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In re ex parte Application of Broadcom Corp.

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

November 15, 2019

In re Ex Parte Application of BROADCOM CORPORATION, a Delaware corporation, and AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED, a business entity formed under the laws of Singapore, Applicants, for an Pursuant to 28 U.S.C. § 1782 Granting Leave to Obtain Discovery for Use in Foreign Proceedings.

          CALFO EAKES & OSTROVSKY PLLC Damon Clay Elder HOPKINS & CARLEY A Law Corporation Jason S. Angell Attorneys for BROADCOM CORP. and AVAGO TECHS. INT'L SALES PTE. LTD.

          COOLEY, LLP Matt Brigham Christopher B. Durbin Attorneys for NINTENDO OF AMERICA, INC., NINTENDO TECHNOLOGY DEVELOPMENT, INC., and NINTENDO SOFTWARE TECHNOLOGY CORPORATION

          STIPULATION AND PROTECTIVE ORDER

          Honorable Richard A. Jones United States District Judge

         In order to expedite the flow of discovery materials, facilitate the prompt resolution of disputes over confidentiality, adequately protect confidential materials, and ensure that protection is afforded only to material so entitled, and for good cause shown, pursuant to Fed.R.Civ.P. 26(c), it is hereby ORDERED THAT:

         1.PURPOSE AND LIMITATIONS

         1.1 Protected Material designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” under the terms of this Protective Order shall be used by a Receiving Party solely for (i) the above-captioned case and all related appeals or (ii) the Actions and all related appeals, or (iii) invalidity or nullity actions regarding the Patents at issue in the Actions, and shall not be used directly or indirectly for any other purpose whatsoever, except as expressly provided for herein and/or agreed to by the Producing Party.

         1.2 Nothing in this Protective Order shall be construed to require a Producing Party to produce or disclose information not otherwise required to be produced under the applicable rules or orders of the Court. Production or disclosure of “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” information under this Protective Order shall not prejudice the right of any Producing Party making that production or disclosure to maintain the trade secret status or confidentiality of that information in other contexts. Similarly, no Producing Party waives any right to object on any ground to the admissibility of any of the Discovery Material, or portion thereof, covered by this Protective Order. Likewise, nothing in this Protective Order shall prejudice the right of any Receiving Party to challenge the confidentiality designation of any materials produced and designated under this Protective Order.

         1.3 Disclosure and discovery activity in the above-captioned case may 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 Protective 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. Accordingly, the Parties hereby stipulate to and petition the Court to enter this Protective Order.

         2. DEFINITIONS

         2.1 Actions: Avago Techs. Int'l Sales Pte. Ltd. v. Nintendo of Europe GmbH, No. 2 O 32/18 (filed on March 14, 2018 before the Mannheim Regional Court in Germany); Avago Techs. Int'l Sales Pte. Ltd. v. Nintendo of Europe GmbH, No. 2 O 35/18 (filed on March 16, 2018 before the Mannheim Regional Court in Germany); Broadcom Corp. v. Nintendo of Europe GmbH, No. 7 O 62/18 (filed on May 25, 2018 before the Mannheim Regional Court in Germany); Avago Techs. Int'l Sales Pte. Ltd. v. Nintendo of Europe GmbH, No. 2 O 83/18 (filed on June 13, 2018 before the Mannheim Regional Court in Germany); Nintendo of Europe GmbH v. Avago Techs. Int'l Sales Pte. Ltd., No. 4 Ni 20/19 (EP) joined with 4 Ni 27/19 (EP) (filed on July 9, 2018 before the German Federal Patent Court in Munich, Germany); Nintendo of Europe GmbH v. Avago Techs. Int'l Sales Pte. Ltd., No. 6 Ni 35/18 (EP) (filed on July 6, 2018 before the German Federal Patent Court in Munich, Germany); consequent appeals before the Court of Appeal and Federal Court of Justice. If the Receiving Party intends to use Protected Material for any other German infringement or nullity actions not enumerated above and in which the EP 1, 177, 531; EP 1, 260, 910; EP 1, 385, 339; and EP 1, 365, 385 patents are at issue, the Receiving Party shall give reasonable advance notice to the Producing Party identifying the Protecting Materials and shall meet and confer to ensure the protections provided for in provisions 6.6 “Procedures for Approving or Objecting to Disclosure of Protected Material” and 6.7 “Use of Protected Material” are complied with in the handling of the Protected Material.

         2.2 “CONFIDENTIAL” Information or Items: information (regardless of how it is generated, stored or maintained) or tangible things that qualify for protection under Federal Rule of Civil Procedure 26(c). A Producing Party may designate any Discovery Material as “CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially sensitive information.

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

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

         2.5 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 has been retained by a Party or its Outside Counsel of Record to serve as an expert witness or a litigation consultant in the Actions (including any necessary support personnel of such person to whom disclosure is reasonably necessary for this litigation or the Actions), and who is not a current employee of a Party or of a competitor of a Party, and who, at the time of retention, is not anticipated to become an employee of a Party or of a competitor of a Party.

         2.7 “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” Information or Items: Discovery Material that contains or reflects information that is extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that the disclosure of such Discovery Material is likely to cause economic harm or significant competitive disadvantage to the Producing Party. The Parties agree that the following information, if non-public, shall be presumed to merit the “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY” designation: trade secrets, pricing information, financial data, sales or marketing forecasts or plans, business plans, sales or marketing strategy, product development information, engineering documents, testing documents, employee information, and other non-public information of similar competitive and business sensitivity. Provided, however, that the forgoing presumption applies only to information originally created within the ten years prior to entry of this Protective Order.

         2.8 House Counsel: attorneys (as well as their support staff) who are employees of the Receiving Party and who have responsibility for managing the above-captioned case or the Actions. House Counsel does not include Outside Counsel of Record or any other outside counsel.

         2.9 Non-Party: any natural person, partnership, corporation, association, or other legal entity not named as a Party to the above-captioned case or the Actions.

         2.10 Outside Counsel of Record: attorneys who are not employees of a Party but are retained to represent or advise a Party in connection with the above-captioned case or the Actions and have entered an appearance on behalf of that Party in the above-captioned case or the Actions, as well as other attorneys or support staff employed by or affiliated with the same firm as one of the attorneys who has entered an appearance on behalf of one of the Parties in the above-captioned case or the Actions, to whom it is reasonably necessary to disclose the information for the above-captioned case or the Actions.

         2.11 Party or Parties: Nintendo of America, Inc., Nintendo Technology Development, Inc., Nintendo Software Technology Corporation, Broadcom Corporation, and Avago Technologies International Sales Pte. Ltd., including all of their officers, directors, employees, consultants, retained experts, and Outside Counsel of Record (and their support staffs).

         2.12 Producing Party: a Party or Non-Party that produces Discovery Material pursuant to this protective order.

         2.13 Professional 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. For the avoidance of doubt, Professional Vendors does not include professional jury or trial consultants or mock jurors.

         2.14 Protected Material: any Discovery Material that is designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY, ” as provided for in this Protective Order.

         2.15 Receiving Party: a Party that receives Discovery Material from a Producing Party.

         2.16 Relevant Technology: technology related to (a) graphics display systems for processing and displaying video graphics; (b) bridge circuits in network devices; (c) computer graphics systems for processing textures for a graphic image on a computer display; and (d) systems for providing layered graphics in a video environment.

         3.SCOPE

         3.1 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, derivations or compilations of Protected Material; and (3) any testimony, conversations, or presentations by Parties or their Counsel that might reveal Protected Material.

         3.2 Nothing in this Protective Order shall prevent or restrict a Producing Party's own disclosure or use of its own Protected Material for any purpose, and nothing in this Protective Order shall preclude any Producing Party from showing its Protected Material to an individual who prepared the Protected Material. Notwithstanding the foregoing, a Producing Party may not disclose its own Protected Material to the extent such Protected Material is also the Protected Material of any other Party (e.g., settlement discussions and agreements containing confidentiality obligations), without the prior written consent of such other party, unless compelled to do so by a Court of competent jurisdiction.

         3.3 Nothing in this Protective Order shall restrict in any way the use or disclosure of Discovery Material by a Receiving Party that is: (i) 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 Protective Order, including becoming part of the public record through trial or otherwise; (ii) known to the Receiving Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained the information lawfully and under no obligation of confidentiality to the Designating Party; (iii) previously produced, disclosed and/or provided by the Designating Party to the Receiving Party or a Non-Party without an obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the Designating Party; or (v) pursuant to order of the Court.

         3.4 Nothing in this Protective Order shall restrict a Producing Party's use or disclosure of Discovery Material it produces that is designated as Protected Material by another Party or Non-Party, if it was previously disclosed, produced, or provided by the Designating Party to the Producing Party.

         3.5 Nothing in this Protective Order shall be construed to preclude any Party's right to seek to file any Protected Material with the Court under seal. This Protective Order is without prejudice to the right of any Party to seek further or additional protection of any Discovery Material or to modify this Protective Order in any way, including, without limitation, an order that certain matter not be produced at all.

         4. DURATION

         4.1 Even after final disposition of the Actions, the confidentiality obligations imposed by this Protective Order shall remain in effect until a Designating Party agrees otherwise in writing, a court order otherwise directs, or that information otherwise becomes public. Final disposition occurs after an order, ...


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