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Akamai Technologies, Inc. v. Limelight Networks, Inc.

United States District Court, D. Massachusetts

April 26, 2017

AKAMAI TECHNOLOGIES, INC., Plaintiff,
v.
LIMELIGHT NETWORKS, INC., Defendant.

          AGREED PROTECTIVE ORDER

          George A. O'Toole, Jr., United States District Judge

         1. PURPOSES AND LIMITATIONS

         Disclosure and discovery activity in this action are likely to involve production of confidential, proprietary, or private information for which special protection from public disclosure and from use for any purpose other than prosecuting this litigation may be warranted. The parties acknowledge that this Order does not confer blanket protections on all disclosures or responses to discovery and that the protection it affords from public disclosure and use extends only to the limited information or items that are entitled to confidential treatment under the applicable legal principles.

         Nothing in this Order implies anything with respect to whether a given piece of information should or should not be produced in discovery in this action. The Parties reserve all rights with respect to the scope of discovery under the Federal Rules of Civil Procedure, the Local Rules of this Court, and all applicable law.

         2. DEFINITIONS

         2.1. Challenging Party: a Party or Non-Party that challenges the designation of information or items under this Order.

         2.2. “CONFIDENTIAL” Information or Items: information that qualifies for protection under Federal Rule of Civil Procedure 26(c), including information that a Producing Party, including any Party to this action and any Non-Party producing information or material voluntarily or pursuant to a subpoe na or a court order, considers in good faith to constitute confidential technical, sales, marketing, financial, or other commercially sensitive information, whether embodied in physical objects, documents, or the factual knowledge of persons, and which has been so designated by the Producing Party.

         2.3. Counsel: Designated House Counsel and Outside Counsel of Record (as well as the support staff of said Outside Counsel of Record).

         2.4. Designated House Counsel: two (2) House Counsel for each Receiving Party with responsibility for managing this litigation, who may have access to “CONFIDENTIAL” information.

         2.5. Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, ” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”

         2.6. Disclosure or Discovery Material: all items or information, regardless of the medium or manner in which it is generated, stored, or maintained (including, among other things, testimony, transcripts, and tangible things), that are produced or generated in disclosures or responses to discovery in this matter.

         2.7. Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who has been retained by a Party or its Counsel to serve as an expert witness or as a consultant in this action.

         2.8. “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY” Information or Items: extremely sensitive “Confidential Information or Items, ” disclosure of whic h to another Party or Non-Party would create a substantial risk of serious harm that could not be avoided by less restrictive means. HIGHLY CONFIDENTIAL -OUTSIDE COUNSEL ONLY means CONFIDENTIAL INFORMATION that constitutes proprietary marketing, financial, sales, web traffic, research and development, or technical data/information or commercially sensitive competitive information, including, without limitation, confidential information obtained from a Non-Party pursuant to a current Nondisclosure Agreement (“NDA”), CONFIDENTIAL INFORMATION relating to future products not yet commercially released, strategic plans, and settlement agreements or settlement communications, the disclosure of which is likely to cause harm to the competitive position of the Producing Party. In determining whether information should be designated as HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, each Party agrees to use such designation in good faith.

         2.9. “HIGHLY CONFIDENTIAL - SOURCE CODE” Information or Items: extremely sensitive “Confidential Information or Items” representing computer code and associated comments and revision histories, formulas, metadata and configuration files necessary to the function of the computer code base, engineering specifications, or schematics that define or otherwise describe in detail the algorithms or structure of software or hardware designs, disclosure of which to another Party or Non-Party would create a substantial risk of serious harm that could not be avoide d by less restrictive means.

         2.10. House Counsel: attorneys who are employees of a Party to this action. House Counsel does not include Outside Counsel of Record or any other outside counsel.

         2.11. Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to this action.

         2.12. Outside Counsel of Record: attorneys (including those admitted pro hac vice) who are not employees, officers, or directors of a Party to this action but are retained to represent or advise a Party with respect to this action and whose identities and affiliations have been disclosed to all Parties.

         2.13. Party: any party to this action, including all of its officers, directors, employees, consultants, retained experts, and Counsel.

         2.14. Producing Party: a Party or Non-Party that produces Disclosure or Discovery Material in this action.

         2.15. Professiona l Vendors: persons or entities that provide litigation support services (e.g., photocopying, videotaping, translating, preparing exhibits or demonstrations, and organizing, storing, or retrieving data in any form or medium) and their employees and subcontractors.

         2.16. Protected Material: any Disclosure or Discovery Material that is designated as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL-OUTSIDE COUNSEL ONLY, ” or as “HIGHLY CONFIDENTIAL - SOURCE CODE.”

         2.17. Receiving Party: a Party that receives Disclosure or Discovery Material from a Producing Party.

         3. SCOPE

         The protections conferred by this Protective Order cover not only Protected Material (as defined above), but also (1) any information copied or extracted from Protected Material; (2) all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material. However, the protections conferred by this Protective Order do not cover the following information: (a) any information that is in the public domain at the time of disclosure to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as a result of publication not involving a violation of this Order; and (b) any information known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtaine d the information lawfully and under no obligation of confidentiality to the Designating Party. For the avoidance of doubt, nothing in this Order shall be construed to prevent a Party from presenting evidence in Court including without limitation in connection with a motion or at Trial.

         4. DURATION

         Even after final disposition of this litigation, the confidentiality obligations imposed by this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court order otherwise directs. Fina l disposition shall be deemed to be fina l judgment herein after the completion and exhaustion of all appeals, rehearings, remands, trials or reviews, including the time limits for filing any motions or applications for extension of time pursuant to applicable law.

         5. DESIGNATING PROTECTED MATERIAL

         5.1. Exercise of Restraint and Care in Designating Material for Protection. Each Party or Non-Party that designates information or items for protection under this Order must take care to limit any such designation to specific material that qualifies under the appropriate standards. To the extent it is reasonably practical to do so, the Designating Party must designate for protection only those parts of material, documents, items, or oral or written communications that qualify - so that other portions of the material, documents, items, or communications for which protection is not warranted are not swept unjustifiably within the ambit of this Order.

         If it comes to a Designating Party's attention that information or items that it designated for protection do not qualify for protection at all or do not qualify for the level of protection initially asserted, that Designating Party must promptly notify all other parties that it is withdrawing the mistaken designation.

         5.2. Manner and Timing of Designations. Except as otherwise provided in this Order (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered, Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so designated before the material is disclosed or produced.

         Designation in conformity with this Order requires:

         (a) for information in documentary form (e.g., paper or electronic documents, but excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party affix the legend “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, ” or “HIGHLY CONFIDENTIAL -SOURCE CODE” to each page that contains Protected Material, or in the case of native documents, the Producing Party shall in some other way clearly designate Disclosure or Discovery material that qualifies for protection under this Order.

         A Party or Non-Party that makes original documents or materials (such as source code) available for inspection need not designate them for protection until after the inspecting Party has indicated which material it would like copied and produced. During the inspection and before the designation, all of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY” or “HIGHLY CONFIDENTIAL - SOURCE CODE” as appropriate. After the inspecting Party has identified the documents it wants copied and produced, the Producing Party must determine which documents, or portions thereof, qualify for protection under this Order. Then, before producing the specified documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, ” or “HIGHLY CONFIDENTIAL -SOURCE CODE”) to each page that contains Protected Material, or in the case of native documents, the Producing Party shall in some other way clearly designate Disclosure or Discovery material that qualifies for protection under this Order.

         (b) for testimony given in deposition or in other pretrial or trial proceedings, that the Designating Party identify on the record, before the close of the deposition, hearing, trial or other proceeding, all protected testimony and specify the level of protection being asserted. When it is impractical to identify separately each portion of testimony that is entitled to protection and it appears that substantial portions of the testimony ma y qualify for protection, the Designating Party may invoke on the record (before the deposition, hearing, trial or other proceeding is concluded) a right to have up to 21 days to identify the specific portions of the testimony as to which protection is sought and to specify the level of protection being asserted. Only those portions of the testimony that are appropriately designated for protection within the 21 days shall be covered by the provisions of this Protective Order. Alternatively, a Designating Party may specify, at the deposition or up to 21 days afterwards if that period is properly invoked, that the entire transcript shall be treated as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, ” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”

         Parties shall give the other parties notice if they reasonably expect a deposition, hearing, trial or other proceeding to include Protected Material so that the other parties can ensure that only authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A) are present at those proceedings. Alternatively, the Protected Material may be identified prior to its use at a deposition, when such prior notice is not reasonably possible and any unauthorized individual may be asked to leave the deposition during discussions regarding the Protected Material. The use of a document as an exhibit at a deposition or other proceeding shall not in any way affect its designation as “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, ” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”

         Transcripts containing Protected Material shall have an obvious legend on the title page that the transcript contains Protected Material, and the title page shall be followed by a list of all pages (including line numbers as appropriate) that have been designated as Protected Material and the level of protection being asserted by the Designating Party. The Designating Party shall inform the court reporter of these requirements. Any transcript that is prepared before the expiration of a 21-day period for designation shall be treated during that period as if it had been designated “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript shall be treated only as actually designated. Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected Material must be separately bound by the court reporter and may not be disclosed to anyone except as permitted under this Protective Order.

         (c) for information produced in some form other than documentary and for any other tangible items, that the Producing Party affix in a prominent place on the exterior of the container or containers in which the information or item is stored the legend “CONFIDENTIAL, ” “HIGHLY CONFIDENTIAL - OUTSIDE COUNSEL ONLY, ” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”

         (d) for information not reduced to documentary, tangible or physical form or which cannot be conveniently designated as set forth in paragraphs 5.2(a)-(c), that the Producing Party inform the Receiving Party of the designation in writing.

         5.3. Failures to Designate. If timely corrected, a failure to designate qualified information or items does not, standing alone, waive the Designating Party's right to secure protection under this Order for such material. Upon timely correction of a designation, the Receiving Party must make reasonable efforts to assure that the material is treated in accordance with the provisions of this Order.

         6.CHALLENGING CONFIDENTIALITY DESIGNATIONS

         6.1. Timing of Challenges. Any Party or Non-Party may challenge a designation of confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to challenge a confidentiality designation by electing not to mount a challenge promptly after the original designation is disclosed.

         6.2. Meet and Confer. The Challenging Party shall initiate the dispute resolution process by providing written notice of each designation it is challenging and describing the basis for each challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must recite that the challenge to confidentiality is being made in accordance with this Protective Order. The parties shall attempt to resolve each challenge in good faith and must begin the process by conferring directly within 7 business days of the date of service of notice. In conferring, the Challenging Party must explain the basis for its belief that the confidentiality designation was not proper. The Designating Party may have 3 business days after the date of the conference to review the designated material, to reconsider the circumstances, and, if no change in designation is offered, to explain the basis for the chosen designation. A Challenging Party may proceed to the next stage of the challenge process only if it has engaged in this meet and confer process first or establishes that ...


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