United States District Court, D. Nebraska
INTELLECTUAL VENTURES II LLC, a Limited Liability Company, Plaintiff,
FIRST NATIONAL BANK OF OMAHA, Defendant.
STIPULATED PROTECTIVE ORDER
F.A. GOSSETT, Magistrate Judge.
This matter is before the Court on the parties' Motion for Entry of Protective Order (filing 43). Having reviewed the matter, a Protective Order is entered as follows:
Proceedings and Information Governed.
1. This Order and any amendments or modifications hereto ("Protective Order") shall govern any document, information or other thing furnished by any party, to any other party, and includes non-parties who receive a subpoena in connection with this action. The information protected includes, but is not limited to, answers to interrogatories, answers to requests for admission, responses to requests for production of documents, deposition transcripts and videotapes, deposition exhibits, and other writings or things produced, given or filed in this action that are designated by a party as "Confidential, " "Confidential-Outside Attorney Eyes Only, " or "Restricted-Confidential Source Code" in accordance with the terms of this Order, as well as, to the extent allowed under the provisions of this order, any copies, excerpts, abstracts, analyses, summaries, descriptions, or other forms of recorded information containing, reflecting, or disclosing such information.
Designation and Maintenance of Information.
2. For purposes of this Protective Order, (a) the "Confidential" designation shall mean that the material is comprised of confidential trade secrets or commercial information which is not publicly known and is of technical or commercial advantage to its possessor, in accordance with Fed.R.Civ.P. 26(c)(7), or other information required by law or agreement to be kept confidential, (b) the "Confidential Outside Attorney Eyes Only" designation shall mean that the document is comprised of information that the producing party deems especially sensitive, which may include, but is not limited to, confidential research and development, financial, data security, technical, marketing, any other sensitive trade secret information, or information capable of being utilized for the preparation or prosecution of a patent application dealing with such subject matter, and (c) the "Restricted-Confidential Source Code" designation shall mean that the material contains a party's "Source Code, " which shall mean documents containing confidential, proprietary and/or trade secret source code. Materials designated "Confidential, " "Confidential Outside Attorney Eyes Only, " or "Restricted- Confidential Source Code" are collectively referred to as "Protected Information." Protected Information does not include, and this Protective Order shall not apply to, information that is already in the knowledge or possession of the party to whom disclosure is made unless that party is already bound by agreement not to disclose such information, or information that has been disclosed to the public or third persons in a manner making such information no longer confidential and disclosure of any such information shall not be a violation of this Order. Documents and materials marked in a manner similar to any designation of Protected Information shall be treated as "Confidential Outside Attorney Eyes Only, " subject to any written agreement of the parties to otherwise designate the documents and materials in question. No party is required to include in a privilege log documents created after the filing of this case except as provided under N.D. California Patent Local Rule 3-7.
3. Documents and things produced during the course of this litigation within the scope of paragraph 2(a) above, may be designated by the producing party as containing Confidential Information by placing on each page and each thing a legend substantially as follows:
CONFIDENTIAL SUBJECT TO PROTECTIVE ORDER
Documents and things produced during the course of this litigation within the scope of paragraph 2(b) above may be designated by the producing party as containing Confidential Attorney Eyes Only Information by placing on each page and each thing a legend substantially as follows:
CONFIDENTIAL OUTSIDE ATTORNEY EYES ONLY SUBJECT TO PROTECTIVE ORDER
Documents and things produced during the course of this litigation within the scope of paragraph 2(c) above shall be designated and produced in accordance with the provisions set forth in paragraph 4 below.
A party may designate information disclosed at a deposition as Confidential, Confidential Outside Attorney Eyes Only, or Restricted-Confidential Source Code, by requesting the reporter to so designate the transcript or any portion thereof at the time of the deposition. If no such designation is made at the time of the deposition, any party shall have fourteen (14) calendar days after the date of the deposition to designate, in writing to the other parties and to the court reporter, whether the transcript is to be designated as Confidential, Confidential Outside Attorneys Eyes Only, or Restricted-Confidential Source Code. If no such designation is made at the deposition or within such fourteen (14) calendar day period (during which period, the transcript shall be treated as Confidential Outside Attorneys Eyes Only Information, unless the disclosing party consents to less confidential treatment of the information), the entire deposition will be considered devoid of Confidential Information or Confidential Outside Attorneys Eyes Only Information. Each party and the court reporter shall attach a copy of any final and timely written designation notice to the transcript and each copy thereof in its possession, custody or control, and the portions designated in such notice shall thereafter be treated in accordance with this Protective Order.
It is the responsibility of counsel for each party to maintain materials containing Confidential, Confidential Outside Attorneys Eyes Only, or Restricted-Confidential Source Code in a secure manner and appropriately identified so as to allow access to such information only to such persons and under such terms as is permitted under this Protective Order.
4. Protected Information designated "Restricted-Confidential Source Code" shall be designated, reviewed, produced, used, and protected in accordance with the following provisions:
a. Source Code, to the extent any producing party agrees to provide any such information, shall ONLY be made available for inspection, not produced except as provided for below, and shall be made available in electronic format at one of the following locations chosen at the sole discretion of the producing party: (1) if producing party is Defendant - Kutak Rock's office in Omaha; and (2) if the producing party is Intellectual Ventures - Feinberg Day's Menlo Park, offices. The parties may agree to alternative locations. Source Code will be loaded on a single, non-networked computer that is password protected and maintained in a secure, locked area ("Source Code Computer"). Use or possession of any input/output device (e.g., USB memory stick, cameras or any camera-enabled device, CDs, floppy disk, portable hard drive, laptop, smartphone, etc.) is prohibited while accessing the Source Code Computer. The Source Code Computer will be made available for inspection during regular business hours, upon reasonable notice to the producing party, which shall not be less than ten (10) business days in advance of the initial requested inspection, and not less than four (4) business days in advance of any requested inspection thereafter.
b. The receiving party's outside counsel and/or experts may request that commercially available licensed software tools for viewing and searching Source Code be installed on the Source Code Computer. The receiving party must provide the producing party with the CD or DVD containing such software tool(s) at least four (4) business days in advance of the inspection.
c. The receiving party's outside counsel and/or expert shall be entitled to take notes relating to the Source Code but may not copy any portion of the Source Code into these notes. No copies of all or any portion of the Source Code may leave the room in which the Source Code is inspected except as otherwise provided herein. Further, no other written or electronic record of the Source Code is permitted except as otherwise provided herein.
d. No person shall copy, email, transmit, upload, download, print, photograph or otherwise duplicate any portion of the Source Code, except that the receiving party may request a reasonable number of pages of Source Code to be printed by the producing party, but only if and to the extent necessary for use in this action. Within five (5) business days or such additional time as necessary due to volume requested, the producing party will provide the requested material on watermarked or colored paper bearing Bates numbers and, unless objected to as discussed below, the legend:
RESTRICTED CONFIDENTIAL-SOURCE CODE SUBJECT TO PROTECTIVE ORDER
The printed pages shall constitute part of the Source Code produced by the producing party in this action. At the inspecting parties' request, up to two additional sets (or subsets) of printed Source Code may be requested and provided by the producing party in a timely fashion.
e. If the producing party objects that the printed portions are not reasonably necessary to any case preparation activity, the producing party shall make such objection known to the receiving party within five (5) business days. If after meeting and conferring the producing party and the receiving party cannot resolve the objection (where such meet-and-confer need not take place in person), the receiving party may seek a Court resolution of whether the producing party should be required to produce the printed Source Code in question. Contested Source Code print outs need not be produced to the requesting party until the matter is finally resolved by the Court. Failure to object under this provision does not indicate that the producing party concedes the relevance of the printed Source Code to any issue and will not prejudice the producing party's right to raise any objection to the use of that printed Source Code.
f. Any printed pages of Source Code, and any other documents or things reflecting Source Code that have been designated by the producing party as "RESTRICTED CONFIDENTIAL-SOURCE CODE" may not be copied, digitally imaged or otherwise duplicated, except in limited excerpts necessary to attach as exhibits to depositions, expert reports, or court filings as discussed below.
g. Any paper copies designated "RESTRICTED CONFIDENTIAL- SOURCE CODE" shall be stored or viewed only at (1) the offices of outside counsel for the receiving party; (2) the offices of outside experts or consultants who have been approved to access Source Code; (3) the site where any deposition is taken; (4) the Court; or (5) any intermediate location necessary to transport the information to a hearing, trial or deposition. Any such paper copies shall be maintained at all times in a secure location under the direct control of counsel responsible for maintaining the security and confidentiality of the designated materials. Source Code shall be considered export restricted and shall not leave the continental United States for any reason.
h. A list of names of persons who will inspect the Source Code will be provided to the producing party in conjunction with any written (including email) notice requesting inspection. The producing party shall maintain a daily log of the names of persons who enter the locked room to view the Source Code and when they enter and depart. The producing party shall be entitled to have a person observe all entrances and exits from the Source Code viewing room, and to a copy of the log.
i. Unless otherwise agreed in advance by the parties in writing, following each inspection, the receiving party's outside counsel and/or experts shall remove all notes, documents, and all other materials from the room that may contain work product and/or attorney-client privileged information. The producing party shall not be responsible for any items left in the room following each inspection session.
j. The receiving party will not copy, remove, or otherwise transfer any portion of the Source Code from the Source Code Computer including, without limitation, copying, removing, or transferring any portion of the Source Code onto any other computers or peripheral equipment. The receiving party will not transmit any portion of the Source Code in any way from the location of the Source Code inspection.
k. Only the following individuals shall have access to "RESTRICTED CONFIDENTIAL-SOURCE CODE" materials, absent the express written consent of the ...