Court filing
[Proposed] Stipulated Protective Order filed by Plaid Inc. (Wong, Kyle) (Filed on… — Plaid Privacy (Dkt. 106)
Filed May 4, 2020 in Plaid Privacy; one of 174 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of California |
|---|---|
| Filed | 2020-05-04 |
U.S. District Court for the Northern District of California · No. 4:20-cv-03056-DMR · Doc. 106 · 2020-05-04 · Docket on CourtListener
Full text
[PROPOSED] STIPULATED PROTECTIVE
ORDER (NO. 4:20-CV-3056-DMR)
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ATTORNEYS AT LAW
SAN FRANCISCO
HERRERA PURDY LLP
Shawn M. Kennedy (SBN 218472)
skennedy@herrerapurdy.com
Andrew M. Purdy (SBN 261912)
apurdy@herrerapurdy.com
Bret D. Hembd (SBN 272826)
bhembd@herrerapurdy.com
4590 MacArthur Blvd., Suite 500
Newport Beach, CA 92660
Tel: (949) 936-0900
Fax: (855) 969-2050
HERRERA PURDY LLP
Nicomedes Sy Herrera (SBN 275332)
nherrera@herrerapurdy.com
Laura E. Seidl (SBN 269891)
lseidl@herrerapurdy.com
1300 Clay Street, Suite 600
Oakland, CA 94612
Tel: (510) 422-4700
Fax: (855) 969-2050
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
Rachel Geman (Pro Hac Vice)
rgeman@lchb.com
Rhea Ghosh (Pro Hac Vice)
rghosh@lchb.com
250 Hudson Street, 8th Floor
New York, NY 10013-1413
Tel: (212) 355-9500
Fax: (212) 355-9592
Interim Co-Lead Class Counsel
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
Michael W. Sobol (SBN 194857)
msobol@lchb.com
Melissa Gardner (SBN 289096)
mgardner@lchb.com
275 Battery Street, 29th Floor
San Francisco, CA 94111-3339
Tel: (415) 956-1000
Fax: (415) 956-1008
BURNS CHAREST LLP
Warren T. Burns (Pro Hac Vice)
wburns@burnscharest.com
Russell Herman (Pro Hac Vice)
rherman@burnscharest.com
900 Jackson Street, Suite 500
Dallas, TX 75202
Tel: (469) 904-4550
Fax: (469) 444-5002
BURNS CHAREST LLP
Christopher J. Cormier (Pro Hac Vice)
ccormier@burnscharest.com
4725 Wisconsin Avenue, NW, Suite 200
Washington, DC 20016
Tel: (202) 577-3977
Fax: (469) 444-5002
COOLEY LLP
MICHAEL G. RHODES (116127)
(rhodesmg@cooley.com)
101 California Street, 5th Floor
San Francisco, CA 94111-5800
Telephone:
+1 415 693 2000
Facsimile:
+1 415 693 2222
Attorneys for Defendant
Plaid Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
IN RE PLAID INC. PRIVACY LITIGATION
_____________________________________
THIS DOCUMENT RELATES TO:
ALL ACTIONS
Case No. 4:20-cv-03056-DMR
[PROPOSED] STIPULATED PROTECTIVE
ORDER BASED ON MODEL PROTECTIVE
ORDER FOR LITIGATION INVOLVING
PATENTS, HIGHLY SENSITIVE
CONFIDENTIAL INFORMATION
Hon. Judge Donna M. Ryu
Action Filed:
May 4, 2020
Case 4:20-cv-03056-DMR Document 106 Filed 10/30/20 Page 1 of 24
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[PROPOSED] STIPULATED PROTECTIVE
ORDER (NO. 4:20-CV-3056-DMR)
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1.
PURPOSES AND LIMITATIONS
Disclosure and discovery activity in this action are likely to involve production of
confidential, proprietary, or private information for which special protection from public disclosure
and from use for any purpose other than prosecuting this litigation may be warranted. Accordingly,
the Parties hereby stipulate to and petition the Court to enter the following Stipulated Protective
Order. The Parties acknowledge that this Order does not confer blanket protections on all
disclosures or responses to discovery and that the protection it affords from public disclosure and
use extends only to the limited information or items that are entitled to confidential treatment under
the applicable legal principles. The Parties further acknowledge, as set forth in Section 14.3, below,
that this Stipulated Protective Order does not entitle them to file confidential information under
seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards that
will be applied when a Party seeks permission from the Court to file material under seal.
2.
DEFINITIONS
2.1
Challenging Party: a Party or Non-Party that challenges the designation of
information or items under this Order.
2.2
“CONFIDENTIAL” Information or Items: information (regardless of how it is
generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
of Civil Procedure 26(c).
2.3
Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well
as their support staff).
2.4
Designated House Counsel: House Counsel who seek access to “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter.
2.5
Designating Party: a Party or Non-Party that designates information or items that it
produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
CODE”.
2.6
Disclosure or Discovery Material: all items or information, regardless of the
medium or manner in which it is generated, stored, or maintained (including, among other things,
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[PROPOSED] STIPULATED PROTECTIVE
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testimony, transcripts, and tangible things), that are produced or generated in disclosures or
responses to discovery in this matter.
2.7
Expert: a person with specialized knowledge or experience in a matter pertinent to
the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as
a consultant in this action, (2) is not a past or current employee of a Party or of a Party’s competitor,
and (3) at the time of retention, is not anticipated to become an employee of a Party or of a Party’s
competitor.
2.8
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less
restrictive means.
2.9
“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely
sensitive “Confidential Information or Items” representing computer code and associated
comments and revision histories, formulas, engineering specifications, or schematics that define or
otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure
of which to another Party or Non-Party would create a substantial risk of serious harm that could
not be avoided by less restrictive means. It specifically does not include software development kits
provided to Non-Parties in the ordinary course of business.
2.10
House Counsel: attorneys who are employees of a Party to this action. House
Counsel does not include Outside Counsel of Record or any other outside counsel.
2.11
Non-Party: any natural person, partnership, corporation, association, or other legal
entity not named as a Party to this action.
2.12
Outside Counsel of Record: attorneys who are not employees of a Party to this action
but are retained to represent or advise a Party to this action and have appeared in this action on
behalf of that Party or are affiliated with a law firm which has appeared on behalf of that Party.
2.13
Party: any Party to this action, including all of its officers, directors, employees,
consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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[PROPOSED] STIPULATED PROTECTIVE
ORDER (NO. 4:20-CV-3056-DMR)
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2.14
Producing Party: a Party or Non-Party that produces Disclosure or Discovery
Material in this action.
2.15
Professional Vendors: persons or entities that provide litigation support services
(e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, organizing,
storing, or retrieving data in any form or medium, and professional jury or trial consulting) and
their employees and subcontractors.
2.16
Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or as
“HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to the provisions of this Stipulated
Protective Order.
2.17
Receiving Party: a Party that receives Disclosure or Discovery Material from a
Producing Party.
3.
SCOPE
The protections conferred by this Stipulation and Order cover not only Protected Material
(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
However, the protections conferred by this Stipulation and Order do not cover the following
information: (a) any information that is in the public domain at the time of disclosure to a Receiving
Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of
publication not involving a violation of this Order, including becoming part of the public record
through trial or otherwise; and (b) any information known to the Receiving Party prior to the
disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the
information lawfully and under no obligation of confidentiality to the Designating Party. Any use
of Protected Material at trial shall be governed by a separate agreement or order.
4.
DURATION
Even after final disposition of this litigation, the confidentiality obligations imposed by this
Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order
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[PROPOSED] STIPULATED PROTECTIVE
ORDER (NO. 4:20-CV-3056-DMR)
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otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and
defenses in this action, with or without prejudice; and (2) final judgment herein after the completion
and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action, including the
time limits for filing any motions or applications for extension of time pursuant to applicable law.
5.
DESIGNATING PROTECTED MATERIAL
5.1
Exercise of Restraint and Care in Designating Material for Protection. Each Party
or Non-Party that designates information or items for protection under this Order must take care to
limit any such designation to specific material that qualifies under the appropriate standards. To the
extent it is practical to do so, the Designating Party must designate for protection only those parts
of material, documents, items, or oral or written communications that qualify – so that other
portions of the material, documents, items, or communications for which protection is not
warranted are not swept unjustifiably within the ambit of this Order.
Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown
to be clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily
encumber or retard the case development process or to impose unnecessary expenses and burdens
on other Parties) expose the Designating Party to sanctions.
If it comes to a Designating Party’s attention that information or items that it designated for
protection do not qualify for protection at all or do not qualify for the level of protection initially
asserted, that Designating Party must promptly notify all other Parties that it is withdrawing the
mistaken designation.
5.2
Manner and Timing of Designations. Except as otherwise provided in this Order
(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
Disclosure or Discovery
Material that qualifies for protection under this Order must be clearly so designated before
the material is disclosed or produced, subject to the provisions of section 5.3 below.
Designation in conformity with this Order requires:
(a)
for information in documentary form (e.g., paper or electronic documents,
but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
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Party affix the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains
protected material. If only a portion or portions of the material on a page qualifies for protection
and if practicable to do so, the Producing Party also must clearly identify the protected portion(s)
(e.g., by making appropriate markings in the margins) and must specify, for each portion, the level
of protection being asserted.
A Party or Non-Party that makes original documents or materials available for inspection
need not designate them for protection until after the inspecting Party has indicated which material
it would like copied and produced. During the inspection and before the designation, all of the
material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
copied and produced, the Producing Party must determine which documents, or portions thereof,
qualify for protection under this Order. Then, before producing the specified documents, the
Producing Party must affix the appropriate legend (“CONFIDENTIAL” or “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
CODE) to each page that contains Protected Material. If only a portion or portions of the material
on a page qualifies for protection and if practicable to do so, the Producing Party also must clearly
identify the protected portion(s) (e.g., by making appropriate markings in the margins) and must
specify, for each portion, the level of protection being asserted.
(b)
for testimony given in deposition or in other pretrial or trial proceedings, that
the Designating Party identify on the record, before the close of the deposition, hearing, or other
proceeding, all protected testimony and specify the level of protection being asserted. When it is
impractical to identify separately each portion of testimony that is entitled to protection and it
appears that substantial portions of the testimony may qualify for protection, the Designating Party
may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
to have up to 21 days to identify the specific portions of the testimony as to which protection is
sought and to specify the level of protection being asserted. Only those portions of the testimony
that are appropriately designated for protection within the 21 days shall be covered by the
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provisions of this Stipulated Protective Order. Alternatively, a Designating Party may specify, at
the deposition or up to 21 days afterwards if that period is properly invoked, that the entire transcript
shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”
Parties shall give the other Parties notice if they reasonably expect a deposition, hearing or
other proceeding to include Protected Material so that the other Parties can ensure that only
authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A) are present at those proceedings. Notwithstanding the foregoing sentence, this advance
notice requirement shall be deemed satisfied as to particular Protected Material for purposes of a
Court hearing or conference where such Protected Material has already been submitted as evidence
or otherwise entered into the record for that hearing or conference, for example as an exhibit to the
motion being heard. The use of a document as an exhibit at a deposition shall not in any way affect
its designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY.”
Transcripts containing Protected Material shall have an obvious legend on the title page that
the transcript contains Protected Material, and the title page shall be followed by a list of all pages
(including line numbers as appropriate) that have been designated as Protected Material and the
level of protection being asserted by the Designating Party. The Designating Party shall inform the
Court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-
day period for designation shall be treated during that period as if it had been designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise agreed. After
the expiration of that period, the transcript shall be treated only as actually designated.
(c)
for information produced in some form other than documentary and for any
other tangible items, that the Producing Party affix in a prominent place on the exterior of the
container or containers in which the information or item is stored the legend “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL
– SOURCE CODE”. If only a portion or portions of the information or item warrant protection, the
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Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the
level of protection being asserted.
5.3
Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
designate qualified information or items does not, standing alone, waive the Designating Party’s
right to secure protection under this Order for such material. Upon timely correction of a
designation, the Receiving Party must make reasonable efforts to assure that the material is treated
in accordance with the provisions of this Order, and shall return or destroy the improperly
designated material.
5.4
Information Regarding Named Plaintiffs. Defendant shall make a good faith
attempt to designate as “CONFIDENTIAL” all Discovery Material within its possession, custody,
or control that it believes contains sensitive, non-public information regarding the Named Plaintiffs.
6.
CHALLENGING CONFIDENTIALITY DESIGNATIONS
6.1
Timing of Challenges. Any Party or Non-Party may challenge a designation of
confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
challenge a confidentiality designation by electing not to mount a challenge promptly after the
original designation is disclosed.
6.2
Meet and Confer. The Challenging Party shall initiate the dispute resolution process
by providing written notice of each designation it is challenging and describing the basis for each
challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
recite that the challenge to confidentiality is being made in accordance with this specific paragraph
of the Protective Order. The Parties shall attempt to resolve each challenge in good faith and must
begin the process by conferring directly (in voice to voice dialogue; other forms of communication
are not sufficient) within 14 days of the date of service of notice. In conferring, the Challenging
Party must explain the basis for its belief that the confidentiality designation was not proper and
must give the Designating Party an opportunity to review the designated material, to reconsider the
circumstances, and, if no change in designation is offered, to explain the basis for the chosen
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designation. A Challenging Party may proceed to the next stage of the challenge process only if it
has engaged in this meet and confer process first or establishes that the Designating Party is
unwilling to participate in the meet and confer process in a timely manner.
6.3
Judicial Intervention. If the Parties cannot resolve a challenge without Court
intervention, the Parties shall file a joint letter pursuant to procedure set forth in this Court’s
Standing Order Section 13. The burden of persuasion in any such challenge proceeding shall be on
the Designating Party. Frivolous challenges and those made for an improper purpose (e.g., to harass
or impose unnecessary expenses and burdens on other parties) may expose the Challenging Party
to sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
file a motion to retain confidentiality as described above, all parties shall continue to afford the
material in question the level of protection to which it is entitled under the Producing Party’s
designation until the court rules on the challenge.
7.
ACCESS TO AND USE OF PROTECTED MATERIAL
7.1
Basic Principles. A Receiving Party may use Protected Material that is disclosed or
produced by another Party or by a Non-Party in connection with this case only for prosecuting,
defending, or attempting to settle this litigation. Such Protected Material may be disclosed only to
the categories of persons and under the conditions described in this Order.1 When the litigation has
been terminated, a Receiving Party must comply with the provisions of section 15 below (FINAL
DISPOSITION).
Protected Material must be stored and maintained by a Receiving Party at a location and in
a secure manner2 that ensures that access is limited to the persons authorized under this Order.
Protected Material shall not be copied or otherwise reproduced by a Receiving Party, except for
1 In the event a Non-Party witness is authorized to receive Protected Material that is to be used
during his/her deposition but is represented by an attorney not authorized under this Order to
receive such Protected Material, the attorney must provide, prior to commencement of the
deposition, an executed “Acknowledgment and Agreement to Be Bound” in the form attached
hereto as Exhibit A. In the event such attorney declines to sign the “Acknowledgment and
Agreement to Be Bound” prior to the examination, the deposition shall proceed, but the Parties,
by their attorneys, shall jointly seek a protective order from the Court prohibiting the attorney
from disclosing Protected Material, and shall make reasonable efforts to obtain such an order
prior to the deposition..
2 It may be appropriate under certain circumstances to require the Receiving Party to store any
electronic Protected Material in password-protected form.
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transmission to qualified recipients, without the written permission of the Producing Party or by
further order of the Court.
7.2
Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any
information or item designated “CONFIDENTIAL” only to:
(a)
the Receiving Party’s Outside Counsel of Record in this action, as well as
employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
information for this litigation and who have signed the “Acknowledgment and Agreement to Be
Bound” that is attached hereto as Exhibit A;
(b)
the officers, directors, and employees (including House Counsel) of the
Receiving Party to whom disclosure is reasonably necessary for this litigation and who have signed
the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
(c)
Experts (as defined in this Order) of the Receiving Party to whom disclosure
is reasonably necessary for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A);
(d)
the Court and its personnel;
(e)
Court reporters, videographers and their staff, professional jury or trial
consultants, mock jurors or focus-group participants,3 and Professional Vendors to whom
disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment
and Agreement to Be Bound” (Exhibit A);
(f)
during their depositions, witnesses in the action to whom disclosure is
reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
(Exhibit A), unless otherwise agreed by the Designating Party or ordered by the court. Pages of
transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be
3 In no event may mock jurors or focus-group participants retain or possess any copies, abstracts,
compilations, summaries or any other format reproducing or capturing any Protected Material (1)
after the mock trial or focus-group is completed, or (2) outside the facility where the mock trial or
focus-group is conducted.
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separately bound by the Court reporter and may not be disclosed to anyone except as permitted
under this Stipulated Protective Order.
(g)
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or personally knew or knows the information.
7.3
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
“HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items.
(a)
Unless otherwise ordered by the Court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
(i)
the Receiving Party’s Outside Counsel of Record in this action, as
well as employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A;
(ii)
Designated House Counsel of the Receiving Party to whom
disclosure is reasonably necessary for this litigation, and who has signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A),
(iii)
Experts of the Receiving Party (1) to whom disclosure is reasonably
necessary for this litigation, (2) who have signed the “Acknowledgment and Agreement to
Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph 7.4(a),
below, have been followed; if applicable
(iv)
the Court and its personnel;
(v)
Court reporters, videographers and their staff, professional jury or
trial consultants, mock jurors or focus-group participants, and Professional Vendors to
whom disclosure is reasonably necessary for this litigation and who have signed the
“Acknowledgment and Agreement to Be Bound” (Exhibit A); and
(vi)
the author or recipient of a document containing the information or a
custodian or other person who otherwise possessed or knew the information.
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(b)
Unless otherwise ordered by the Court or permitted in writing by the
Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
CONFIDENTIAL – SOURCE CODE” only to:
(i)
the Receiving Party’s Outside Counsel of Record in this action, as
well as employees of said Outside Counsel of Record to whom it is reasonably necessary to
disclose the information for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A;
(ii)
Up to four Experts of the Receiving Party (1) to whom disclosure is
reasonably necessary for this litigation, (2) who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in
Paragraph 7.4(a), below, have been followed, acknowledging that the Receiving Party may
request in writing the ability to disclose “HIGHLY CONFIDENTIAL – SOURCE CODE”
information or items to additional Experts, but that such disclosure may be made only upon
prior written approval by the Designating Party, which shall not be unreasonably withheld
and shall be given or denied with seven days of any request. If a request is denied the Parties
shall meet and confer within two business days of any such denial and, if agreement cannot
be reached, shall file a joint letter pursuant to the Court’s Standing Order Section 13 within
two business days of the meet and confer;
(iii)
the Court and its personnel;
(iv)
stenographic reporters, videographers and their respective staff who
have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) and are
transcribing or videotaping a deposition wherein “HIGHLY CONFIDENTIAL – SOURCE
CODE” information or items are being discussed, provided that such reporters and
videographers shall not retain or be given copies of any portions of the source code, which,
if used during a deposition, will not be attached as an exhibit to the transcript but instead
shall be identified only by its production.
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7.4
Procedures for Approving or Objecting to Disclosure of “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
CODE” Information or Items to Experts.
(a)
Unless otherwise ordered by the Court or agreed to in writing by the
Designating Party, a Party that seeks to disclose to an Expert (as defined in this Order) any
information or item that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” or “HIGHLY CONFIDENTIAL –SOURCE CODE” first must make a written request to
the Designating Party that (1) identifies the general categories of “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –SOURCE CODE” information
that the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the full name of
the Expert and the city and state of his or her primary residence, (3) attaches a copy of the Expert’s
current resume, (4) identifies the Expert’s current employer(s), (5) identifies each person or entity
from whom the Expert has received compensation or funding for work in his or her areas of
expertise or to whom the expert has provided professional services, including in connection with a
litigation, at any time during the preceding five years,4 and (6) identifies (by name and number of
the case, filing date, and location of Court) any litigation in connection with which the Expert has
offered expert testimony, including through a declaration, report, or testimony at a deposition or
trial, during the preceding five years.
(b)
A Party that makes a request and provides the information specified in the
preceding respective paragraphs may disclose the subject Protected Material to the identified Expert
unless, within seven days of delivering the request, the Party receives a written objection from the
Designating Party. Any such objection must set forth in detail the grounds on which it is based.
(c)
A Party that receives a timely written objection must meet and confer with
the Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
agreement within seven days of the written objection. If no agreement is reached, the Party seeking
4 If the Expert believes any of this information is subject to a confidentiality obligation to a third-
Party, then the Expert should provide whatever information the Expert believes can be disclosed
without violating any confidentiality agreements, and the Party seeking to disclose to the Expert
shall be available to meet and confer with the Designating Party regarding any such engagement.
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to make the disclosure to the Expert may initiate the drafting of a joint letter to the Court pursuant
to the Court’s Standing Order Section 13. The Party seeking to make the disclosure to the Expert
must describe the circumstances with specificity, set forth in detail the reasons why the disclosure
or the Expert is reasonably necessary, assess the risk of harm that the disclosure would entail, and
suggest any additional means that could be used to reduce that risk.
In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
outweighs the Receiving Party’s need to disclose the Protected Material to its Expert.
8.
PROSECUTION BAR
Absent written consent from the Producing Party, any individual who receives access to
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL –
SOURCE CODE” information shall not be involved in the prosecution of patents or patent
applications relating to data aggregation, Plaid's Link flow, and/or any of Plaid's products, APIs,
or research and development concepts , including without limitation the patents asserted in this
action and any patent or application claiming priority to or otherwise related to the patents
asserted in this action, before any foreign or domestic agency, including the United States Patent
and Trademark Office (“the Patent Office”). For purposes of this paragraph, “prosecution”
includes directly or indirectly drafting, amending, advising, or otherwise affecting the scope or
maintenance of patent claims.5 To avoid any doubt, “prosecution” as used in this paragraph does
not include representing a Party challenging a patent before a domestic or foreign agency
(including, but not limited to, a reissue protest, ex parte reexamination or inter partes
reexamination). This Prosecution Bar shall begin when access to “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” information
is first received by the affected individual and shall end two (2) years after final termination of
this action.
5 Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.
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9.
SOURCE CODE
(a)
To the extent production of source code becomes necessary in this case, a Producing
Party may designate source code as “HIGHLY CONFIDENTIAL - SOURCE CODE” if it
comprises or includes confidential, proprietary or trade secret source code.
(b)
Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE CODE”
shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – ATTORNEYS’
EYES ONLY” information including the Prosecution Bar set forth in Paragraph 8, and may be
disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and 7.4.
(c)
Any source code produced in discovery shall be made available for inspection in a
format allowing it to be reasonably reviewed and searched, during normal business hours or at other
mutually agreeable times, at a location that is reasonably convenient for the Receiving Party and
any experts to whom the source code may be disclosed. The source code shall be made available
for inspection on a secured computer in a secured room without Internet access or network access
to other computers, and the Receiving Party shall not copy, remove, or otherwise transfer any
portion of the source code onto any recordable media or recordable device. The Producing Party
may visually monitor the activities of the Receiving Party’s representatives during any source code
review, but only to ensure that there is no unauthorized recording, copying, or transmission of the
source code.6
(d)
The Receiving Party may request paper copies of limited portions of source code
that are reasonably necessary for the preparation of Court filings, pleadings, expert reports, or other
papers, or for deposition or trial, but shall not request paper copies for the purposes of reviewing
the source code other than electronically as set forth in paragraph (c) in the first instance. In no
event may the receiving Party print more than 25 consecutive pages, or an aggregate total of more
than 500 pages, of source code during the duration of the case without prior written approval by
the Producing Party, which shall not be unreasonably withheld. The Producing Party shall provide
6 The Receiving Party or its designated agent shall keep a paper log indicating the names of any
individuals inspecting the source code and dates and times of inspection, and the names of any
individuals to whom paper copies of portions of source code are provided.
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all such source code in paper form including bates numbers and the label “HIGHLY
CONFIDENTIAL - SOURCE CODE.” The Producing Party may challenge the amount of source
code requested in hard copy form pursuant to the dispute resolution procedure and timeframes set
forth in Paragraph 6 whereby the Producing Party is the “Challenging Party” and the Receiving
Party is the “Designating Party” for purposes of dispute resolution.
(e)
The Receiving Party shall maintain a record of any individual who has inspected
any portion of the source code in electronic or paper form. The Receiving Party shall maintain all
paper copies of any printed portions of the source code in a secured, locked area and/or permit such
paper copies to be viewed only at (i) the offices of outside counsel for the Receiving Party; (ii) the
offices of outside experts or consultants who have been approved to access source code; (iii) the
site where any deposition is taken; (iv) the Court; or (v) 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. The Receiving Party shall
not create any electronic or other images of the paper copies and shall not convert any of the
information contained in the paper copies into any electronic format. The Receiving Party shall
only make additional paper copies if such additional copies are (1) necessary to prepare Court
filings, pleadings, or other papers (including a testifying expert’s expert report), (2) necessary for
deposition, or (3) otherwise necessary for the preparation of its case. Any paper copies used during
a deposition shall be retrieved by the Producing Party at the end of each day and must not be given
to or left with a Court reporter or any other unauthorized individual.7
10.
PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena issued by a Court, arbitral, administrative, or legislative
body, or with or a Court order issued in other litigation that compels disclosure of any information
7 The nature of the source code at issue in a particular case may warrant additional protections or
restrictions, For example, it may be appropriate under certain circumstances to require the
Receiving Party to provide notice to the Producing Party before including “HIGHLY
CONFIDENTIAL – SOURCE CODE” information in a Court filing, pleading, or expert report.
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or items designated in this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” that Party
must:
(a)
promptly notify in writing the Designating Party. Such notification shall include a
copy of the subpoena or Court order;
(b)
promptly notify in writing the Party who caused the subpoena or order to issue in
the other litigation that some or all of the material covered by the subpoena or order is subject to
this Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and
(c)
cooperate with respect to all reasonable procedures sought to be pursued by the
Designating Party whose Protected Material may be affected.
If the Designating Party timely seeks a protective order, the Party served with the subpoena
or Court order shall not produce any information designated in this action as “CONFIDENTIAL”
or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL
– SOURCE CODE” before a determination by the Court from which the subpoena or order issued,
unless the Party has obtained the Designating Party’s permission. The Designating Party shall bear
the burden and expense of seeking protection in that Court of its confidential material – and nothing
in these provisions should be construed as authorizing or encouraging a Receiving Party in this
action to disobey a lawful directive from another Court.
11.
A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS
LITIGATION
(a)
The terms of this Order are applicable to information produced by a Non-Party in
this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE.” Such
information produced by Non-Parties in connection with this litigation is protected by the remedies
and relief provided by this Order. Nothing in these provisions should be construed as prohibiting a
Non-Party from seeking additional protections.
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(b)
In the event that a Party is required, by a valid discovery request, to produce a Non-
Party’s confidential information in its possession, and the Party is subject to an agreement with the
Non-Party not to produce the Non-Party’s confidential information, then the Party shall:
(i)
promptly notify in writing the Requesting Party and the Non-Party that
some or all of the information requested is subject to a confidentiality agreement with a Non-
Party;
(ii)
promptly provide the Non-Party with a copy of the Stipulated Protective
Order in this litigation, the relevant discovery request(s), and a reasonably specific description of
the information requested; and
(iii)
make the information requested available for inspection by the Non-Party.
(c)
If the Non-Party fails to object or seek a protective order from this Court within 14
days of receiving the notice and accompanying information, the Receiving Party may produce the
Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely
seeks a protective order, the Receiving Party shall not produce any information in its possession or
control that is subject to the confidentiality agreement with the Non-Party before a determination
by the Court.8 Absent a Court order to the contrary, the Non-Party shall bear the burden and expense
of seeking protection in this Court of its Protected Material.
12.
UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected
Material to any person or in any circumstance not authorized under this Stipulated Protective Order,
the Receiving Party must immediately (a) notify in writing the Designating Party of the
unauthorized disclosures, (b) use its best efforts to retrieve all unauthorized copies of the Protected
Material, (c) inform the person or persons to whom unauthorized disclosures were made of all the
terms of this Order, and (d) request such person or persons to execute the “Acknowledgment and
Agreement to Be Bound” that is attached hereto as Exhibit A.
8 The purpose of this provision is to alert the interested Parties to the existence of confidentiality
rights of a Non-Party and to afford the Non-Party an opportunity to protect its confidentiality
interests in this Court.
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13.
PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL
When a Producing Party gives notice to Receiving Parties that certain produced material is
subject to a claim of privilege or other protection, the obligations of the Receiving Parties are
those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision is not intended to
modify whatever procedure may be established in an e-discovery order that provides for
production without prior privilege review. A Producing Party may assert privilege or protection
over produced documents at any time by notifying the Receiving Party in writing of the assertion
of privilege or protection. After being notified, a Party must promptly return or destroy the
specified information and any copies it has and may not sequester, use or disclose the information
until the claim is resolved. This includes a restriction against presenting the information to the
Court for a determination of the claim. In addition, the Receiving Party shall immediately notify
the Producing Party of information that contains privileged matter or attorney work product if
such information appears on its face to have been inadvertently produced. Such information shall
be immediately returned to the Producing Party. Pursuant to Federal Rule of Evidence 502(d) and
(e), the production of a privileged or work-product-protected document is not a waiver of
privilege or protection from discovery in this case or in any other federal or state proceeding. For
example, the mere production of privileged or work-product-protected documents in this case as
part of a mass production is not itself a waiver in this case or any other federal or state
proceeding.
14.
MISCELLANEOUS
14.1
Right to Further Relief. Nothing in this Order abridges the right of any person to
seek its modification by agreement with other Parties or by the Court in the future. Furthermore,
without application to the Court, any Party or Non-Party that is a beneficiary of the protections of
this Order may enter a written agreement releasing any other Party or Non-Party hereto from one
or more requirements of this Order even if the conduct subject to the release would otherwise
violate the terms herein.
14.2
Right to Assert Other Objections. By stipulating to the entry of this Protective Order
no Party waives any right it otherwise would have to object to disclosing or producing any
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information or item on any ground not addressed in this Stipulated Protective Order. Similarly, no
Party waives any right to object on any ground to use in evidence of any of the material covered by
this Protective Order.
14.3
Export Control. Disclosure of Protected Material shall be subject to all applicable
laws and regulations relating to the export of technical data contained in such Protected Material,
including the release of such technical data to foreign persons or nationals in the United States or
elsewhere. The Producing Party shall be responsible for identifying any such controlled technical
data, and the Receiving Party shall take measures necessary to ensure compliance.
14.4
Filing Protected Material. Without written permission from the Designating Party
or a Court order secured after appropriate notice to all interested persons, a Party may not file in
the public record in this action any Protected Material. A Party that seeks to file under seal any
Protected Material must comply with Civil Local Rule 79-5. Protected Material may only be filed
under seal pursuant to a Court order authorizing the sealing of the specific Protected Material at
issue. Pursuant to Civil Local Rule 79-5, a sealing order will issue only upon a request establishing
that the Protected Material at issue is privileged, protectable as a trade secret, or otherwise entitled
to protection under the law. If a Receiving Party's request to file Protected Material under seal
pursuant to Civil Local Rule 79-5(e) is denied by the Court, then the Receiving Party may file the
Protected Material in the public record pursuant to Civil Local Rule 79-5(e)(2) unless otherwise
instructed by the Court.
14.5
Agreement Upon Execution. Each of the Parties agrees to be bound by the terms of
this Stipulated Protective Order as of the date counsel for such Party executes this Stipulated
Protective Order, even if prior to entry of this Order by the Court.
15. FINAL DISPOSITION
Within 60 days after the final disposition of this action, as defined in paragraph 4, each
Receiving Party must return all Protected Material to the Producing Party or destroy such material.
As used in this subdivision, “all Protected Material” includes all copies, abstracts, compilations,
summaries, and any other format reproducing or capturing any of the Protected Material. Whether
the Protected Material is returned or destroyed, the Receiving Party must submit a written
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certification to the Producing Party (and, if not the same person or entity, to the Designating Party)
by the 60-day deadline that (1) identifies (by category, where appropriate) all the Protected Material
that was returned or destroyed and (2) affirms that the Receiving Party has not retained any copies,
abstracts, compilations, summaries or any other format reproducing or capturing any of the
Protected Material. Notwithstanding this provision, Counsel are entitled to retain an archival copy
of all pleadings, motion papers, trial, deposition, and hearing transcripts, legal memoranda,
correspondence, deposition and trial exhibits, expert reports, attorney work product, and consultant
and expert work product, even if such materials contain Protected Material. Any such archival
copies that contain or constitute Protected Material remain subject to this Protective Order as set
forth in Section 4 (DURATION).
IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
Dated: October 30, 2020
COOLEY LLP
By: /s/ Kyle C.Wong
Kyle C. Wong
Attorneys for Defendant
Plaid Inc.
Dated: October 30, 2020
HERRERA PURDY LLP
By: /s/ Shawn M. Kennedy
Shawn M. Kennedy
Attorneys for Interim Co-Lead Class Counsel
Dated: October 30, 2020
LIEFF CABRASER HEIMANN &
BERNSTEIN, LLP
By: /s/ Michael W. Sobo
Michael W. Sobo
Attorneys for Interim Co-Lead Class Counsel
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October 30, 2020
BURNS CHAREST LLP
By: /s/ Warren T. Burns
Warren T. Burns
Attorneys for Interim Co-Lead Class Counsel
ATTESTATION OF CONCURRENCE IN FILING
In accordance with N.D. Cal. LR 5-1(i)(3), I hereby attest that I have obtained the
concurrence of all other signatories in the filing of this document.
Dated: October 30, 2020
COOLEY LLP
By:
/s/ Kyle C. Wong
Kyle C. Wong
Attorneys for Defendant
Plaid Inc.
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PROPOSED ORDER
Pursuant to Stipulation, it is so ordered.
Dated: ______________
____________________________________
Honorable Donna M. Ryu
United States District Court Judge
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EXHIBIT A
ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
I, _____________________________ [print or type full name], of _________________
[print or type full address], declare under penalty of perjury that I have read in its entirety and
understand the Stipulated Protective Order that was issued by the United States District Court for
the Northern District of California on [date] in the case of In re Plaid Inc. Privacy Litigation, No.
4:20-CV-03056-DMR. I agree to comply with and to be bound by all the terms of this Stipulated
Protective Order and I understand and acknowledge that failure to so comply could expose me to
sanctions and punishment in the nature of contempt. I solemnly promise that I will not disclose in
any manner any information or item that is subject to this Stipulated Protective Order to any person
or entity except in strict compliance with the provisions of this Order.
I further agree to submit to the jurisdiction of the United States District Court for the
Northern District of California for the purpose of enforcing the terms of this Stipulated Protective
Order, even if such enforcement proceedings occur after termination of this action.
I hereby appoint __________________________ [print or type full name] of
_______________________________________ [print or type full address and telephone number]
as my California agent for service of process in connection with this action or any proceedings
related to enforcement of this Stipulated Protective Order.
Date: _________________________________
City and State where sworn and signed: _________________________________
Printed name: ______________________________
[printed name]
Signature: __________________________________
[signature]
237183378 v1
Case 4:20-cv-03056-DMR Document 106 Filed 10/30/20 Page 24 of 24File and source
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