’s work product that is to be filed or served in
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`these Litigations; (ii) the Party discloses to Zynga the relevant excerpts from the work product that
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`include the information designated “ZYNGA HIGH CONFIDENTIAL – OUTSIDE COUNSEL
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`EYES ONLY” prior to disclosure to Designated House Counsel of the Party; (iii) the Party
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`5 [
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`PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
`
`
`
`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 7 of 29
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`identifies by name and job title the Designated House Counsel with whom such work product will
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`be shared for the purpose of reviewing and approving the work product in advance of filing or
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`service; and (iv) Zynga provides consent to the disclosure, which shall not unreasonably be
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`withheld;
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`(c)
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`Party Experts (as defined in this Supplemental Protective Order) (1)
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`to whom disclosure is reasonably necessary for these Litigations and (2) who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A to the Protective Order);
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`(d)
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`(e)
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`the Court and its personnel;
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`court reporters and their staff, professional jury or trial consultants,
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`and Professional Vendors to whom disclosure is reasonably necessary for these Litigations and who
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`have signed the “Acknowledgment and Agreement to be Bound” (Exhibit A to the Protective
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`Order); and
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`(f)
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`the author or recipient of a document containing the information.
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`3.
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`Any Party disclosing any information or item for which an “Acknowledgement and
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`Agreement to be Bound” (Exhibit A to the Protective Order) is required shall collect and maintain a
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`copy of each executed form and promptly provide them to Zynga upon Zynga’s request. Zynga will
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`not disclose the identity of any expert who has signed the “Acknowledgement and Agreement to be
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`Bound” without first obtaining the consent of the party that retained the expert or, alternatively,
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`authorization from the Court.
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`4.
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`In light of the close of discovery in Epic Games, Inc. v. Apple Inc., Case No. 4:20-
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`cv-05640, Dkt. No. 116, any discovery produced by Zynga in In re Apple iPhone Antitrust
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`Litigation and Cameron v. Apple Inc. (Case No. 4:11-cv-06714-YGR) or (Case No. 4:19-cv-03074-
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`YGR) and designated either “CONFIDENTIAL” or “ZYNGA HIGHLY CONFIDENTIAL –
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`OUTSIDE COUNSEL EYES ONLY” shall not be produced in or used at trial in Epic Games, Inc.
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`v. Apple Inc.
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`5.
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`If additional named plaintiffs are joined in Cameron v. Apple Inc. Case No. 4:19-cv-
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`03074-YGR, the existing named Plaintiffs in that matter—Donald R. Cameron and Pure Sweat
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`6
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` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
`
`
`
`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 8 of 29
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`Basketball, Inc.—shall notify Zynga. Zynga shall have reasonable opportunity to seek further
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`protective orders and object to sharing of any discovery produced by Zynga and designated either
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`“CONFIDENTIAL” or “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
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`ONLY” as to the new named Plaintiffs.
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`6.
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`All other provisions of the Protective Order, including Paragraphs 2, 3, 4, 5.3, 6, 7.1,
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`9, 10, 11, 12, 13, and 14 apply mutatis mutandis to information designated “ZYNGA HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” to the same extent as they apply to
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`information designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”; except
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`that the provision in Paragraph 3 of the Protective Order providing that any use of Protected
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`Material at trial shall be governed by a separate agreement or order shall not apply to information
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`designated “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”. Unless
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`otherwise ordered by the Court or expressly permitted by Zynga, no Party seeking to introduce
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`documents or information designated “ZYNGA HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY” into the record at trial may disclose the materials to any persons other
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`than those identified in Paragraph C.2. of this Supplemental Protective Order.
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`IT IS SO ORDERED.
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`22
`DATED: November _____, 2021
`
`HON. YVONNE GONZALEZ ROGERS
`
`United States District Judge
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`7 [
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`PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER
`GOVERNING DISCOVERY FROM ZYNGA INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
`
`
`
`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 9 of 29
`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 9 of 29
`
`EXHIBIT B
`EXHIBIT B
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`
`
`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 10 of 29
`
`BETSY C. MANIFOLD (182450)
`RACHELE R. BYRD (190634)
`BRITTANY N. DEJONG (258766)
`WOLF HALDENSTEIN ADLER
`FREEMAN & HERZ LLP
`750 B Street, Suite 1820
`San Diego, CA 92101
`Telephone:
`619/239-4599
`Facsimile:
`619/234-4599
`manifold@whafh.com
`byrd@whafh.com
`dejong@whafh.com
`
`Consumer Plaintiffs’ Interim Class Counsel
`
`UNITED STATES DISTRICT COURT
`
`NORTHERN DISTRICT OF CALIFORNIA
`
`OAKLAND DIVISION
`
`IN RE APPLE IPHONE ANTITRUST
`LITIGATION
`
`DONALD R. CAMERON, et al.,
`
`Case No. 4:11-cv-06714-YGR-TSH
`
`ORDER GRANTING [PROPOSED]
`SUPPLEMENTAL PROTECTIVE
`ORDER GOVERNING DISCOVERY
`FROM NIANTIC, INC.
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`Hon. Yvonne Gonzalez Rogers
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`Plaintiffs,
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`Case No. 4:19-cv-03074-YGR-TSH
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`v.
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`APPLE INC.,
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`Defendant.
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`EPIC GAMES, INC.,
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`Plaintiff and Counter-defendant,
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`Case No. 4:20-cv-05640-YGR-TSH
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`v.
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`APPLE INC.,
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`Defendant and Counterclaimant.
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`[PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 11 of 29
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`Having considered Consumer Plaintiffs’ Administrative Motion for Entry of Supplemental
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`Protective Orders and any opposition(s) filed in response thereto, and good cause appearing, the
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`Court hereby grants the motion and enters the following order:
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`A.
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`1.
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`GENERAL PROVISIONS
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`The definitions, terms and provisions contained in the Stipulated Amended
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`Protective 6 Order on January 21, 2021 (Case No. 4:11-cv-06714-YGR, Dkt. No. 381; Case No.
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`4:19-cv-03074-YGR, Dkt. No. 252) (the “Protective Order”) shall be incorporated herein by
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`reference as though fully set forth herein; provided, however, that in the event of a conflict between
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`any definition, term or provision of this Supplemental Protective Order and any definition, term or
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`provision of the Protective Order, this Supplemental Protective Order will control with respect to
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`such conflict.
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`2.
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`The definitions, terms and provisions contained in this Supplemental Protective
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`Order shall apply only to those Discovery Materials produced by Niantic1, and nothing herein shall
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`provide any rights or protections to the Parties to the Litigations2 beyond those set forth in the
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`Protective Order.
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`B.
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`1.
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`making.
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`ADDITIONAL DEFINITIONS
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`Business Consultant: a consultant advising on or involved in competitive decision-
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`2.
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`Party Expert: with respect to “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY,” a person with specialized knowledge or experience in a matter
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`pertinent to the Litigations who: (1) has been retained by a Party or its counsel to serve as an expert
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`witness or as a consultant in this action; (2) is not a current employee or current Business
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`Consultant of a Party, Niantic, or of any Niantic competitor, or otherwise currently involved in
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`The term “Niantic” shall include any entity that responds to subpoenas served on Niantic,
`Inc. in the Litigations. References to “competitors” within this Supplemental Protective Order shall
`be interpreted to mean competitors of Niantic, Inc. and its subsidiaries.
`2
`Litigations shall mean In re Apple iPhone Antitrust Litigation, Case No. 4:11-cv-06714-
`YGR; Cameron v. Apple Inc., Case No. 4:19-cv-03074-YGR; and Epic Games, Inc. v. Apple Inc.;
`Case No. 4:20-cv-05640.
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`1
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` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-cv-06714-YGR-TSH; 4:19-cv-03074-YGR-TSH; 4:20-cv-05640-YGR-TSH
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 12 of 29
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`competitive decision- making for a Party, Niantic, or for any Niantic competitor; (3) has not, within
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`the 12 months preceding the entry of this Protective Order, been an employee or Business
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`Consultant of a Party, Niantic, or Niantic’s competitor, or otherwise been involved in competitive
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`decision-making for a Party, Niantic, or Niantic’s competitor; and (4) at the time of retention, is not
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`anticipated to become an employee or Business Consultant of a Party, Niantic, or of any Niantic
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`competitor, or to be otherwise involved in competitive decision-making for a Party or for any
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`Niantic competitor. If, while this action is pending, a Party learns that any of its retained experts or
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`consultants as defined herein is anticipating to become, or has become, an employee or Business
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`Consultant of Niantic or any Niantic competitor, or otherwise involved in competitive decision-
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`making for Niantic or any Niantic competitor, the Party learning such information shall promptly
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`disclose the information to Niantic.
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`3.
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`“NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”
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`Information or Items: extremely sensitive “Confidential Information or Items” produced by Niantic
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`and that contain algorithms and source code; non-public, commercially sensitive customer lists or
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`communications; non-public financial, marketing, or strategic business information; current or
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`future non-public information regarding prices, costs, margins, or other financial metrics;
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`information relating to research, development, testing of, or plans for existing or proposed future
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`products; non-public information concerning Niantic’s data protection practices and security
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`protocols or other matters related to data security or privacy; evaluation of the strengths and
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`vulnerabilities of Niantic’s product offerings, including non-public pricing and cost information;
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`confidential contractual terms, proposed contractual terms, or negotiating positions (including
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`internal deliberations about negotiating positions) taken with respect to Niantic or competitors to
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`Niantic; non-public intellectual property information; information relating to pending or abandoned
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`patent applications that have not been made available to the public; confidential submissions to
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`governmental entities describing Niantic’s legal positions or theories or other matters; personnel
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`files; sensitive personally identifiable information; and communications that disclose any such
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` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH; 4:19-CV-03074-YGR-TSH; 4:20-CV-05640-YGR-TSH
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 13 of 29
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`information, disclosure of which to a Party or another Non- Party would create a substantial risk of
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`serious harm that could not be avoided by less restrictive means.
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`C.
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`ADDITIONAL PROTECTIONS FOR ACCESS TO AND USE OF NIANTIC
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`PROTECTED MATERIALS
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`1.
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`Manner of Designating “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY” Information or Items. Designation in conformity with this Supplemental
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`Protective Order requires:
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`(a)
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`for information in documentary form (e.g., paper or electronic
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`documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that
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`Niantic affix the legend “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES
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`ONLY” to each page of any document for which Niantic seeks protection under this Supplemental
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`Protective Order. If only a portion or portions of the material on a page qualifies for protection,
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`Niantic also must clearly identify the protected portion(s) (e.g., by making appropriate markings in
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`the margins).
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`If Niantic makes original documents or materials available for inspection, it need not
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`designate them for protection until after the inspecting Party has indicated which material it would
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`like copied and produced. During the inspection and before the designation, all of the material
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`made available for inspection shall be deemed “NIANTIC HIGHLY CONFIDENTIAL –
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`OUTSIDE COUNSEL EYES ONLY.” After the inspecting Party has identified the documents it
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`wants copied and produced, Niantic must determine which documents, or portions thereof, qualify
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`for protection under this Supplemental Protective Order. Then, before producing the specified
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`documents, Niantic must affix the appropriate legend (“NIANTIC HIGHLY CONFIDENTIAL –
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`OUTSIDE COUNSEL EYES ONLY”) to each page that contains such material. If only a portion or
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`portions of the material on a page qualifies for protection, Niantic also must clearly identify the
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`protected portion(s) (e.g., by making appropriate markings in the margins).
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`(b)
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`for testimony given in deposition or in other pretrial proceedings not
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`involving the Court, that Niantic identify on the record, before the close of the deposition, hearing,
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`3
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` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH; 4:19-CV-03074-YGR-TSH; 4:20-CV-05640-YGR-TSH
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`
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 14 of 29
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`or other proceeding, all protected testimony. When it is impractical to identify separately each
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`portion of testimony that is entitled to protection and it appears that substantial portions of the
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`testimony may qualify for protection, Niantic may invoke on the record (before the deposition,
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`hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific
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`portions of the testimony as to which protection is sought. Only those portions of the testimony that
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`are appropriately designated for protection within the 21 days shall be covered by the provisions of
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`this Supplemental Protective Order. Alternatively, Niantic may specify, at the deposition or up to
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`21 days afterwards if that period is properly invoked, that the entire transcript shall be treated as
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`“NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” With respect to
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`trial, Niantic can petition the Court for appropriate protective measures which shall be requested in
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`advance of evidence being taken.
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`Niantic and the Parties shall give the other parties notice if they reasonably expect a
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`deposition, hearing, or other proceeding to include “NIANTIC HIGHLY CONFIDENTIAL –
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`OUTSIDE COUNSEL EYES ONLY” Information or Items so that the other parties can ensure that
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`only 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 “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY.”
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`Transcripts containing “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE
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`COUNSEL EYES ONLY” Information or Items shall have an obvious legend on the title page that
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`the transcript contains such material, and the title page shall be followed by a list of all pages
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`(including line numbers as appropriate) that have been designated as “NIANTIC HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY”. Niantic shall inform the court reporter
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`of these requirements. Any transcript that is prepared before the expiration of a 21-day period for
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`designation shall be treated during that period as if it had been designated “NIANTIC HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” in its entirety unless otherwise agreed.
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`After the expiration of that period, the transcript shall be treated only as actually designated.
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` [PROPOSED] SUPPLEMENTAL PROTECTIVE ORDER GOVERNING
`DISCOVERY FROM NIANTIC, INC.
`Case Nos. 4:11-CV-06714-YGR-TSH; 4:19-CV-03074-YGR-TSH; 4:20-CV-05640-YGR-TSH
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`
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`Case 4:20-cv-05640-YGR Document 834 Filed 11/22/21 Page 15 of 29
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`(c)
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`for information produced in some form other than documentary and
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`for any other tangible items, that Niantic 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 “NIANTIC HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY.” If only a portion or portions of the
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`information or item warrant protection, Niantic, to the extent practicable, shall identify the
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`protected portion(s).
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`2.
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`Disclosure of “NIANTIC HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
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`EYES ONLY” Information or Items. Unless otherwise ordered by the Court or permitted in writing
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`by Niantic, a Party may disclose any information or item designated “NIANTIC HIGHLY
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`CONFIDENTIAL – OUTSIDE COUNSEL EYES ONLY” only to:
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`(a)
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`the 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 these Litigations and who have signed the “Acknowledgement and Agreement to
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`be Bound” that is attached to the Protective Order as Exhibit A;
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`(b)
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`Designated House Counsel of the Party, but only in the event that (i)
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`information