Netskope, Inc. v. Fortinet, Inc.

PROTECTIVE ORDER
CASE NO. 4:25-CV-02360-HSG
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Thomas N. Millikan, Bar No. 234430
TMillikan@perkinscoie.com
Joseph P. Reid, Bar No. 211082
JReid@perkinscoie.com
Sarah Mae Anderson, Bar No. 359690
SarahAnderson@perkinscoie.com
PERKINS COIE LLP
11452 El Camino Real, Ste 300
San Diego, California 92130-2080
Telephone: +1.858.720.5700
Facsimile: +1.858.720.5799
Andrew N. Klein, Bar No. 300221
AKlein@perkinscoie.com
PERKINS COIE LLP
3150 Porter Drive
Palo Alto, California 94304-1212
Telephone: +1.650.838.4300
Facsimile: +1.650.838.4350
Attorneys for Plaintiff Netskope, Inc.
Ryan Iwahashi (CA SBN 284766)
ryan@gishpllc.com
GISH PLLC
50 California Street, Suite 1500
San Francisco, CA 94111
Phone: (415) 630-2000
Andrew D. Gish (NY SBN 4918454)
(pro hac vice)
andrew@gishpllc.com
Christopher Gerson (NY SBN 4595708)
(pro hac vice)
chris.gerson@gishpllc.com
GISH PLLC
41 Madison Avenue, Floor 31
New York, NY 10010
Phone: (212) 518-7380
Attorneys for Defendant Fortinet, Inc.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
OAKLAND DIVISION
NETSKOPE, INC.,
Plaintiff,
v.
FORTINET, INC.,
Defendant.
Case No. 4:25-cv-02360-HSG
PROTECTIVE ORDER
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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 14.4,
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”, “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, testimony,
transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in
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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.
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).
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, and organizing, storing, or
retrieving data in any form or medium) and their employees and subcontractors.
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2.16 	Protected Material: any Disclosure or Discovery Material that is designated as
“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or as “HIGHLY
CONFIDENTIAL – SOURCE CODE.”
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 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
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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.
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 Party affix the legend
“CONFIDENTIAL”, “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, 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
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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”, “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, 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.
Documents and things produced or made available for inspection may be subject to redaction, in
good faith by the Producing Party, of information that is subject to the attorney client privilege, work-
product immunity, or any other applicable privilege or immunity. Each such redaction, regardless of size,
shall be clearly labeled “Redacted – Privileged.” This Paragraph shall not be construed as a waiver of any
Party’s right to seek disclosure of redacted information. The parties agree that neither party shall be
required to log any documents, communications, or other material that is subject to the attorney client
privilege, work-product immunity, or any other applicable privilege or immunity that was generated after
this litigation commenced.
(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 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.”
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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. 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 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.
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
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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 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 Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in
compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or
within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute,
whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that the
movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure
by the Designating Party to make such a motion including the required declaration within 21 days (or 14
days, if applicable) shall automatically waive the confidentiality designation for each challenged
designation. In addition, the Challenging Party may file a motion challenging a confidentiality designation
at any time if there is good cause for doing so, including a challenge to the designation of a deposition
transcript or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a
competent declaration affirming that the movant has complied with the meet and confer requirements
imposed by the preceding paragraph.
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The burden of persuasion in any such challenge proceeding shall be on the Designating 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. 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
manner 1 that ensures that access is limited to the persons authorized under this Order.
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);
1 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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(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 and their staff, professional jury or trial consultants, 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 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 knew the information.
Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
CONFIDENTIAL – SOURCE CODE” 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 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or “HIGHLY
CONFIDENTIAL – SOURCE CODE” 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) 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)(2), below, have been followed;
(c) the court and its personnel;
(d) court reporters and their staff, professional jury or trial consultants, and Professional Vendors to
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whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and
Agreement to Be Bound” (Exhibit A); and
(e) the author or recipient of a document containing the information or a custodian or other person
who otherwise possessed or knew the information.
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” pursuant to paragraph 7.3(b) 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,2 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. 3
(b) A Party that makes a request and provides the information specified in the preceding respective
2 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.
3 It may be appropriate in certain circumstances to restrict the Expert from undertaking certain limited work prior to
the termination of the litigation that could foreseeably result in an improper use of the Designating Party’s “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE”
information.
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paragraphs may disclose the subject Protected Material to the identified Designated House Counsel or
Expert unless, within 14 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 to make the disclosure to Designated
House Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with
Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any such motion must
describe the circumstances with specificity, set forth in detail the reasons why the disclosure to Designated
House Counsel 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 addition, any such motion
must be accompanied by a competent declaration describing the parties’ efforts to resolve the matter by
agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth the reasons
advanced by the Designating Party for its refusal to approve the disclosure.
In any such proceeding, the Party opposing disclosure to Designated House Counsel or 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 Designated House
Counsel or 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 network
security, 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”).4 For
4 It may be appropriate under certain circumstances to require Outside and House Counsel who receive access to
“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information to implement an “Ethical Wall.”
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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.
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, with the exception of Designated House Counsel.6
(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 an office of the Producing Party’s counsel or another mutually agreed upon location.7
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
5 Prosecution includes, for example, original prosecution, reissue and reexamination proceedings.
6 It may be appropriate under certain circumstances to allow House Counsel access to derivative materials including
“HIGHLY CONFIDENTIAL - SOURCE CODE” information, such as exhibits to motions or expert reports.
7 Any source code produced in discovery shall be made available for inspection in a format through which it could be
reasonably reviewed and searched during normal business hours or 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. This
alternative may be appropriate if the Producing Party and/or its counsel are located in a different jurisdiction than
counsel and/or experts for the Receiving Party.
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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. 8
(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. The Producing Party shall provide 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. 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.
10. 	PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
LITIGATION
If a Party is served with a subpoena or a court order issued in other litigation that compels
8 It may be appropriate under certain circumstances to require the Receiving Party to 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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disclosure of any information or items designated in this action as “CONFIDENTIAL,” “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.9
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,”
“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,” “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
9 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to
afford the Designating Party in this case an opportunity to try to protect its confidentiality interests in the court from
which the subpoena or order issued.
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seeking additional protections.
(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:
1. 	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;
2. 	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
3. 	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.10 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.
10 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. 	INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
MATERIAL
When a Producing Party gives notice to Receiving Parties that certain inadvertently
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).11 The
inadvertent production by a Party of Discovery Material subject to the attorney-client privilege,
work-product protection, or any other applicable privilege or protection will not waive the
applicable privilege and/or protection, including in this Litigation or in any other federal or state
proceeding. This provision constitutes an Order under Federal Rule of Evidence 502(d). Upon
discovery of the inadvertent production of Discovery Material over which a privilege or protection
is claimed, a Producing Party may promptly request the return of such inadvertently produced
Discovery Material. Upon a request from any Producing Party who has inadvertently produced
Discovery Material that it believes is privileged and/or protected, the Receiving Party shall
immediately destroy or return such Discovery Material and all copies to the Producing Party and
certify compliance.
To the extent a Receiving Party disputes the claim of privilege or work-product protection
(the “Disputing Party”), the Disputing Party shall notify in writing the Producing Party of its
position within thirty (30) days of receiving the Inadvertent Disclosure Notice (a “Dispute
Notification”). Within seven (7) days of receiving the Dispute Notification, the Producing Party
shall either withdraw its claim of privilege or confer with the Disputing Party in an effort to
resolve their disagreement. If no such resolution is reached, the Disputing Party may apply to the
Court for a ruling on the Producing Party’s claim of privilege. In arguing issues concerning
protection for material claimed to constitute Privileged Material, no Party shall assert as a basis for
the relief it seeks (including if a Receiving Party seeks a ruling that the disclosed information was
never privileged) the fact or circumstance that such documents have already been inadvertently
11 The parties may agree that the recipient of an inadvertent production may not “sequester” or in any way use the
document(s) pending resolution of a challenge to the claim of privilege or other protection to the extent it would be
otherwise allowed by Federal Rule of Civil Procedure 26(b)(5)(B) as amended in 2006. This could include a
restriction against “presenting” the document(s) to the court to challenge the privilege claim as may otherwise be
allowed under Rule 26(b)(5)(B) subject to ethical obligations.
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produced in the above-captioned action. However, the Receiving Party must comply with the
provisions of Federal Rule of Civil Procedure 26(b)(5)(B) regardless of whether it disputes the
claim of privilege or work-product protection.
14. 	MISCELLANEOUS
14.1 	Right to Further Relief. Nothing in this Order abridges the right of any person to seek its
modification by the court in the future.
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 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 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 unless otherwise instructed by the court.
14.5 	Exchange of Redacted Copies of Protected Material. If a Party files a motion or brief, or
serves an expert report, that contains Protected Material designated by the filing Party as “HIGHLY
CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” within three business days of the filing, the filing
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Party will provide a redacted version of the motion, brief, or expert report that can be shared with House
Counsel of the non-filing Party. The Parties may extend this three business day period by agreement.
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 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).
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IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD.
DATED: September 26, 2025 	/s/ Andrew N. Klein
Andrew N. Klein
PERKINS COIE LLP
Attorneys for Plaintiff
DATED: September 26, 2025 	/s/ Christopher Gerson
Christopher Gerson
GISH PLLC
Attorneys for Defendant
DATED: ________________ 	_____________________________________
Haywood S. Gilliam, Jr.
United States District Judge
12/1/2025
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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 ___________ [insert formal name of the case and the number and
initials assigned to it by the court]. 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]
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