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Genuine Enabling Technology LLC v. Nintendo Co Ltd.

United States District Court, W.D. Washington, Seattle

August 19, 2019

GENUINE ENABLING TECHNOLOGY LLC., Plaintiff,
v.
NINTENDO CO., LTD. and NINTENDO OF AMERICA INC., Defendants.

          Devan V. Padmanabhan Paul J. Robbennolt Michelle E. Dawson Erin O. Dungan Britta S. Loftus Padmanabhan & Dawson PLLC Michael P. Matesky, II Matesky Law PLLC Attorneys for Genuine Enabling Technologies, LLC.

          Jerry A. Riedinger, Jonathan McFarland, Kevin Zeck, Perkins Coie LLP David R. Pekarek Krohn (pro hac vice) Attorneys for Defendants Nintendo Co., Ltd. and Nintendo of America Inc.

          STIPULATED PROTECTIVE ORDER

          RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE

         Plaintiff Genuine Enabling Technology LLC and Defendants Nintendo Co., Ltd. and Nintendo of America Inc. (collectively, Nintendo), in the interest of avoiding ancillary litigation of discovery issues relating to party and/or non-party confidential commercial and/or proprietary information, stipulate and agree as follows:

         1. PURPOSES AND LIMITATIONS

         Discovery in this action is likely to involve production of confidential, proprietary, or private information for which special protection may be warranted. Accordingly, the parties hereby stipulate to and petition the court to enter the following Stipulated Protective Order. The parties acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket protection on all disclosures or responses to discovery, 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, and it does not presumptively entitle parties to file confidential information under seal.

         Pursuant to Local Civil Rule 26(c)(2), the parties began with the District's Model Protective Order and have identified departures from the model in redline, attached hereto as Exhibit B. The stipulated/requested modifications to the Model Protective Order are necessary because of the nature of this case, a technical patent matter that will focus on the operation of Nintendo technology, and the anticipated disclosure in discovery of voluminous amounts of documents and material containing among other things: confidential and sensitive information regarding the technical functionality of Nintendo and non-party devices and source code for those devices, which describe the internal electrical and processing operations of these electronic devices; internal non-public corporate strategy and financial information; and confidential patent license agreements. Public disclosure of such information would cause substantial harm to the disclosing party, and thus the requested protections are appropriate.

         The Stipulated Protective Order is consistent with this Court's rules and does not confer blanket protection on all disclosures or responses to discovery. See Sections 2.2, 2.7, and 2.8.[1]The protection from public disclosure and use only extends to the limited information and things that are entitled to confidential treatment. Moreover, the Stipulated Protective Order does not presumptively entitle parties to file protected material under seal. See infra Section 4.5.

         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” Material: “Confidential” material shall include the following categories of documents, tangible things, and other information:

a) Material containing non-public personal identifiers (e.g., tax information, bank account numbers, social security numbers);
b) Material that a Designating Party is required by law or by contract to keep confidential.
c) The following categories of Material containing or constituting proprietary information concerning a Designating Party's business:
1) Material containing non-public information about a Designating Party's finances, such as sales records, income statements, cash flow statements, assets and liabilities sheets, and equity statements (but such material may fall within the definition of “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” Material, as set forth below);
2) Organizational charts and non-public information concerning personnel responsibilities and project assignments; and
3) Non-public corporate policies and procedures (but such material may fall within the definition of “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” Material, as set forth below).

         2.3 Counsel (without qualifier): Outside Counsel of Record and House Counsel (as well as their support staff).

         2.4 Designating Party: a Party or Non-Party that designates information or items that it produces in disclosures or in responses to discovery as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”

         2.5 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.

         2.6 Expert: a person with specialized knowledge or experience in a matter pertinent to the litigation who may provide expert opinions or testimony in this action.

         2.7 “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” Material: “Highly Confidential - Attorneys' Eyes Only” Material shall include the following categories of highly sensitive, confidential documents, tangible things, and other information, the disclosure of which to another Party or Non-Party would create a substantial risk of serious harm, and which do not fall within the scope of “HIGHLY CONFIDENTIAL - SOURCE CODE” Material:

a) Material containing information on the sales-revenues, profits, pricing, costs, and expenses of a Designating Party's products and services;
b) The following categories of Materials concerning the non-public technical details of a Designating Party's products and services:
1) Product or component schematics and engineering diagrams, specifications, datasheets, technical manuals, and drawings, including CAD drawings, logic diagrams, wiring diagrams, and circuit diagrams or schematics;
2) Software API (application programming interface) and programming guides;
3) Bills of materials and pricing estimates;
4) Product testing plans, procedures, and reports;
5) Prototypes, and material concerning the non-public technical details of prototypes;
6) Manufacturing and packaging plans, procedures, and reports, and service manuals;

         c) The following categories of materials containing or constituting proprietary information concerning a Designating Party's business:

1) Annual or multi-year business strategy plans, reports, and studies;
2) Market strategy or opportunity studies or reports (e.g., SWOT analyses);
3) Non-public consumer surveys or studies;
4) Product marketing strategy and/or positioning plans and reports;
5) Intellectual property license and sales agreements and the terms thereof, to the extent such agreements impose confidentiality obligations;
6) Policies or procedures for licensing and selling intellectual property; and
7) Customer and supplier lists.

         2.8 “HIGHLY CONFIDENTIAL - SOURCE CODE” Information or Items: extremely sensitive CONFIDENTIAL Material representing computer code and associated comments and revision histories, formulas, engineering specifications, schematics that define or otherwise describe in detail the algorithms or structure of software designs, or particularly sensitive hardware schematics, disclosure of which to another ...


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