Protective Order Addresses Microsoft Source Code

Protective Order Addresses Microsoft Source Code

February 11, 2019

Last Tuesday, Magistrate Judge  John D. Early, signed an amended stipulated protective order.  See,  Uniloc 2017, LLC v. Microsoft Corp., No. 8:18-CV-02053-AG (JDEx), 2019 U.S. Dist. LEXIS 20933 (C.D. Cal. Feb. 5, 2019).     This is a patent infringement suit concerning the Marvell Avastar wifi / bluetooth chip; Long-Term Evolution (LTE) wireless functionality for the Surface Pro; and content distribution network (CDN) technology.  

 

The need for this protective order is based not only on the need to protect confidential and proprietary information but to protect, "private information requiring special protection from public disclosure and from use for any purpose other than this litigation." Id. at *1. 

 

The order designates four confidentiality categories: "PROTECTED DATA"; "CONFIDENTIAL"; "HIGHLY CONFIDENTIAL - ATTORNEY EYES ONLY"; and "HIGHLY CONFIDENTIAL - SOURCE CODE".    Designations of a higher confidentiality level are prohibited if a lower level would suffice, and "[m]ass, indiscriminate, or routinized designations" are also barred.  Id. at *2.  

 

The order provides for applying confidentiality designations to documents after original documents have been reviewed by an inspecting party and selected for production.   Advance notice is required before designated material can be used at a deposition or hearing.   Transcripts with designated material must have a list after the title page of the pages on which such material appears.  An inadvertent failure to designate material does not waive the right to protect it under the order.   Designated material has to be stored in a secure location that limits access to people authorized by the order to view it. Counsel; court personnel; directors and officers of a party;  experts; deponents; and the authors or custodians of the documents can view confidential material.   Highly confidential material can only be viewed by counsel;  court personnel; and the authors or custodians.  

 

Material designated as, 'HIGHLY CONFIDENTIAL - SOURCE CODE' must be made available for inspection within 7 days of receiving a request to review it on computer not connected to the internet.   No record can be made of the code other than handwritten notes which cannot copy the code verbatim.    Paper copies of source code are limited to 250 pages for a single product with only 35 page of contiguous code blocks, and only 5 people can review the code.  These paper copies cannot be digitized.   

 

Protected Data consists of information subject to data protection laws such the Gramm-Leach-Biley Act, HIPAA, and GDPR.   Protected data can only be viewed by individuals that have access to highly confidential material. 

 

The order specifies that in order to file documents under seal, an additional order must be issued.    Within 30 days of the final disposition of the action, receiving parties must return or destroy all designated material.  

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