Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 1 of 17 Michael L. Rodenbaugh (SBN 179059) 1 Jonathan Frost (SBN 273189) 2 RODENBAUGH LAW 548 Market Street, Box 55819 3 San Francisco, CA 94104 4 Phone: (415) 738-8087 5 Attorneys for Plaintiff NANOLABS, INC. 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 10 NANOLABS, INC., Case No.: 3:23-cv-00844-JCS 11 12 Plaintiff, STIPULATED PROTECTIVE ORDER FOR United States District Court v. LITIGATION INVOLVING HIGHLY 13 SENSITIVE CONFIDENTIAL INFORMATION COINBASE GLOBAL, INC., AND/OR TRADE SECRETS 14 15 Defendant. Northern District of California 16 And related counterclaims. 17 18 19 1. PURPOSES AND LIMITATIONS 20 Disclosure and discovery activity in this action are likely to involve production of 21 confidential, proprietary, or private information for which special protection from public 22 disclosure and from use for any purpose other than prosecuting this litigation may be warranted. 23 Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated 24 Protective Order. The parties acknowledge that this Order does not confer blanket protections on 25 all disclosures or responses to discovery and that the protection it affords from public disclosure 26 and use extends only to the limited information or items that are entitled to confidential treatment 27 under the applicable legal principles. The parties further acknowledge, as set forth in Section 14.4, 28 1 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 2 of 17 1 below, that this Stipulated Protective Order does not entitle them to file confidential information 2 under seal; Civil Local Rule 79-5 sets forth the procedures that must be followed and the standards 3 that will be applied when a party seeks permission from the court to file material under seal. 4 2. DEFINITIONS 5 2.1 Challenging Party: a Party or Non-Party that challenges the designation of information or 6 items under this Order. 7 2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, 8 stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 9 26(c). 10 2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as 11 their support staff). 12 2.4 Designated House Counsel: House Counsel who seek access to “HIGHLY United States District Court 13 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information in this matter. 14 2.5 Designating Party: a Party or Non-Party that designates information or items that it 15 produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY Northern District of California 16 CONFIDENTIAL – ATTORNEYS’ EYES ONLY”. 17 2.6 Disclosure or Discovery Material: all items or information, regardless of the medium or 18 manner in which it is generated, stored, or maintained (including, among other things, testimony, 19 transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in 20 this matter. 21 2.7 Expert: a person with specialized knowledge or experience in a matter pertinent to the 22 litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or as a consultant 23 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 24 of retention, is not anticipated to become an employee of a Party or of a Party’s competitor. 25 2.8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or Items: 26 extremely sensitive “Confidential Information or Items,” disclosure of which to another Party or Non-Party 27 would create a substantial risk of serious harm that could not be avoided by less restrictive means. 28 2 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 3 of 17 1 2.10 House Counsel: attorneys who are employees of a party to this action. House Counsel does 2 not include Outside Counsel of Record or any other outside counsel. 3 2.11 Non-Party: any natural person, partnership, corporation, association, or other legal entity 4 not named as a Party to this action. 5 2.12 Outside Counsel of Record: attorneys who are not employees of a party to this action but 6 are retained to represent or advise a party to this action and have appeared in this action on behalf of that 7 party or are affiliated with a law firm which has appeared on behalf of that party. 8 2.13 Party: any party to this action, including all of its officers, directors, employees, 9 consultants, retained experts, and Outside Counsel of Record (and their support staffs). 10 2.14 Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in 11 this action. 12 2.15 Professional Vendors: persons or entities that provide litigation support services (e.g., United States District Court 13 photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or 14 retrieving data in any form or medium) and their employees and subcontractors. 15 2.16 Protected Material: any Disclosure or Discovery Material that is designated as Northern District of California 16 “CONFIDENTIAL,” or as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 17 2.17 Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing 18 Party. 19 3. SCOPE 20 The protections conferred by this Stipulation and Order cover not only Protected Material (as 21 defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, 22 excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or 23 presentations by Parties or their Counsel that might reveal Protected Material. However, the protections 24 conferred by this Stipulation and Order do not cover the following information: (a) any information that is 25 in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain 26 after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order, 27 including becoming part of the public record through trial or otherwise; and (b) any information known to 28 3 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 4 of 17 1 the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a 2 source who obtained the information lawfully and under no obligation of confidentiality to the Designating 3 Party. Any use of Protected Material at trial shall be governed by a separate agreement or order. 4 4. DURATION 5 Even after final disposition of this litigation, the confidentiality obligations imposed by this Order 6 shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise 7 directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims and defenses in this 8 action, with or without prejudice; and (2) final judgment herein after the completion and exhaustion of all 9 appeals, rehearings, remands, trials, or reviews of this action, including the time limits for filing any 10 motions or applications for extension of time pursuant to applicable law. 11 5. DESIGNATING PROTECTED MATERIAL 12 5.1 Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non- United States District Court 13 Party that designates information or items for protection under this Order must take care to limit any such 14 designation to specific material that qualifies under the appropriate standards. To the extent it is practical to 15 do so, the Designating Party must designate for protection only those parts of material, documents, items, Northern District of California 16 or oral or written communications that qualify – so that other portions of the material, documents, items, or 17 communications for which protection is not warranted are not swept unjustifiably within the ambit of this 18 Order. 19 Mass, indiscriminate, or routinized designations are prohibited. Designations that are shown to be 20 clearly unjustified or that have been made for an improper purpose (e.g., to unnecessarily encumber or 21 retard the case development process or to impose unnecessary expenses and burdens on other parties) 22 expose the Designating Party to sanctions. 23 If it comes to a Designating Party’s attention that information or items that it designated for 24 protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, 25 that Designating Party must promptly notify all other parties that it is withdrawing the mistaken 26 designation. 27 5.2 Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., 28 4 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 5 of 17 1 second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery 2 Material that qualifies for protection under this Order must be clearly so designated before the 3 material is disclosed or produced. 4 Designation in conformity with this Order requires: 5 (a) for information in documentary form (e.g., paper or electronic documents, but excluding 6 transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend 7 “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that 8 contains protected material. If only a portion or portions of the material on a page qualifies for protection, 9 the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 10 markings in the margins) and must specify, for each portion, the level of protection being asserted. 11 A Party or Non-Party that makes original documents or materials available for inspection need not 12 designate them for protection until after the inspecting Party has indicated which material it would like United States District Court 13 copied and produced. During the inspection and before the designation, all of the material made available 14 for inspection shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the 15 inspecting Party has identified the documents it wants copied and produced, the Producing Party must Northern District of California 16 determine which documents, or portions thereof, qualify for protection under this Order. Then, before 17 producing the specified documents, the Producing Party must affix the appropriate legend 18 (“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to each page that 19 contains Protected Material. If only a portion or portions of the material on a page qualifies for protection, 20 the Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate 21 markings in the margins) and must specify, for each portion, the level of protection being asserted. 22 (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating 23 Party identify on the record, before the close of the deposition, hearing, or other proceeding, all protected 24 testimony and specify the level of protection being asserted. When it is impractical to identify separately 25 each portion of testimony that is entitled to protection and it appears that substantial portions of the 26 testimony may qualify for protection, the Designating Party may invoke on the record (before the 27 deposition, hearing, or other proceeding is concluded) a right to have up to 21 days to identify the specific 28 5 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 6 of 17 1 portions of the testimony as to which protection is sought and to specify the level of protection being 2 asserted. Only those portions of the testimony that are appropriately designated for protection within the 21 3 days shall be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating 4 Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the 5 entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ 6 EYES ONLY.” 7 Parties shall give the other parties notice if they reasonably expect a deposition, hearing or other 8 proceeding to include Protected Material so that the other parties can ensure that only authorized 9 individuals who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at 10 those proceedings. The use of a document as an exhibit at a deposition shall not in any way affect its 11 designation as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” 12 Transcripts containing Protected Material shall have an obvious legend on the title page that the United States District Court 13 transcript contains Protected Material, and the title page shall be followed by a list of all pages (including 14 line numbers as appropriate) that have been designated as Protected Material and the level of protection 15 being asserted by the Designating Party. The Designating Party shall inform the court reporter of these Northern District of California 16 requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall 17 be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 18 EYES ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall 19 be treated only as actually designated. 20 (c) for information produced in some form other than documentary and for any other tangible 21 items, that the Producing Party affix in a prominent place on the exterior of the container or containers in 22 which the information or item is stored the legend “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 23 ATTORNEYS’ EYES ONLY”. If only a portion or portions of the information or item warrant protection, 24 the Producing Party, to the extent practicable, shall identify the protected portion(s) and specify the level of 25 protection being asserted. 26 5.3 Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to designate 27 qualified information or items does not, standing alone, waive the Designating Party’s right to secure 28 6 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 7 of 17 1 protection under this Order for such material. Upon timely correction of a designation, the Receiving Party 2 must make reasonable efforts to assure that the material is treated in accordance with the provisions of this 3 Order. 4 6. CHALLENGING CONFIDENTIALITY DESIGNATIONS 5 6.1 Timing of Challenges. Any Party or Non-Party may challenge a designation of 6 confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality designation 7 is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant 8 disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality 9 designation by electing not to mount a challenge promptly after the original designation is disclosed. 10 6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process by 11 providing written notice of each designation it is challenging and describing the basis for each challenge. 12 To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the United States District Court 13 challenge to confidentiality is being made in accordance with this specific paragraph of the Protective 14 Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by 15 conferring directly (in voice to voice dialogue; other forms of communication are not sufficient) within 14 Northern District of California 16 days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its 17 belief that the confidentiality designation was not proper and must give the Designating Party an 18 opportunity to review the designated material, to reconsider the circumstances, and, if no change in 19 designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to 20 the next stage of the challenge process only if it has engaged in this meet and confer process first or 21 establishes that the Designating Party is unwilling to participate in the meet and confer process in a timely 22 manner. 23 6.3 Judicial Intervention. If the Parties cannot resolve a challenge without court intervention, 24 the Designating Party shall file and serve a motion to retain confidentiality under Civil Local Rule 7 (and in 25 compliance with Civil Local Rule 79-5, if applicable) within 21 days of the initial notice of challenge or 26 within 14 days of the parties agreeing that the meet and confer process will not resolve their dispute, 27 whichever is earlier. Each such motion must be accompanied by a competent declaration affirming that the 28 7 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 8 of 17 1 movant has complied with the meet and confer requirements imposed in the preceding paragraph. Failure 2 by the Designating Party to make such a motion including the required declaration within 21 days (or 14 3 days, if applicable) shall automatically waive the confidentiality designation for each challenged 4 designation. In addition, the Challenging Party may file a motion challenging a confidentiality designation 5 at any time if there is good cause for doing so, including a challenge to the designation of a deposition 6 transcript or any portions thereof. Any motion brought pursuant to this provision must be accompanied by a 7 competent declaration affirming that the movant has complied with the meet and confer requirements 8 imposed by the preceding paragraph. 9 The burden of persuasion in any such challenge proceeding shall be on the Designating Party. 10 Frivolous challenges and those made for an improper purpose (e.g., to harass or impose unnecessary 11 expenses and burdens on other parties) may expose the Challenging Party to sanctions. Unless the 12 Designating Party has waived the confidentiality designation by failing to file a motion to retain United States District Court 13 confidentiality as described above, all parties shall continue to afford the material in question the level of 14 protection to which it is entitled under the Producing Party’s designation until the court rules on the 15 challenge. Northern District of California 16 7. ACCESS TO AND USE OF PROTECTED MATERIAL 17 7.1 Basic Principles. A Receiving Party may use Protected Material that is disclosed or 18 produced by another Party or by a Non-Party in connection with this case only for prosecuting, defending, 19 or attempting to settle this litigation. Such Protected Material may be disclosed only to the categories of 20 persons and under the conditions described in this Order. When the litigation has been terminated, a 21 Receiving Party must comply with the provisions of section 15 below (FINAL DISPOSITION). 22 Protected Material must be stored and maintained by a Receiving Party at a location and in a secure 23 manner that ensures that access is limited to the persons authorized under this Order. 24 7.2 Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered by the 25 court or permitted in writing by the Designating Party, a Receiving Party may disclose any information or 26 item designated “CONFIDENTIAL” only to: 27 (a) the Receiving Party’s Outside Counsel of Record in this action, as well as employees of said 28 8 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 9 of 17 1 Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation 2 and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 3 A; 4 (b) the officers, directors, and employees (including House Counsel) of the Receiving Party to 5 whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and 6 Agreement to Be Bound” (Exhibit A); 7 (c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is reasonably 8 necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be Bound” 9 (Exhibit A); 10 (d) the court and its personnel; 11 (e) court reporters and their staff, professional jury or trial consultants, and Professional Vendors to 12 whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and United States District Court 13 Agreement to Be Bound” (Exhibit A); 14 (f) during their depositions, witnesses in the action to whom disclosure is reasonably necessary and 15 who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), unless otherwise Northern District of California 16 agreed by the Designating Party or ordered by the court. Pages of transcribed deposition testimony or 17 exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and 18 may not be disclosed to anyone except as permitted under this Stipulated Protective Order. 19 (g) the author or recipient of a document containing the information or a custodian or other person 20 who otherwise possessed or knew the information. 21 7.3 Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or 22 Items. Unless otherwise ordered by the court or permitted in writing by the Designating Party, a Receiving 23 Party may disclose any information or item designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ 24 EYES ONLY” only to: 25 (a) the Receiving Party’s Outside Counsel of Record in this action,1 as well as employees of said 26 Outside Counsel of Record to whom it is reasonably necessary to disclose the information for this litigation 27 1 Maulin Shah of EnvisionIP is also authorized Outside Counsel for Plaintiff. 28 9 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 10 of 17 1 and who have signed the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit 2 A; 3 (b) One Designated House Counsel of the Receiving Party (1) who has no involvement in 4 competitive decision-making, (2) to whom disclosure is reasonably necessary for this litigation, (3) who 5 has signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom the 6 procedures set forth in paragraph 7.4(a)(1), below, have been followed; 7 (c) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this 8 litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), and (3) as 9 to whom the procedures set forth in paragraph 7.4(a)(2), below, have been followed]; 10 (d) the court and its personnel; 11 (e) court reporters and their staff, professional jury or trial consultants, and Professional Vendors to 12 whom disclosure is reasonably necessary for this litigation and who have signed the “Acknowledgment and United States District Court 13 Agreement to Be Bound” (Exhibit A); and 14 (f) the author or recipient of a document containing the information or a custodian or other person 15 who otherwise possessed or knew the information. Northern District of California 16 7.4 Procedures for Approving or Objecting to Disclosure of “HIGHLY CONFIDENTIAL – 17 ATTORNEYS’ EYES ONLY” Information or Items to Designated House Counsel or Experts. 18 (a)(1) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a 19 Party that seeks to disclose to Designated House Counsel any information or item that has been designated 20 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(b) first must make 21 a written request to the Designating Party that (1) sets forth the full name of the Designated House Counsel 22 and the city and state of his or her residence, and (2) describes the Designated House Counsel’s current and 23 reasonably foreseeable future primary job duties and responsibilities in sufficient detail to determine if 24 House Counsel is involved, or may become involved, in any competitive decision-making. 25 (a)(2) Unless otherwise ordered by the court or agreed to in writing by the Designating Party, a 26 Party that seeks to disclose to an Expert (as defined in this Order) any information or item that has been 27 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to paragraph 7.3(c) first 28 10 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 11 of 17 1 must make a written request to the Designating Party that (1) identifies the general categories of “HIGHLY 2 CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information that the Receiving Party seeks permission 3 to disclose to the Expert, (2) sets forth the full name of the Expert and the city and state of his or her 4 primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies the Expert’s current 5 employer(s), (5) identifies each person or entity from whom the Expert has received compensation or 6 funding for work in his or her areas of expertise or to whom the expert has provided professional services, 7 including in connection with a litigation, at any time during the preceding five years,2 and (6) identifies (by 8 name and number of the case, filing date, and location of court) any litigation in connection with which the 9 Expert has offered expert testimony, including through a declaration, report, or testimony at a deposition or 10 trial, during the preceding five years. 11 (b) A Party that makes a request and provides the information specified in the preceding respective 12 paragraphs may disclose the subject Protected Material to the identified Designated House Counsel or United States District Court 13 Expert unless, within 14 days of delivering the request, the Party receives a written objection from the 14 Designating Party. Any such objection must set forth in detail the grounds on which it is based. 15 (c) A Party that receives a timely written objection must meet and confer with the Designating Northern District of California 16 Party (through direct voice to voice dialogue) to try to resolve the matter by agreement within seven days 17 of the written objection. If no agreement is reached, the Party seeking to make the disclosure to Designated 18 House Counsel or the Expert may file a motion as provided in Civil Local Rule 7 (and in compliance with 19 Civil Local Rule 79-5, if applicable) seeking permission from the court to do so. Any such motion must 20 describe the circumstances with specificity, set forth in detail the reasons why the disclosure to Designated 21 House Counsel or the Expert is reasonably necessary, assess the risk of harm that the disclosure would 22 entail, and suggest any additional means that could be used to reduce that risk. In addition, any such motion 23 must be accompanied by a competent declaration describing the parties’ efforts to resolve the matter by 24 agreement (i.e., the extent and the content of the meet and confer discussions) and setting forth the reasons 25 advanced by the Designating Party for its refusal to approve the disclosure. 2 If the Expert believes any of this information is subject to a confidentiality obligation to a third-party, then the Expert 26 should provide whatever information the Expert believes can be disclosed without violating any confidentiality 27 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. 28 11 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 12 of 17 1 In any such proceeding, the Party opposing disclosure to Designated House Counsel or the Expert 2 shall bear the burden of proving that the risk of harm that the disclosure would entail (under the safeguards 3 proposed) outweighs the Receiving Party’s need to disclose the Protected Material to its Designated House 4 Counsel or Expert. 5 8. PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER LITIGATION 6 If a Party is served with a subpoena or a court order issued in other litigation that compels 7 disclosure of any information or items designated in this action as “CONFIDENTIAL” or 8 “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that Party must: 9 (a) promptly notify in writing the Designating Party. Such notification shall include a copy 10 of the subpoena or court order; 11 (b) promptly notify in writing the party who caused the subpoena or order to issue in the 12 United States District Court other litigation that some or all of the material covered by the subpoena or order is subject to this 13 Protective Order. Such notification shall include a copy of this Stipulated Protective Order; and 14 (c) cooperate with respect to all reasonable procedures sought to be pursued by the 15 Designating Party whose Protected Material may be affected.3 Northern District of California 16 If the Designating Party timely seeks a protective order, the Party served with the subpoena 17 or court order shall not produce any information designated in this action as “CONFIDENTIAL” 18 or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” before a determination by the 19 court from which the subpoena or order issued, unless the Party has obtained the Designating 20 Party’s permission. The Designating Party shall bear the burden and expense of seeking protection 21 in that court of its confidential material – and nothing in these provisions should be construed as 22 authorizing or encouraging a Receiving Party in this action to disobey a lawful directive from 23 another court. 24 25 26 3 The purpose of imposing these duties is to alert the interested parties to the existence of this Protective Order and to 27 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. 28 12 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 13 of 17 9. A NON-PARTY!S PROTECTED MATERIAL SOUGHT TO BE PRODUCED IN THIS 1 LITIGATION 2 (a) The terms of this Order are applicable to information produced by a Non-Party in 3 this action and designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – 4 ATTORNEYS’ EYES ONLY”. Such information produced by Non-Parties in connection with this 5 litigation is protected by the remedies and relief provided by this Order. Nothing in these 6 provisions should be construed as prohibiting a Non-Party from seeking additional protections. 7 (b) In the event that a Party is required, by a valid discovery request, to produce a Non- 8 Party’s confidential information in its possession, and the Party is subject to an agreement with the 9 Non-Party not to produce the Non-Party’s confidential information, then the Party shall: 10 1. promptly notify in writing the Requesting Party and the Non-Party that some or all 11 of the information requested is subject to a confidentiality agreement with a Non-Party; 12 2. promptly provide the Non-Party with a copy of the Stipulated Protective Order in United States District Court 13 this litigation, the relevant discovery request(s), and a reasonably specific description of the information 14 requested; and 15 3. make the information requested available for inspection by the Non-Party. Northern District of California 16 (c) If the Non-Party fails to object or seek a protective order from this court within 14 17 days of receiving the notice and accompanying information, the Receiving Party may produce the 18 Non-Party’s confidential information responsive to the discovery request. If the Non-Party timely 19 seeks a protective order, the Receiving Party shall not produce any information in its possession or 20 control that is subject to the confidentiality agreement with the Non-Party before a determination 21 by the court.4 Absent a court order to the contrary, the Non-Party shall bear the burden and 22 expense of seeking protection in this court of its Protected Material. 23 10. UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL 24 If a Receiving Party learns that, by inadvertence or otherwise, it has disclosed Protected Material to 25 any person or in any circumstance not authorized under this Stipulated Protective Order, the Receiving 26 Party must immediately (a) notify in writing the Designating Party of the unauthorized disclosures, (b) use 4 The purpose of this provision is to alert the interested parties to the existence of confidentiality rights of a Non-Party 27 and to afford the Non-Party an opportunity to protect its confidentiality interests in this court. 28 13 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 14 of 17 1 its best efforts to retrieve all unauthorized copies of the Protected Material, (c) inform the person or persons 2 to whom unauthorized disclosures were made of all the terms of this Order, and (d) request such person or 3 persons to execute the “Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A. 4 11. INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED MATERIAL 5 When a Producing Party gives notice to Receiving Parties that certain inadvertently 6 produced material is subject to a claim of privilege or other protection, the obligations of the 7 Receiving Parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This 8 provision is not intended to modify whatever procedure may be established in an e-discovery order 9 that provides for production without prior privilege review. Pursuant to Federal Rule of Evidence 10 502(d) and (e), insofar as the parties reach an agreement on the effect of disclosure of a 11 communication or information covered by the attorney-client privilege or work product protection, 12 United States District Court the parties may incorporate their agreement in the stipulated protective order submitted to the 13 court. 14 12. MISCELLANEOUS 15 14.1 Right to Further Relief. Nothing in this Order abridges the right of any person to seek its Northern District of California 16 modification by the court in the future. 17 14.2 Right to Assert Other Objections. By stipulating to the entry of this Protective Order no 18 Party waives any right it otherwise would have to object to disclosing or producing any information or item 19 on any ground not addressed in this Stipulated Protective Order. Similarly, no Party waives any right to 20 object on any ground to use in evidence of any of the material covered by this Protective Order. 21 14.3 Export Control. Disclosure of Protected Material shall be subject to all applicable laws and 22 regulations relating to the export of technical data contained in such Protected Material, including the 23 release of such technical data to foreign persons or nationals in the United States or elsewhere. The 24 Producing Party shall be responsible for identifying any such controlled technical data, and the Receiving 25 Party shall take measures necessary to ensure compliance. 26 14.4 Filing Protected Material. Without written permission from the Designating Party or a 27 28 14 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 15 of 17 1 court order secured after appropriate notice to all interested persons, a Party may not file in the public 2 record in this action any Protected Material. A Party that seeks to file under seal any Protected Material 3 must comply with Civil Local Rule 79-5. Protected Material may only be filed under seal pursuant to a 4 court order authorizing the sealing of the specific Protected Material at issue. Pursuant to Civil Local Rule 5 79-5, a sealing order will issue only upon a request establishing that the Protected Material at issue is 6 privileged, protectable as a trade secret, or otherwise entitled to protection under the law. If a Receiving 7 Party's request to file Protected Material under seal pursuant to Civil Local Rule 79-5 is denied by the 8 court, then the Receiving Party may file the Protected Material in the public record pursuant to Civil Local 9 Rule 79-5 unless otherwise instructed by the court. 10 13. FINAL DISPOSITION 11 Within 60 days after the final disposition of this action, as defined in paragraph 4, each Receiving 12 Party must return all Protected Material to the Producing Party or destroy such material. As used in this United States District Court 13 subdivision, “all Protected Material” includes all copies, abstracts, compilations, summaries, and any other 14 format reproducing or capturing any of the Protected Material. Whether the Protected Material is returned 15 or destroyed, the Receiving Party must submit a written certification to the Producing Party (and, if not the Northern District of California 16 same person or entity, to the Designating Party) by the 60-day deadline that (1) identifies (by category, 17 where appropriate) all the Protected Material that was returned or destroyed and (2) affirms that the 18 Receiving Party has not retained any copies, abstracts, compilations, summaries or any other format 19 reproducing or capturing any of the Protected Material. Notwithstanding this provision, Counsel are 20 entitled to retain an archival copy of all pleadings, motion papers, trial, deposition, and hearing transcripts, 21 legal memoranda, correspondence, deposition and trial exhibits, expert reports, attorney work product, and 22 consultant and expert work product, even if such materials contain Protected Material. Any such archival 23 copies that contain or constitute Protected Material remain subject to this Protective Order as set forth in 24 Section 4 (DURATION). 25 // 26 // 27 // 28 15 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 16 of 17 1 // 2 // 3 4 IT IS SO STIPULATED, THROUGH COUNSEL OF RECORD. 5 DATED: /s/ Michael Rodenbaugh 6 Attorneys for Plaintiff 7 DATED: /s/ Gina Durham Attorneys for Defendant 8 9 PURSUANT TO STIPULATION, IT IS SO ORDERED. 10 DATED: ________________________ _____________________________________ 11 [Name of Judge] United States District/Magistrate Judge 12 United States District Court 13 14 15 Northern District of California 16 17 18 19 20 21 22 23 24 25 26 27 28 16 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844  Case 3:23-cv-00844-JCS Document 35 Filed 08/21/23 Page 17 of 17 1 EXHIBIT A 2 ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND 3 I, _____________________________ [print or type full name], of _________________ 4 [print or type full address], declare under penalty of perjury that I have read in its entirety and understand 5 the Stipulated Protective Order that was issued by the United States District Court for the Northern District 6 of California on [date] in the case of Nanolabs, Inc. v. Coinbase Global Inc., Case No.: 4:22-cv-01289- 7 DMR. I agree to comply with and to be bound by all the terms of this Stipulated Protective Order and I 8 understand and acknowledge that failure to so comply could expose me to sanctions and punishment in the 9 nature of contempt. I solemnly promise that I will not disclose in any manner any information or item that 10 is subject to this Stipulated Protective Order to any person or entity except in strict compliance with the 11 provisions of this Order. 12 I further agree to submit to the jurisdiction of the United States District Court for the United States District Court 13 Northern District of California for the purpose of enforcing the terms of this Stipulated Protective Order, 14 even if such enforcement proceedings occur after termination of this action. 15 Northern District of California 16 17 Date: _________________________________ 18 City and State where sworn and signed: _________________________________ 19 Printed name: ______________________________ [printed name] 20 Signature: __________________________________ 21 22 23 24 25 26 27 28 17 STIPULATED PROTECTIVE ORDER CASE NO. 3:23-CV-844