MR Technologies, GMBH v. Western Digital Technologies, Inc.

Opinion

Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 1 of 24 Page ID #:240

1 STEVE HANLE, SBN. 168876 MARC A. FENSTER, SBN. 181067 shanle@stradlinglaw.com mafenster@raklaw.com 2 SALIL BALI, State Bar No. 263001 REZA MIRZAIE, SBN. 246953 sbali@stradlinglaw.com rmirzaie@raklaw.com RAUTH 12424 Wilshire Blvd., 12th Floor 4 A PROFESSIONAL CORPORATION Los Angeles, CA 90025 660 Newport Center Drive, Suite 1600 Tel: (310) 826-7474 5 Newport Beach, CA 92660-6422 Fax: (310) 826-6991 Tel: 949 725 4000 6 Fax: 949 725 4100 Attorneys for Plaintiff, Mr. Technologies, GMBH 7 Attorney for Defendant, 8 Western Digital Technologies, Inc. 12 MR. TECHNOLOGIES, GMBH,, CASE NO.: CASE NO. 8:22-cv-01599- JVS-DFM 13 Plaintiff, [XPXRXOXPXOXSEXDX] STIPULATED 14 vs. PROTECTIVE ORDER 15 WESTERN DIGITAL Judge: District Judge James V. Selna TECHNOLOGIES, INC., Magistrate Judge Douglas F. McCormick 16 Defendant. Complaint Filed: August 26, 2022 17 18 19 20 21 22 23 24 25 26 27 28 STRADLING YOCCA CARLSON & RAUTH LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 2 of 24 Page ID #:241

1 1. PURPOSE AND CAUSE 2 1.1. Purposes And Limitations 3 Discovery in this action is likely to involve production of confidential, 4 proprietary, or private information for which special protection from public 5 disclosure and from use for any purpose other than prosecuting this litigation may 6 be warranted. Accordingly, the parties hereby stipulate to and petition the Court to 7 enter the following Stipulated Protective Order. The parties acknowledge that this 8 Order does not confer blanket protections on all disclosures or responses to 9 discovery and that the protection it affords from public disclosure and use extends 10 only to the limited information or items that are entitled to confidential treatment 11 under the applicable legal principles. The parties further acknowledge, as set forth 12 in Section 13.3, below, that this Stipulated Protective Order does not entitle them 13 to file confidential information under seal; Civil Local Rule 79-5 sets forth the 14 procedures that must be followed and the standards that will be applied when a 15 party seeks permission from the court to file material under seal. 16 1.2. Good Cause Statement 17 This action is likely to involve trade secrets, confidential technical 18 information, financial revenue and profit information, marketing strategies, and 19 other valuable research, development, commercial, financial, technical and/or 20 proprietary information for which special protection from public disclosure and 21 from use for any purpose other than prosecution of this action is warranted. Such 22 confidential and proprietary materials and information may consist of, among other 23 things, confidential business or financial information, information regarding 24 confidential business practices, source code, technical specifications, or other 25 confidential research, development, or commercial information (including 26 information implicating privacy rights of third parties), information otherwise 27 generally unavailable to the public, or which may be privileged or otherwise 28 protected from disclosure under state or federal statutes, court rules, case decisions, STRADLING YOCCA -1- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 3 of 24 Page ID #:242

1 or common law. The public disclosure of such information could competitively 2 harm the Parties. 3 Accordingly, to expedite the flow of information, to facilitate the prompt 4 resolution of disputes over confidentiality of discovery materials, to adequately 5 protect information the Parties are entitled to keep confidential, to ensure that the 6 Parties are permitted reasonable necessary uses of such material in preparation for 7 and in the conduct of trial, to address their handling at the end of the litigation, and 8 serve the ends of justice, a protective order for such information is justified in this 9 matter. It is the intent of the Parties that information will not be designated as 10 confidential for tactical reasons and that nothing be so designated without a good 11 faith belief that it has been maintained in a confidential, non-public manner, and 12 there is good cause why it should not be part of the public record of this case. 13 Additionally, based on the nature of the information that may be relevant, 14 there is a need for a two-tiered protective order that designates certain material 15 “CONFIDENTIAL” and other material as “HIGHLY CONFIDENTIAL – 16 ATTORNEYS’ EYES ONLY”. See Elements Spirits, Inc. v. Iconic Brands, Inc., 17 Civ. No. CV 15-02692 DDP(AGRx), 2016 WL 2642206, at *1–*2 (C.D. Cal. May 18 9, 2016) (holding that protective order with attorneys’ eyes only designation was 19 warranted to protect party’s confidential information) (citing Nutratech, Inc. v. 20 Syntech Int’l, Inc., 242 F.R.D. 552, 555 (C.D. Cal. 2008); Brown Bag Software v. 21 Symantec Corp., 960 F.2d 1465, 1470 (9th Cir. 1992)). 22 2. DEFINITIONS 23 2.1. Action: MR Technologies, GMBH v. Western Digital Technologies, 24 Inc., Case No. 8:22-cv-01599-JVS-DFMx. 25 2.2. Challenging Party: a Party or Non-Party that challenges the 26 designation of information or items under this Order. 27 2.3. “CONFIDENTIAL” Information or Items: information (regardless of 28 how it is generated, stored or maintained) or tangible things that qualify for STRADLING YOCCA -2- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 4 of 24 Page ID #:243

1 protection under Federal Rule of Civil Procedure 26(c). 2 2.4. Counsel (without qualifier): Outside Counsel of Record and House 3 Counsel (as well as their support staff). 4 2.5. Designated House Counsel: House Counsel who seek access to 5 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this 6 matter. 7 2.6. Designating Party: a Party or Non-Party that designates information 8 or items that it produces in disclosures or in responses to discovery as 9 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 10 ONLY.” 11 2.7. Disclosure or Discovery Material: all items or information, regardless 12 of the medium or manner in which it is generated, stored, or maintained (including, 13 among other things, testimony, transcripts, and tangible things), that are produced 14 or generated in disclosures or responses to discovery in this matter. 15 2.8. Expert: a person with specialized knowledge or experience in a 16 matter pertinent to the litigation who (1) has been retained by a Party or its counsel 17 to serve as an expert witness or as a consultant in this action, (2) is not a past or 18 current employee of a Party or of a Party’s competitor, and (3) at the time of 19 retention, is not anticipated to become an employee of a Party or of a Party’s 20 competitor. 21 2.9. “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” 22 Information or Items: extremely sensitive “Confidential Information or Items,” 23 disclosure of which to another Party or Non-Party would create a substantial risk of 24 serious harm that could not be avoided by less restrictive means. Subject to such 25 qualifier, such information may fall into one or more of the following categories: 26 business plans, business development, product development, product designs, 27 engineering information, product specifications, software, trade secrets, market 28 analysis, competitor analysis, customer information, vendor information, internal STRADLING YOCCA -3- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 5 of 24 Page ID #:244

1 financial/accounting information, operations information, production information, 2 distributor agreements, license agreements, development agreements, sales 3 agreements, pricing information, cost information, and information regarding 4 business relationships with third parties. 5 2.10. House Counsel: attorneys who are employees of a party to this 6 Action. House Counsel does not include Outside Counsel of Record or any other 7 outside counsel. 8 2.11. Non-Party: any natural person, partnership, corporation, association, 9 or other legal entity not named as a Party to this action. 10 2.12. Outside Counsel of Record: attorneys who are not employees of a 11 party to this Action but are retained to represent or advise a party to this Action 12 and have appeared in this Action on behalf of that party or are affiliated with a law 13 firm which has appeared on behalf of that party, and includes support staff. 14 2.13. Party: any party to this Action, including all of its officers, directors, 15 employees, retained experts, and Outside Counsel of Record (and their support 16 staffs). 17 2.14. Producing Party: a Party or Non-Party that produces Disclosure or 18 Discovery Material in this Action. 19 2.15. Professional Vendors: persons or entities that provide litigation 20 support services (e.g., photocopying, videotaping, translating, preparing exhibits or 21 demonstrations, and organizing, storing, or retrieving data in any form or medium) 22 and their employees and subcontractors. 23 2.16. Protected Material: any Disclosure or Discovery Material that is 24 designated as “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL - 25 ATTORNEYS’ EYES ONLY.” 26 2.17. Receiving Party: a Party that receives Disclosure or Discovery 27 Material from a Producing Party. 28 STRADLING YOCCA -4- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 6 of 24 Page ID #:245

1 2 3. SCOPE 3 The protections conferred by this Stipulation and Order cover not only 4 Protected Material (as defined above), but also (1) any information copied or 5 extracted from Protected Material; (2) all copies, excerpts, summaries, or 6 compilations of Protected Material; and (3) any testimony, conversations, or 7 presentations by Parties or their Counsel that might reveal Protected Material. 8 However, the protections conferred by this Stipulation and Order do not 9 cover the following information: (a) any information that is in the public domain at 10 the time of disclosure to a Receiving Party or becomes part of the public domain 11 after its disclosure to a Receiving Party as a result of publication not involving a 12 violation of this Order, including becoming part of the public record through trial 13 or otherwise; and (b) any information known to the Receiving Party prior to the 14 disclosure or obtained by the Receiving Party after the disclosure from a source 15 who obtained the information lawfully and under no obligation of confidentiality to 16 the Designating Party. 17 Any use of Protected Material at trial shall be governed by the orders of the 18 trial judge and/or a separate agreement between the Parties. This Order does not 19 govern the use of Protected Material at trial. 20 4. DURATION 21 Even after final disposition of this litigation, the confidentiality obligations 22 imposed by this Order shall remain in effect until a Designating Party agrees 23 otherwise in writing or a court order otherwise directs. 24 Final disposition shall be deemed to be the later of: (1) dismissal of all 25 claims and defenses in this Action, with or without prejudice; or (2) final judgment 26 herein after the completion and exhaustion of all appeals, rehearings, remands, 27 trials, or reviews of this Action, including the time limits for filing any motions or 28 applications for extension of time pursuant to applicable law. STRADLING YOCCA -5- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 7 of 24 Page ID #:246

1 2 5. DESIGNATING PROTECTED MATERIAL 3 5.1. Exercise of Restraint and Care in Designating Material for Protection. 4 Each Party or Non-Party that designates information or items for protection under 5 this Order must take care to limit any such designation to specific material that 6 qualifies under the appropriate standards. To the extent it is practical to do so, the 7 Designating Party must designate for protection only those parts of material, 8 documents, items, or oral or written communications that qualify – so that other 9 portions of the material, documents, items, or communications for which 10 protection is not warranted are not swept unjustifiably within the ambit of this 11 Order. 12 Mass, indiscriminate, or routinized designations are prohibited. 13 Designations that are shown to be clearly unjustified or that have been made for an 14 improper purpose (e.g., to unnecessarily encumber the case development process 15 or to impose unnecessary expenses and burdens on other parties) may expose the 16 Designating Party to sanctions. 17 If it comes to a Designating Party’s attention that information or items that it 18 designated for protection do not qualify for protection at all or do not qualify for 19 the level of protection initially asserted, that Designating Party must promptly 20 notify all other Parties that it is withdrawing the inapplicable designation. 21 5.2. Manner and Timing of Designations. Except as otherwise provided in 22 this Order (see, e.g., second paragraph of Section 5.2(a) below), or as otherwise 23 stipulated or ordered, Disclosure or Discovery Material that qualifies for protection 24 under this Order must be clearly so designated before the material is disclosed or 25 produced. 26 Designation in conformity with this Order requires: 27 (a) for information in documentary form (e.g., paper or electronic 28 documents, but excluding transcripts of depositions or other pretrial or trial STRADLING YOCCA -6- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 8 of 24 Page ID #:247

1 proceedings), that the Producing Party affix the legend “CONFIDENTIAL” or 2 “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” to each page that 3 contains protected material. If only a portion or portions of the material on a page 4 qualifies for protection, the Producing Party also must clearly identify the 5 protected portion(s) (e.g., by making appropriate markings in the margins) and 6 must specify, for each portion, the level of protection being asserted. 7 A Party or Non-Party that makes original documents or materials available 8 for inspection need not designate them for protection until after the inspecting 9 Party has indicated which material it would like copied and produced. During the 10 inspection and before the designation, all of the material made available for 11 inspection shall be deemed “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 12 ONLY.” After the inspecting Party has identified the documents it wants copied 13 and produced, the Producing Party must determine which documents, or portions 14 thereof, qualify for protection under this Order. Then, before producing the 15 specified documents, the Producing Party must affix the appropriate legend 16 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 17 ONLY” to each page that contains Protected Material. If only a portion or portions 18 of the material on a page qualifies for protection, the Producing Party also must 19 clearly identify the protected portion(s) (e.g., by making appropriate markings in 20 the margins) and must specify, for each portion, the level of protection being 21 asserted. 22 (b) for testimony given in deposition, that portions or the entirety of a 23 deposition transcript (including exhibits not already designated under this 24 protective order) be designated as “CONFIDENTIAL” or “HIGHLY 25 CONFIDENTIAL—ATTORNEYS’ EYES ONLY” (1) by making a statement to 26 that effect on the record, during the deposition, or (2) by sending to all other 27 parties, the court reporter for the deposition, and all other persons known to the 28 Designating Party to have received a copy of the deposition transcript, on or before STRADLING YOCCA -7- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 9 of 24 Page ID #:248

1 thirty (30) days, or as otherwise agreed by the parties, after being notified by the 2 court reporter that the deposition transcript is available, a letter or other written 3 notice designating the portions or entirety of the transcript with a confidentiality 4 designation. All deposition transcripts and associated exhibits are to be treated 5 presumptively as “HIGHLY CONFIDENTIAL—ATTORNEYS’ EYES ONLY” 6 until the expiration of such thirty-day period. The letter or other notice shall cite 7 this Order, identify the appropriate level of confidentiality, and, if available, 8 identify the pages and lines, and/or exhibits, to be Protected Material. Each copy of 9 the transcript, and portions thereof, so designated shall be marked, by the person 10 receiving the letter or other notice, with a legend indicating the level of 11 confidentiality claimed by the Designating Party and shall be governed by the 12 terms of this Order. If a deposition or portion thereof is designated on the record, 13 during the deposition, as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL— 14 ATTORNEYS’ EYES ONLY,” the deposition shall continue in the absence of all 15 persons to whom access to the Protected Material is not permitted under this Order. 16 The court reporter or videographer shall separately mark any pages of the 17 transcript of the deposition that have been designated to contain Protected 18 Material. Copies of the pages marked as containing Protected Material may be 19 provided only to persons permitted by the other provisions of this Order to receive 20 such Protected Material. The use of a document as an exhibit at a deposition shall 21 not in any way affect its designation as “CONFIDENTIAL” or “HIGHLY 22 CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” 23 Parties shall give the other parties notice if they reasonably expect a 24 deposition to include Protected Material so that the other parties can ensure that 25 only authorized individuals who have signed the “Acknowledgment and 26 Agreement to Be Bound” (Exhibit A) are present at those proceedings. The use of 27 a document as an exhibit at a deposition shall not in any way affect its designation 28 as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES STRADLING YOCCA -8- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 10 of 24 Page ID #:249

1 ONLY.” 2 (c) for information produced in some form other than documentary and 3 for any other tangible items, that the Producing Party affix in a prominent place on 4 the exterior of the container or containers in which the information is stored the 5 legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ 6 EYES ONLY.” If only a portion or portions of the information warrants 7 protection, the Producing Party, to the extent practicable, shall identify the 8 protected portion(s) and specify the level of protection being asserted. 9 (d) for information used during other proceedings (including, but not 10 limited to, hearings, conferences, and oral arguments), that the parties take steps 11 reasonably necessary to protect the confidentiality of the Confidential Information 12 during any such use, including, but not limited to, requesting in camera 13 proceedings. Subject to Section 5.3 infra, if any Protected Material is used in any 14 open Court pretrial proceeding in this litigation other than by the Designating 15 Party, the Protected Material shall not lose its status as Confidential Information 16 through such use. The terms of this Protective Order do not preclude, limit, restrict, 17 or otherwise apply to the use of documents at trial. The parties agree to meet and 18 confer in good faith prior to trial to establish procedures for the use of Confidential 19 Information at trial. 20 5.3. Inadvertent Failures to Designate. If timely corrected, an inadvertent 21 failure to designate qualified information or items does not, standing alone, waive 22 the Designating Party’s right to secure protection under this Order for such 23 material. Upon timely correction of a designation, the Receiving Party must make 24 reasonable efforts to assure that the material is treated in accordance with the 25 provisions of this Order. 26 5.4. Additional Parties. In the event additional Parties join or are joined in 27 this Litigation, they shall not have access to Confidential Discovery Material until 28 the newly joined Party has executed and filed with the Court its agreement to be STRADLING YOCCA -9- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 11 of 24 Page ID #:250

1 bound fully by this Stipulation. 2 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 3 6.1. Timing of Challenges. Any Party or Non-Party may challenge a 4 designation of confidentiality at any time. Unless a prompt challenge to a 5 Designating Party’s confidentiality designation is necessary to avoid foreseeable, 6 substantial unfairness, unnecessary economic burdens, or a significant disruption 7 or delay of the litigation, a Party does not waive its right to challenge a 8 confidentiality designation by electing not to mount a challenge promptly after the 9 original designation is disclosed. 10 6.2. Meet and Confer. The Challenging Party shall initiate the dispute 11 resolution process by providing written notice of each designation it is challenging 12 and describing the basis for each challenge. To avoid ambiguity as to whether a 13 challenge has been made, the written notice must recite that the challenge to 14 confidentiality is being made in accordance with this specific paragraph of the 15 Protective Order. The parties shall attempt to resolve each challenge in good faith, 16 pursuant to Civil Local Rule 37-1. 17 6.3. Judicial Intervention. If the Parties cannot resolve a challenge without 18 court intervention, the Challenging Party shall file and serve a motion to de- 19 designate the material under Civil Local Rules 7 and 37 (and in compliance with 20 Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of 21 challenge or within 14 days of the parties agreeing that the meet and confer process 22 will not resolve their dispute, whichever is earlier. Each such motion must be 23 accompanied by a competent declaration affirming that the movant has complied 24 with the meet and confer requirements imposed in the preceding paragraph. 25 Failure by the Challenging Party to make such a motion including the required 26 declaration within 21 days (or 14 days, if applicable) shall automatically waive the 27 confidentiality designation for each challenged designation. 28 6.4. The burden of persuasion in any such challenge proceeding shall be STRADLING YOCCA -10- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 12 of 24 Page ID #:251

1 on the Designating Party. Frivolous challenges and those made for an improper 2 purpose (e.g., to harass or impose unnecessary expenses and burdens on other 3 parties) may expose the Challenging Party to sanctions. All parties shall continue 4 to afford the material in question the level of protection to which it is entitled under 5 the Producing Party’s designation until the Court rules on the challenge. 6 7. ACCESS TO AND USE OF PROTECTED MATERIAL 7 7.1. Basic Principles. A Receiving Party may use Protected Material that 8 is disclosed or produced by another Party or by a Non-Party in connection with this 9 Action only for prosecuting, defending, or attempting to settle this Action. Such 10 Protected Material may be disclosed only to the categories of persons and under 11 the conditions described in this Order. When the Action has been terminated, a 12 Receiving Party must comply with the provisions of Section 14 below (FINAL 14 Protected Material must be stored and maintained by a Receiving Party at a 15 location and in a secure manner that ensures that access is limited to the persons 16 authorized under this Order. 17 7.2. Disclosure of “CONFIDENTIAL” Information or Items. Unless 18 otherwise ordered by the Court or permitted in writing by the Designating Party, a 19 Receiving Party may disclose any information or item designated 20 “CONFIDENTIAL” only to: 21 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 22 well as employees of Outside Counsel of Record to whom it is reasonably 23 necessary to disclose the information for this Action; 24 (b) the officers, directors, and employees (including House Counsel) of 25 the Receiving Party to whom disclosure is reasonably necessary for this Action and 26 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 27 (c) Experts (as defined in this Order) of the Receiving Party (1) to whom 28 disclosure is reasonably necessary for this Action, (2) who have signed the STRADLING YOCCA -11- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 13 of 24 Page ID #:252

1 “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom 2 the procedures set forth in Section 7.4, below, have been followed; 3 (d) the Court and its personnel; 4 (e) court reporters and their staff; 5 (f) Professional Vendors (including professional jury, trial consultants, or 6 mock jurors) to whom disclosure is reasonably necessary for this Action and who 7 have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A). 8 Signature of the “Acknowledgement and Agreement To Be Bound” by an 9 authorized representative of a Professional Vendor will be construed to encompass 10 all employees of the Professional Vendor; 11 (g) the author or recipient of a document containing the information or a 12 custodian or other person who otherwise possessed or knew the information, an 13 employee of the Designating Party, or a former employee of the Designating Party 14 who was employed at the time the document was created or was in possession of 15 the Designated Party; 16 (h) during their depositions, witnesses, and attorneys for witnesses, in the 17 Action to whom disclosure is reasonably necessary provided that: (1) the witness 18 signs the form attached as Exhibit A hereto; and (2) the witness and attorneys for 19 the witness will not be permitted to keep any confidential information or Protected 20 Material, unless otherwise agreed by the Designating Party or ordered by the 21 Court. Pages of transcribed deposition testimony or exhibits to depositions that 22 reveal Protected Material may be separately bound by the court reporter and may 23 not be disclosed to anyone except as permitted under this Stipulated Protective 24 Order; and 25 (i) any mediator or settlement officer, and their supporting personnel, 26 mutually agreed upon by any of the parties engaged in settlement discussions. 27 7.3. Disclosure of “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 28 ONLY” Information or Items. Unless otherwise ordered by the court or permitted STRADLING YOCCA -12- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 14 of 24 Page ID #:253

1 in writing by the Designating Party, a Receiving Party may disclose any 2 information or item designated “HIGHLY CONFIDENTIAL - ATTORNEYS’ 3 EYES ONLY” only to: 4 (a) the Receiving Party’s Outside Counsel of Record in this Action, as 5 well as employees of said Outside Counsel of Record to whom it is reasonably 6 necessary to disclose the information for this Action; 7 (b) Designated House Counsel of the Receiving Party (1) to whom 8 disclosure is reasonably necessary for this litigation, (2) who has signed the 9 “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as to whom 10 the procedures set forth in Section 7.4, below, have been followed 11 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably 12 necessary for this Action, (2) who have signed the “Acknowledgment and 13 Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth 14 in Section 7.4, below, have been followed; 15 (d) the Court and its personnel; 16 (e) court reporters and their staff; 17 (f) Professional Vendors (including professional jury, or trial consultants, 18 and mock jurors) to whom disclosure is reasonably necessary for this litigation and 19 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A). 20 Signature of the “Acknowledgement and Agreement To Be Bound” by an 21 authorized representative of a Professional Vendor will be construed to encompass 22 all employees of the Professional Vendor; and 23 (g) the author or recipient of a document containing the information or a 24 custodian or other person who otherwise possessed or knew the information, an 25 employee of the Designating Party, or a former employee of the Designating Party 26 who was employed at the time the document was created or was in possession of 27 the Designated Party. 28 7.4. Procedures for Approving or Objecting to Disclosure of STRADLING YOCCA -13- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 15 of 24 Page ID #:254

1 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 2 ONLY” Information or Items to Designated House Counsel or Experts. 3 (a)(1) Unless otherwise ordered by the court or agreed to in writing by 4 the Designating Party, a Party that seeks to disclose to Designated House Counsel 5 any information or item that has been designated “HIGHLY CONFIDENTIAL – 6 ATTORNEYS’ EYES ONLY” pursuant to Section 7.3(b) first must make a written 7 request to the Designating Party that (1) sets forth the full name of the Designated 8 House Counsel and the city and state of his or her residence, and (2) describes the 9 Designated House Counsel’s current and reasonably foreseeable future primary job 10 duties and responsibilities in sufficient detail to determine if such House Counsel is 11 involved, or may become involved, in competitive decision-making in an area 12 where the Receiving Party competes with the Designating Party. 13 (a)(2) Unless otherwise ordered by the court or agreed to in writing by 14 the Designating Party, a Party that seeks to disclose to an Expert (as defined in this 15 Order) any information or item that has been designated “CONFIDENTIAL” 16 pursuant to Section 7.2(c) or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES 17 ONLY” pursuant to Section 7.3(b) first must make a written request to the 18 Designating Party that (1) identifies the general categories of “CONFIDENTIAL” 19 or “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” information that 20 the Receiving Party seeks permission to disclose to the Expert, (2) sets forth the 21 full name of the Expert and the city and state of his or her primary residence, (3) 22 attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current 23 employer(s), (5) identifies each person or entity from whom the Expert has 24 received compensation or funding for work in his or her areas of expertise or to 25 whom the expert has provided professional services, including in connection with a 26 litigation, at any time during the preceding five years, and (6) identifies (by name 27 and number of the case, filing date, and location of court) any litigation in 28 connection with which the Expert has offered expert testimony, including through STRADLING YOCCA -14- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 16 of 24 Page ID #:255

1 a declaration, report, or testimony at a deposition or trial, during the preceding five 2 years. 3 (b) A Party that makes a request and provides the information specified in 4 the preceding respective paragraphs may disclose the subject Protected Material to 5 the identified Designated House Counsel or Expert unless, within seven days of 6 delivering the request, the Party receives a written objection from the Designating 7 Party. Any such objection must set forth in detail the grounds on which it is based. 8 (c) A Party that receives a timely written objection must meet and confer 9 with the Designating Party (through direct voice to voice dialogue) to try to resolve 10 the matter by agreement within seven days of the written objection. If no 11 agreement is reached, the Party seeking to make the disclosure to Designated 12 House Counsel or the Expert may file a motion as provided in Civil Local Rule 7 13 (and in compliance with Civil Local Rule 79-5, if applicable) seeking permission 14 from the court to do so. Any such motion must describe the circumstances with 15 specificity, set forth in detail the reasons why the disclosure to Designated House 16 Counsel or the Expert is reasonably necessary, assess the risk of harm that the 17 disclosure would entail, and suggest any additional means that could be used to 18 reduce that risk. In addition, any such motion must be accompanied by a competent 19 declaration describing the parties’ efforts to resolve the matter by agreement (i.e., 20 the extent and the content of the meet and confer discussions) and setting forth the 21 reasons advanced by the Designating Party for its refusal to approve the disclosure. 22 In any such proceeding, the Party opposing disclosure to Designated House 23 Counsel or the Expert shall bear the burden of proving that the risk of harm that the 24 disclosure would entail (under the safeguards proposed) outweighs the Receiving 25 Party’s need to disclose the Protected Material to its Designated House Counsel or 26 Expert. 27 28 STRADLING YOCCA -15- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 17 of 24 Page ID #:256

1 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED IN 3 If a Party is served with a subpoena or a Court order issued in other litigation 4 that compels disclosure of any information or items designated in this Action as 5 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES 6 ONLY,” that Party must: 7 (a) promptly notify in writing the Designating Party. Such notification 8 shall include a copy of the subpoena or Court order; 9 (b) promptly notify in writing the party who caused the subpoena or order 10 to issue in the other litigation that some or all of the material covered by the 11 subpoena or order is subject to this Stipulated Protective Order. Such notification 12 shall include a copy of this Stipulated Protective Order; and 13 (c) cooperate with respect to all reasonable procedures sought to be 14 pursued by the Designating Party whose Protected Material may be affected. 15 If the Designating Party timely seeks a protective order, the Party served 16 with the subpoena or court order shall not produce any information designated in 17 this action as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 18 ATTORNEYS’ EYES ONLY” before a determination by the Court from which the 19 subpoena or order issued, unless the Party has obtained the Designating Party’s 20 permission. The Designating Party shall bear the burden and expense of seeking 21 protection in that court of its confidential material and nothing in these provisions 22 should be construed as authorizing or encouraging a Receiving Party in this Action 23 to disobey a lawful directive from another Court. The purpose of imposing these 24 duties is to alert the interested parties to the existence of this Protective Order and 25 to afford the Designating Party in this case an opportunity to try to protect its 26 confidentiality interests in the court from which the subpoena or order issued. 27 28 STRADLING YOCCA -16- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 18 of 24 Page ID #:257

1 9. A NON-PARTY’S PROTECTED MATERIAL SOUGHT TO BE 3 (a) The terms of this Order are applicable to information produced by a 4 Non-Party in this Action and designated as “CONFIDENTIAL” or “HIGHLY 5 CONFIDENTIAL - ATTORNEYS’ EYES ONLY.” Such information produced 6 by Non-Parties in connection with this litigation is protected by the remedies and 7 relief provided by this Order. Nothing in these provisions should be construed as 8 prohibiting a Non-Party from seeking additional protections. 9 (b) In the event that a Party is required by a valid discovery request to 10 produce a Non-Party’s confidential information in the Required Party’s possession, 11 and the Required Party is subject to an agreement with the Non-Party not to 12 produce the Non-Party’s confidential information, then the Party shall: 13 (1) promptly notify in writing the Requesting Party and the Non- 14 Party that some or all of the information requested is subject to a confidentiality 15 agreement with a Non-Party; 16 (2) promptly provide the Non-Party with a copy of the Stipulated 17 Protective Order in this Action, the relevant discovery request(s), and a reasonably 18 specific description of the information requested; and 19 (3) make the information requested available for inspection by the 20 Non-Party, if requested. 21 (c) If the Non-Party or the Required Party fails to seek a protective order 22 from this Court within 21 days of receiving the notice and accompanying 23 information (or within the time period allowed in the agreement between the Non- 24 Party and the Required Party if that time period is longer), the Required Party may 25 produce the Non-Party’s confidential information responsive to the discovery 26 request. If the Non-Party timely seeks a protective order, the Required Party shall 27 not produce any information in its possession or control that is subject to the 28 confidentiality agreement with the Non-Party before a determination by the Court. STRADLING YOCCA -17- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 19 of 24 Page ID #:258

1 Absent a Court order to the contrary, the Non-Party shall bear the burden and 2 expense of seeking protection in this Court of its Protected Material. 3 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 4 If a Receiving Party learns that, by inadvertence or otherwise, it has 5 disclosed Protected Material to any person or in any circumstance not authorized 6 under this Stipulated Protective Order, the Receiving Party must immediately: (a) 7 notify in writing the Designating Party of the unauthorized disclosures, (b) use its 8 best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform 9 the person or persons to whom unauthorized disclosures were made of all the terms 10 of this Order, and (d) request such person or persons to execute the 11 “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 12 A. 13 11. INADVERTENT PRODUCTION OF PRIVILEGED OR 15 11.1. Any production of documents subject to the work product doctrine, 16 the attorney-client privilege, the right of privacy, or any other applicable privilege, 17 shall not constitute a waiver of the protection or privilege, provided that the 18 Designating Party shall notify the Receiving Party in writing of such protection or 19 privilege promptly after the Designating Party discovers such materials have been 20 produced. After notification is received, the Receiving Party shall within five (5) 21 business days return to the Designating Party all copies of such documents or 22 destroy them, and shall within five business days of notification confirm in writing 23 that all such copies have been returned or destroyed. 24 11.2. Nothing herein shall prevent the Receiving Party from challenging the 25 propriety of the privilege or protection claimed by promptly filing an appropriate 26 motion with the court. 27 11.3. The parties agree that, except as provided below, the parties will 28 exchange privilege logs on a mutually agreed-upon date. The parties further agree STRADLING YOCCA -18- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 20 of 24 Page ID #:259

1 that attorney-client privileged communications and work-product materials of 2 Outside Counsel of Record in this action that relate to this action are not 3 discoverable and need not be included on a privilege log in this action. 4 11.4. Pursuant to Federal Rule of Evidence 502(d), the inadvertent 5 production of privileged or work product protected ESI is not a waiver in the 6 pending case or in any other federal or state proceeding. And the mere production 7 of ESI in a litigation as part of a mass production shall not itself constitute a waiver 8 for any purpose. 9 12. PROSECUTION BAR 10 Absent written consent from the Producing Party, any individual who 11 receives “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” 12 information shall not be involved in the prosecution of patents or patent 13 applications relating to multilayer magnetic recording media, including without 14 limitation the patents asserted in this Action and any patent or application claiming 15 priority to or otherwise related to the patents asserted in this Action, before any 16 foreign or domestic agency, including the United States Patent and Trademark 17 Office (“the Patent Office”). For purposes of this paragraph, “prosecution” 18 includes directly or indirectly drafting, amending, advising, or otherwise affecting 19 the scope or maintenance of patent claims. To avoid any doubt, “prosecution” as 20 used in this paragraph does not include representing a party challenging a patent 21 before a domestic or foreign agency (including, but not limited to, a reissue protest, 22 ex parte reexamination or inter partes reexamination). This Prosecution Bar shall 23 begin when “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” 24 information is first received by the affected individual and shall end two (2) years 25 after final termination of this action. 26 13. MISCELLANEOUS 27 13.1. Right to Further Relief. Nothing in this Order abridges the right of 28 any person to seek its modification by the Court in the future. STRADLING YOCCA -19- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 21 of 24 Page ID #:260

1 13.2. Right to Assert Other Objections. By stipulating to the entry of this 2 Stipulated Protective Order, no Party waives any right it otherwise would have to 3 object to disclosing or producing any information or item on any ground not 4 addressed in this Stipulated Protective Order. Similarly, no Party waives any right 5 to object on any ground to use in evidence of any of the material covered by this 6 Stipulated Protective Order. 7 13.3. Filing Protected Material. A Party that seeks to file under seal any 8 Protected Material must comply with Civil Local Rule 79-5. Protected Material 9 may only be filed under seal pursuant to a Court order authorizing the sealing of 10 the specific Protected Material at issue. If a Party’s request to file Protected 11 Material under seal is denied by the Court, then the Receiving Party may file the 12 information in the public record unless otherwise instructed by the Court. 13 14. FINAL DISPOSITION 14 Unless otherwise ordered or agreed in writing by the Producing Party, within 15 60 days after the final disposition of this action, as defined in Section 4, each 16 Receiving Party must return all Protected Material to the Producing Party or 17 destroy such material. As used in this subdivision, “all Protected Material” 18 includes all copies, abstracts, compilations, summaries, and any other format 19 reproducing or capturing any of the Protected Material. Whether the Protected 20 Material is returned or destroyed, the Receiving Party must submit a written 21 certification to the Producing Party (and, if not the same person or entity, to the 22 Designating Party) by the 60-day deadline that (1) identifies (by category, where 23 appropriate) all the Protected Material that was returned or destroyed and (2) 24 affirms that the Receiving Party has not retained any copies, abstracts, 25 compilations, summaries or any other format reproducing or capturing any of the 26 Protected Material. Notwithstanding this provision, Counsel are entitled to retain 27 an archival copy of all pleadings, motion papers, trial, deposition, and hearing 28 transcripts, legal memoranda, correspondence, deposition and trial exhibits, expert STRADLING YOCCA -20- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:22-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 22 of 24 Page ID #:261

1 reports, attorney work product, and consultant and expert work product, even if 2 such materials contain Protected Material. Any such archival copies that contain or 3 constitute Protected Material remain subject to this Protective Order as set forth in 4 Section 4 (DURATION). 5 15. REMEDY FOR VIOLATIONS 6 Any violation of this Order may be punished by any and all appropriate 7 measures including, without limitation, contempt proceedings and/or monetary 8 sanctions. 10 11 DATED: November 11, 2022 RUSS AUGUST & KABAT 12 13 By: /s/ Paul A. Kroeger 14 Paul A. Kroeger Marc A. Fenster 15 Jonathan Link Attorneys for Plaintiff 16 DATED: November 11, 2022 STRADLING YOCCA CARLSON & CORPORATION 18 19 By: /s/ Steven Hanle 20 Steven Hanle Salil Bali 21 Attorneys for Defendant 22 23 24 25 26 27 28 STRADLING YOCCA -21- CARLSON & RAUTH [PROPOSED] ORDER LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002 Case 8:4P-cv-01599-JVS-DFM Document 24 Filed 11/15/22 Page 23 0f24 Page ID #:262

1 [RRAHRGSED] ORDER 2 The parties having agreed to a Stipulated Protective Order governing the 3 treatment of confidential materials in this matter and the inadvertent disclosure of 4 privileged materials, therefore: 6 FOR GOOD CAUSE SHOWN, IT IS SO ORDERED. - 8 DATED: November 15, 2022 9 +, + a> 10 Hon. Douglas F. McCormick 4 United States Magistrate Judge

12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 rsa ee “1: — 4874-6429-0867v2/105234-0002

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3 I, _____________________________ [print or type full name], of 4 ___________________________________ [print or type full address], declare 5 under penalty of perjury that I have read in its entirety and understand the 6 Stipulated Protective Order that was issued by the United States District Court for 7 the Central District of California on _________________ [date] in the case of MR 8 Technologies, GMBH v. Western Digital Technologies, Inc., Case No. 8:22-cv- 9 01599-JVS-DFMx. I agree to comply with and to be bound by all the terms of this 10 Stipulated Protective Order and I understand and acknowledge that failure to so 11 comply could expose me to sanctions and punishment in the nature of contempt. I 12 solemnly promise that I will not disclose in any manner any information or item 13 that is subject to this Stipulated Protective Order to any person or entity except in 14 strict compliance with the provisions of this Order. 15 I further agree to submit to the jurisdiction of the United States District 16 Court for the Central District of California for the purpose of enforcing the terms 17 of this Stipulated Protective Order, even if such enforcement proceedings occur 18 after termination of this action. I hereby appoint __________________________ 19 [print or type full name] of _______________________________________ [print 20 or type full address and telephone number] as my California agent for service of 21 process in connection with this action or any proceedings related to enforcement of 22 this Stipulated Protective Order. 23 Date: ___________________________ 24 City and State where sworn and signed: _________________________________ 25 Printed name: _______________________________ 26 27 Signature: __________________________________ 28 STRADLING YOCCA 2 CARLSON & RAUTH ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND LAWYERS NEWPORT BEACH 4874-6429-0867v2/105234-0002