Free Motion for Protective Order - District Court of Federal Claims - federal

Case 1:08-cv-00069-LSM

Document 18-2

Filed 06/05/2008

Page 1 of 96

IN THE UNITED STATES COURT OF FEDERAL CLAIMS AVOCENT REDMOND CORP., a Washington corporation, Plaintiff, v. THE UNITED STATES, Defendant. No. 08-69C Judge Lawrence S. Margolis

DECLARATION OF DONALD L. JACKSON IN SUPPORT OF AVOCENT REDMOND'S MOTION FOR ENTRY OF A PROTECTIVE ORDER I, Donald L. Jackson, hereby declare as follows: 1. I am a member of Davidson Berquist Jackson & Gowdey, LLP, counsel to

plaintiff Avocent Redmond Corp. in the above-captioned litigation. I am a member in good standing of the bar of this Court and of the Supreme Court of Virginia. 2. Attached hereto as Exhibit 1 is a true and correct copy of Avocent's Motion for

Entry of a Protective Order filed in Avocent Redmond Corp. v. Rose Electronics, et al., U.S. District Court for the Western District of Washington, No. 2:06-cv-01711-MJP ("the Seattle action"). 3. Attached hereto as Exhibit 2 is a true and correct copy of Judge Pechman's May

24, 2007 Order ruling on the parties' competing protective order proposals in the Seattle action. 4. Attached hereto as Exhibit 3 is a true and correct copy of a May 7, 2008 email

from Donald Jackson, Avocent's counsel, to Robert Hilton, the United States' counsel, enclosing a proposed protective order and the protective order entered by Judge Pechman in the Seattle action. The two protective orders are substantively identical to each other.

Case 1:08-cv-00069-LSM

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Case 1:08-cv-00069-LSM

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CERTIFICATE OF SERVICE The undersigned hereby certifies that the counsel of record who are deemed to have
consented to electronic service are being served today with a copy of this document via the Court's CM/ECF system per RCFC 5.2. Any other counsel of record will be served by electronic mail, facsimile transmission and/or first class mail on this same date.

/s/ Donald L. Jackson________________ Donald L. Jackson

Case 1:08-cv-00069-LSM

Document 18-2

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Exhibit 1

Case 1:08-cv-00069-LSM Document 18-2 Case 2:06-cv-01711-MJP Document 57

Filed 04/05/2007 Page 15of 13 Filed 06/05/2008 Page of 96

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The Honorable Marsha 1. Pechman

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
A VOCENT REDMOND CORP., a Washington corporation,
NO. C06-1711-MJP

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Plaintiff,
v.

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ROSE ELECTRONICS, a Texas general partnership; PETER MACOURK, an individual; DAROUSH "DAVID" RAHV AR, an individual; ATEN TECHNOLOGY INC., a California corporation; ATEN INTERNATIONAL CO., LTD., a Taiwanese

A VOCENT'S MOTION FOR ENTRY OF A PROTECTIVE ORDER

NOTE ON MOTION CALENDAR: April 16, 2007

Company; TRIPPE MANFACTURG
COMP ANY, an Ilinois corporation; and BELKIN INTERNATIONAL, INC. (formerly Belkin Corporation), a Delaware corporation,
Defendants.

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Plaintiff Avocent Redmond Corp. ("Avocent") hereby moves for entry of a protective
order under Federal Rule of

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Civil Procedure 26(c) to protect certain confidential information

produced by parties and third-parties during the course of

this action. Avocents proposed

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protective order is attached hereto as Exhibit 1. A vocent certifies that it has conferred in good
faith with Defendants' counsel over the terms of

the proposed protective order. Avocent and
the proposed protective order, and thereby,

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Defendants' counsel have exchanged revisions of

have narrowed the areas of dispute to those that are addressed below.
Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 1 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

Case 1:08-cv-00069-LSM Document 18-2 Case 2:06-cv-01711-MJP Document 57

Filed 04/05/2007 Page 26of 13 Filed 06/05/2008 Page of 96

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This is a patent infringement action in which A vocent has accused each of the

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defendants of infringing three of its patents covering keyboard-video-mouse switches ("KVM
switches"). The claims of

these patents are directed to the internal structure and operation of

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KVM switches. A protective order is needed because discovery in this case will include the
disclosure of sensitive and confidential information about Avocent s and the Defendants'

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KVM switches. Moreover, in order for Avocent to quantify the damages it has suffered due to
Defendants' infringement, Avocent needs detailed information on each of

Defendants' sales of
Defendants' accused products. Avocent also

the accused products, and the profitability of

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anticipates that it will disclose information on the profitability and the commercial success of
its patented products. At least some of

this information qualifies as "a trade secret or other

confidential research, development, or commercial information" as that phrase is used in
Federal Rule of Civil Procedure 26(c)(7). In addition, each of

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the Defendants has objected to

providing confidential information and documents in response to Avocents discovery requests.
A vocent and the Defendants have agreed on a maj ority of the proposed protective

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order. In short, the proposed protective order allows the parties and any non-party to designate
"Proprietary Information" as either "Confidential" information (the lower-level designation) or

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as "Attorneys Eyes Only" information (the higher-level designation). (Exh. 1, p. 2, lines 4-22).
Confidential Information can be disclosed to any of the categories of individuals listed in
paragraph 7 of the order, including two representatives of each of

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the parties. (Exh. 1, p. 4, line

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20 through p. 6, line 2). Attorneys Eyes Only Information can be disclosed to the same group
of

people, excluding the two party representatives. (Exh. 1, p. 6, lines 3-4).

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Exhibit 2 to this motion is a redlined version of the protective order showing the areas

of dispute. Where there is a dispute, A vocent s proposed language is underlined and
Defendants' proposed language is shown in strikethrough.

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A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 2 (NO. C06-1711 MJP)
1997223.1

Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

(206) 628-6600

Case 1:08-cv-00069-LSM Document 18-2 Case 2:06-cv-01711-MJP Document 57

Filed 04/05/2007 Page 37of 13 Filed 06/05/2008 Page of 96

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The areas of disagreement are the following:

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1. The definition of information that may be designated as Attorney's Eyes Only (See Exh. 2, p. 2, lines 10-17);
2. The amount of

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time after a deposition that a party has to designate the testimony as Confidential or Attorneys Eyes Only (See Exh. 2, p. 3, lines 21-24); and

3. Defendants' proposal that outside counsel that receives Attorneys Eyes Only

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information shall be precluded from any involvement in patent prosecution before any patent offce worldwide for a period ending two years after the
conclusion of

this case and all subsequent appeals (See Exh. 2, p. 6, lines 6-16).1

Items number 1 and 3 are the key, related disputes between the parties. First, the
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Defendants seek to broadly define the information that can be designated as Attorneys Eyes
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Only. Then, the Defendants seek to exclude any lawyers that receive Attorneys Eyes Only
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information from being involved, in any way, with patent procurement anywhere in the world
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involving the broad field ofKVM switch technology.
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I.
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DEFENDANTS' IMPROPERLY SEEK TO EXCLUDE AVOCENT'S PATENT COUNSEL FROM MEANINGFULLY PARTICIPATING IN THIS CASE
Defendants seek to preclude A vocent s litigation counsel from prosecuting any KVM

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switch-related patents anywhere in the world for two years after the final conclusion of

the

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present litigation. A vocent submits that such an exclusion order is draconian and unwarranted.
A.

Defendants Bear the Burden of Proof for an Order Effectively Excluding Avocents Patent Counsel

As the parties seeking to shield discovery from A vocent s outside patent counsel,
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Defendants bear the burden of showing good cause for these protective order provisions. See
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AFP Advanced Food Products LLC v. Snyder's of

Hanover Mfg., Inc., 2006 U.S. Dist. LEXIS

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426, *2 (E.D. Penn. 2006) ("The party seeking the protective order must show that disclosure
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1There are two other minor differences between Avocents and Defendants' protective Exhibit 2. This change was made to orders. The first difference appears on page 7, line 22, of Exhibit 2. Avocent clarify the sentence. The second difference appears on page 8, line 21, of made this change to clarify that the parties could retain copies of all documents fied with the Court, even if those documents do not literally qualify as a "pleading."
A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 3 (NO. C06-1711 MJP)
1997223.1

Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

(206) 628-6600

Case 1:08-cv-00069-LSM Document 18-2 Case 2:06-cv-01711-MJP Document 57

Filed 04/05/2007 Page 48of 13 Filed 06/05/2008 Page of 96

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of the information sought to be protected would result in a 'clearly defined, specific and serious
injury. ''') (citations omitted). Avocent submits that the Defendants cannot show good cause
for the exclusion order they seek.
B.

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Defendants Essentially Advocate a Per Se Bar Excluding Avocents Patent Counsel in Direct Contravention to the Controllng Precedent of This Court

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The Defendants seek the exclusion order without identifying any basis that is required

by the controlling precedent. The leading case governing exclusion of counsel under a

protective order is Us. Steel Corp. v. The Unzted States, 730 F.2d 1465 (Fed. Cir. 1984). The
us. Steel court made it clear that there is no per se exclusion of counsel from accessing

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proprietary information. Id. at 1468 ("(T)he factual circumstances surrounding each individual
counsel's activities, association, and relationship with a party" must be considered.). The Us.

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Steel court also recognized that the risk of inadvertent or accidental disclosure of another party's confidential information must be weighed against any unnecessary hardship that would

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be born by the lawyer's client. Id. at 1468. Us. Steel made it clear that the key factor in
determining whether there is any basis for excluding counsel from another party's confidential

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information is whether the particular attorney at issue is involved in "competitive

decisionmaking" for its client. Id. The court defined competitive decisionmaking as involving
"counsel's advice and participation in any or all of

the client's decisions (pricing, product

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design, etc.) made in light of similar or corresponding information about a competitor." Id.
The Us. Steel analysis was adopted by the Ninth Circuit in Brown Bag Software v.

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Symantec Corp., 960 F.2d 1465, 1471-72 (9th Cir. 1992). Although the Brown Bag court
excluded in-house counsel, the facts of that case bear no relation to those of

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the present case.

First, the Brown Bag lawyer was in-house counseL. Also, he was one of only thirteen or
fourteen employees of

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the company. And he was responsible for a wide range of

responsibilities including contracts, marketing, and employment.
Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 4 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

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Judges in this district have applied the Us. Steel/Brown Bag analysis in patent
infringement cases. In

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Amgen, Inc. v. Elanex Pharms., Inc., 160 F.RD. 134 (W.D. Wash.

1994), Judge Dimmick allowed Amgen's in-house counsel to access Elanex's confidential

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information because Elanex identified no evidence that Amgen's counsel was involved in

competitive decisionmaking. Id. at 139 ("In-house counsel in the instant case, unlike counsel
in Brown Bag, are not involved in competitive decisionmaking, which is arguably the
determinative factor in this analysis.").
In

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Fluke Corp. v. Fzne Instruments Corp., 1994 U.S. Dist. LEXIS 16286 (W.D. Wash.

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1994), Judge Coughenour denied defendant UEI's motion to preclude Fluke's in-house counsel

from accessing UEI's confidential and proprietary information. Id. at * 16. Again, the Fluke
court denied the motion because there was no evidence that Fluke's in-house counsel was
involved in competitive decisionmaking. Id.
In the present case, Defendants have not even alleged that any of A vocent's outside

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patent counsel is involved in competitive decisionmaking. Thus, there is no good cause for
entering a protective order excluding such counsel from having access to Defendants'
proprietary information.
The rule of Fluke in the Western District of

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Washington is the majority rule, and few

other courts have excluded outside patent counsel because of their involvement in patent

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prosecution activities for their clients. The most-widely cited case of that type is Motorola,
Inc. v. Interdzgztzal Tech. Corp., 1994 U.S. Dist. LEXIS 20714 (D. DeL. 1994). The

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Motorola

case should not apply here because: (1) the Motorola analysis has been strongly questioned by
other courts; (2) it is contrary to the controlling precedent of

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the Federal Circuit, the Ninth

Circuit, and this court; (3) it contradicts the Us. Steel decision in that it effectively created a
per se bar against outside patent counsel; and (4) the facts of Motorola are significantly
different from the facts here.
Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

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A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 5 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

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Filed 04/05/2007 Filed 06/05/2008

Page 6 ofof 96 Page 10 13

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First, the court in Szbza Neruosccences, Inc. v. Cadus Pharm. Corp., 1997 US. Dist.

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LEXIS 24130 (S.D. Cal. 1997), strongly questioned the analysis applied by the Motorola court.
The Szbza court noted that:

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The Motorola court began its analysis by redefining "competitive decisionmaking." Where previous courts had looked to "a counsel's activities, association, and relationship with a client that 'are such as to involve counsel's advice and participation in any or all of the client's decisions. . . made in light of similar or corresponding information about a competitor," the Motorola court expanded competitive decisionmaking to include all "activities which define the scope and emphasis of a client's research and development efforts." The court then analogized the activities of patent counsel to this definition, concluding that
"the process of prosecuting patent applications also involves

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decisions of scope and emphasis." Next, the court relied on (an) "implication" in Safe Fllght that "prosecution of patents could be grounds for denying access."
Szbza, 1997 US. Dist. LEXIS at * 19 (internal citations omitted). The Szbza court's critique of

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Motorola is absolutely correct. Motorola redefined and expanded the actual holding of Us.
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Steel. Then it analogized patent prosecution activities to its new definition of "competitive
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decisionmaking." This analysis was error.
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Moreover, there have been many other courts that have not excluded outside patent
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counsel from accessing confidential information. See AFP Advanced Food Products, 2006
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US. Dist. LEXIS at *6-7 ("that threat (of inadvertently using condifential discovery
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information), standing alone, under Shzngara rv. Skzles, 420 F.3d 301 (3d Cir. 2005)) and Us.
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Steel, is not enough to justify a protective order barring AFP's attorneys from prosecuting
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similar patents for two years."); Pergo, Inc. v. Faus Group, Inc., 2005 US. Dist. LEXIS 40601,
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*19-20 (E.D. N.C. 2005) ("To grant defendants the relief

they seek here, on the showing that

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they have made, would inevitably take the form of a per se rule that counsel may not serve as
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both patent prosecutors and litigation counsel for their clients. This court holds that such a
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result would run contrary to the principles set down by the Federal Circuit in Us. Steel.");
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Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 6 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

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Medlmmune, Inc. v. Centocor, Inc., 271 F. Supp. 2d 762,774 n.13 (D. Md. 2003) ("The Court
disagrees with the reasoning applied in Interacttve (following Motorola) because, in the
Court's view, it amounts to a per se prohibition on patent counseL. If' shaping' patent

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applications amounts to competitive decision-making, the court has trouble imagining a patent
prosecutor who would not meet that standard.").

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Second, after initially acknowledging the case-by-case analysis mandated by Us. Steel,
the Motorola court effectively created a per se bar against lawyers who prosecute patents for
their client. Motorola, 1994 US. Dist. LEXIS at * 14- 1 5. The Motorola court posited that
attorneys who saw Motorola's confidential information could not keep from disclosing that

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information in patents that they later prosecuted for Interdigital. Id. (characterizing it as a

"sisyphean task" to avoid disclosing Motorola's confidential information). But this is exactly

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contrary to the mandate of Us. Steel. In that case, the Federal Circuit emphasized that "the
factual ccrcumstances surrounding each individual counsel's activities, associates, and

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relationship with a party. . . must govern any concern for inadvertent or accidental disclosure."
Us. Steel, 730 F.2d at 1468 (emphasis added). Us. Steel directs us to analyze the "factual

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circumstances," while Motorola ignored the factual circumstances and effectively applied a per

se bar to outside patent counseL. Motorola is contrary to Us. Steel and this court's precedent.
Finally, the facts of Motorola are significantly different from the facts here. In

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Motorola, Interdigital transferred its patent prosecution fies to its litigation counsel after the

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Motorola litigation had begun. Here, the situation is the exact opposite. Avocent retained its
long-standing patent counsel to bring the present action against the Defendants. Even the

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Motorola court acknowledged that its holding was based, at least in part, on the fact that the
litigation counsel became the patent counsel after the litigation had started.
It is important to note that DS&M ((.e., Interdigital's litigation counsel) has not been prosecuting these particular ITC patent
applications for a long period of time. Thzs zs not a sztuatton

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A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 7 (NO. C06-1711 MJP)
1997223.1

Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

(206) 628-6600

Case 1:08-cv-00069-LSM Document 18-2 Case 2:06-cv-01711-MJP Document 57

Filed 04/05/2007 Filed 06/05/2008

Page 8 ofof 96 Page 12 13

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where a clzent deccded that zt would be etfccent to retazn trzal counsel who had prosecuted the parttcular patent zn the past. In fact, DS&M did not become attorney of record for these particular patent applications until one week after the fiing of the Motorola suit.

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Motorola, 1994 US. Dist. LEXIS at * 16 (emphasis added). Thus, the facts in Motorola are
significantly different from the facts of the present case.

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c.

Exclusion of Avocents Patent Counsel Would Impose an Undue Hardship
on A vocent

Entering the Defendants' version of

the proposed protective order would work an undue

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hardship on Avocent. See Us. Steel, 730 F.2d at 1468 (directing that undue hardship be
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considered when looking to exclude counsel); Medlmmune, 271 F. Supp. 2d at 774 (holding
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that excluding MedImmune's outside counsel would be an undue hardship even though
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MedImmune was represented by other retained lawyers).
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Lawyers at the Davidson Berquist firm have represented A vocent Corporation in both
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patent prosecution and litigation matters since the formation of Avocent Corp. in mid-2000.
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Beginning in 1998, those lawyers represented Cybex Computer Products Corp., one of

the two

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companies that merged to form A vocent Corporation. The Davidson Berquist lawyers have

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represented A vocent Redmond, the plaintiff here, since at least the fiing of the related
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litigation against Raritan Computer, Inc. in May 2001. A vocent and its parent have invested
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significant amounts of

time and money educating its patent counsel on the technology involved

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in the present case, the legal issues likely to be litigated here, the industry's use of the same or
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similar technology, and the evolution of

the market for the patented KVM switches. Avocent's

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patent counsel has intimate knowledge of prior related proceedings, including the Raritan
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proceedings, and has already tried infringement claims on these patents, argued an appeal on
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those claims, and developed the infringement claims for a remanded triaL. Knowledge of the
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details of the Raritan proceedings may in fact prove valuable to this Court as it considers issues
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Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 8 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

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such as claim construction, infringement, and validity. Certainly, Avocent expects to receive a
substantial benefit from having its experienced Raritan litigation counsel handle the present
litigation.
D.

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Defendants' Definition of Attorneys Eyes Only Information is Overly Broad
the protective order is also objectionable because it expands the

Defendants' version of

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categories of information that can be designated under the highest confidentiality level,
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Attorneys Eyes Only. Avocent proposes a definition that is limited to information about sales
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to specific customers, profit margins, prospective marketing strategies, and highly sensitive
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technical information relating to future commercial products, source code, or other trade secret
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information. Avocent's definition of Attorneys Eyes Only material is a relatively limited
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definition allowing parties and third parties to provide the utmost protection to those types of
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information that are particularly sensitive.
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Other proprietary information can still be shielded from public disclosure under the
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next-lower level of

the protective order. Under Avocent's proposal, that less-sensitive

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information could be designated as Confidential Information. The only difference between the
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Attorneys Eyes Only designation and the Confidential designation is that, for Confidential
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Information, two party representatives can see that information. Presumably, the parties will
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designate two representatives that will allow the parties to more effectively prosecute the
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litigation and to evaluate settlement. This is a reasonable approach to protecting proprietary
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information.
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Defendants' proposal, on the other hand, allows parties to shield dramatically more
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information under the Attorneys Eyes Only designation. Defendants' Attorneys Eyes Only
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definition includes all types of sales and cost information, regardless of its specificity. The
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definition also includes technical schematics, drawings, and specifications for current products
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Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 9 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

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and for products that are no longer being sold. This definition is so broad that virtually
anything could be characterized as Attorneys Eyes Only information, provided the designating
party was motivated to do so.

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II.

DEFENDANTS' PROPOSED PROTECTIVE ORDER UNNECESSARILY EXTENDS THE AMOUNT OF TIME FOR DESIGNATING DEPOSITION TRANSCRIPTS UNDER THE PROTECTIVE ORDER
The only other disagreement over the proposed protective order relates to the amount of

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time that a party or non-party has to designate a deposition transcript either Confidential or

Attorneys Eyes Only. The way the proposed protective order is structured, a party or non-party
can designate the transcript on the record during the deposition, or in writing within a certain
amount of time after the deposition concludes. If

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the transcript was not designated as

Confidential or Attorneys Eyes Only during the deposition, all parties must treat the transcript as Attorneys Eyes Only until the post-deposition period expires or until counsel designates the
transcript in writing.

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Avocent proposes a relatively short post-deposition "waiting period." Under Avocent's
proposal, the parties have five days after the court reporter indicates that the transcript is

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completed to designate the transcript as either Confidential or Attorneys Eyes Only. Of course,

designations can always be made at the time of the deposition. So, the only reason for having
the waiting period at all is to allow counsel to make the designation later if counsel forgets to
designate the transcript in the "heat of the battle" without losing the protections of

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the

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protective order. Five days is long enough to make that designation.
Defendants propose that all transcripts be treated as Attorneys Eyes Only until 15 days

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after the transcript is received by the designating party. Including the mailing time,
Defendants' waiting period is about 10-15 days longer than Avocent's waiting period.

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Avocent submits that this is too long. Inevitably, there will be times when the parties are

taking lots of depositions in a short period of time. Counsel may need to share the contents of
Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 10 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

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a transcript with their client to prepare for future depositions before the waiting period expires.

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Indeed, even where a deposition contains no proprietary information whatsoever, the parties
cannot disclose that transcript to any unapproved person until the waiting period has expired.
A vocent does not believe that there is a good reason for extending the waiting period any

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longer than is needed to correct counsel's oversight at the deposition. Avocent believes that
five days after the transcript is available from the court reporter is ample time to make any such
belated designation. Thus, A vocent asks the Court to adopt its proposed language in paragraph

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4 of the proposed protective order.

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III.

CONCLUSION
A vocent requests the Court to adopt its version of the proposed protective order.

DATED this 5th day of April, 2007.
s/Donald L. Jackson John A. Knox, WSBA #12707 WILLIAMS, KASTNER & GIBBS PLLC 601 Union Street, Suite 4100 Seattle, WA 98101-2380 Tel: (206) 628-6600
Fax: (206) 628-6611

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Email: jknox~wkg.com
James D. Berquist 1. Scott Davidson Donald L. Jackson
DAVIDSON BERQUIST JACKSON & GoWDEY, LLP

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21

4300 Wilson Blvd., Suite 700 Arlington, Virginia 22203 Tel: (703) 894-6400 Fax: (703) 894-6430
Email: jay.berquist~davidsonberquist.com

scott. davidson~davidsonberquist. com

22
23

dlj~dbjg.com
Attorneys for Plaintiff A vocent Redmond Corp.

24
25
Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 11 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

Case 1:08-cv-00069-LSM Document 18-2 Case 2:06-cv-01711-MJP Document 57

Filed 04/05/2007 Page 12 of 13 Filed 06/05/2008 Page 16 of 96

1

CERTIFICA TE OF SERVICE

2
3

The undersigned hereby certifies that, on April 5, 2007, the foregoing "Avocent's
Motion for Entry of a Protective Order" was electronically fied with the Clerk of the Court using the CMÆCF system which will send notification of such fiing to the following:

4
5

Counsel for Rose Electronzcs, Peter Macourek, and Darzoush "Davzd" Rahvar:
Molly A. Terwilliger

6 7
8

HELLER EHRAN LLP
701 Fifth Avenue, Suite 6100 Seattle, W A 98104

Michael S. Dowler Thomas L. Casagrande Brian L. Jackson Jeffrey 1. Phillips HOWREY L.L.P.
1 1 1 1 Louisiana, 25th Floor

9 10
11
Counsel for A ten Technology, Inc. and A

Houston, TX 77002 ten Internattonal Co., Ltd:
Richard 1. Codding

12
13

14
15

Thomas F. Ahearne FOSTER PEPPER PLLC 1111 Third Avenue, Suite 3400 Seattle, WA 98101-3299

AKIN GUM STRAUSS HAUER &
FELD LLP 2029 Century Park East Suite 2400 Los Angeles, CA 90067-3012

16 17
18

19

Yitai Hu Ming-Tao Yang AKIN GUM STRAUSS HAUER & FELD LLP 3000 EI Camino Real Suite 400 Palo Alto, CA 94306-2112
Counsel for Trzppe Manufacturzng Company:

20
21

22
23

24
25

Jerry A. Riedinger Ryan 1. McBrayer PERKINS COlE LLP 1201 Third Avenue, 48th Floor Seattle, WA 98101-3099

Larry L. Saret

Dave DeBruin MICHAEL BEST & FRIEDRICH LLP Two Prudential Plaza 180 North Stetson Avenue, Suite 2000 Chicago, IL 60601

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 12 (NO. C06-1711 MJP)
1997223.1

Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

(206) 628-6600

Case 1:08-cv-00069-LSM Document 18-2 Case 2:06-cv-01711-MJP Document 57

Filed 04/05/2007 Page 13 of 13 Filed 06/05/2008 Page 17 of 96

1

Counsel for Belkzn Corporatton:

2
3

Michael A. Moore CORR CRONIN MICHELSON

BAUMGARNER & PREECE LLP
1001 4th Ave Ste 3900
Seattle, W A 98154- 1 051

4
5

David P. Enzminger Ryan K. Yagura Vision L. Winter O'MEL VENY & MYERS LLP 400 South Hope Street Los Angeles, CA 90071-2899

6 7
8

s/Donald L. Jackson Donald L. Jackson

9 10
11

12
13

14
15

16 17
18

19

20
21

22
23

24
25
Wilams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 98111 -3926

A VOCENT' S MOTION FOR ENTRY OF A PROTECTIVE ORDER - 13 (NO. C06-1711 MJP)
1997223.1

(206) 628-6600

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 18of 12 Page 1 of 96

Exhibit 1

14

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 19of 12 Page 2 of 96

1

The Honorable Marsha J. Pechman

2
3

4
5

6
7
8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
A VOCENT REDMOND CORP., a Washington corporation,

9

NO. C06-1711-MJP

Plaintiff,
10

v.
11

12
13

ROSE ELECTRONICS, a Texas general partnership; PETER MACOURK, an individual; DAROUSH "DA VilI! RAV AR, an individual; ATEN TECHNOLOGY INC., a
California corporation; A TEN

PROPOSED
PROTECTIVE ORDER

14
15

INTERNATIONAL CO., LTD., a Taiwanese

Company; TRIPE MANUACTURG
COMP AN, an Ilinois corporation; and BELKIN INTERNATIONAL, INC. (formerly Belkin Corporation), a Delaware corporation,
Defendants.

16 17 18

19

THIS MATTER having come before the Court on Plaintiff Avocent Redmond Corp.'s

20
21

("Avocents") motion for entry of a protective order, and the Court having determined that there
is good cause under Federal Rule of Civil Procedure 26( c) for entry of a protective order to limit

22
23

disclosure of confidential research, development, and commercial information as those terms are
used in Federal Rule of Civil Procedure 26( c )(7), and information that the pary is under a legal
duty to maintain in confidence,

24
25

PROTECTIVE ORDER - 1 (NO. C06-1711 MJP)

Wiliams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

15

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 20of 12 Page 3 of 96

1

THEREFORE, IT is HEREBY ORDERED that:
1.

2
3

Scope. This Protective Order shall govern any information produced or disclosed

in this action by any party or by any third pary.
2.
Proprietary Information. "Proprietary Information" means any information,

4
5

document, electronically stored information, or thing that contains or is a trade secret or other confidential research, development, or commercial information as those terms are used in
Federal Rule of Civil Procedure 26( c )(7), and information that the pary is under a legal duty to

6

7
8

maintain in confidence, provided that such information, document, electronically stored

9

information, or thing is designated as set forth herein. Any Proprietary Information may be
designated as CONFIDENTIAL. Proprietary Information relating to highly sensitive financial
information, including but not limited to, customer identification, sales prices to specific
customers, profit margins and prospective marketing strategies, and highly sensitive technical information, including but not limited to, product design and development materials relating to

10
11

12
13

14
15

products not yet for sale or released to the public, source code, or other highly sensitive, trade

secret technical information not yet publicly disclosed, may be designated as ATTORNYS
EYES ONL Y.

16

17
18

Any party to this action and any third party may designate as CONFIDENTIAL or

ATTORNYS EYES ONLY all or part of the following material: (a) answers to interrogatories
or requests for admission; (b) deposition testimony; (c) documents produced by it or made available for inspection; and (d) any other materials or information produced or disclosed during
the course of this litigation.
3.

19

20
21

22
23

Designation of Documentary MateriaL. Documentary material may be

designated as CONFIDENTIAL or ATTORNYS EYES ONLY by stamping or otherwise
marking each page with the appropriate confidentiality designation and with the identity of

24
25

the

PROTECTIVE ORDER - 2 (NO. C06-1711 MJP)

Willams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

16

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 21of 12 Page 4 of 96

1

classifying party unless it is indicated as part of the production number (e.g., "Plaintiff POOOO 1 ")

2
3

contained on the document. Except with respect to documents produced by any party prior to the

execution by the parties ofthis Stipulated Protective Order, the identification and designation of
Proprietary Information shall be made at the time when the answer to the interrogatory or the
answer to the request for admission is served and when a copy of the document is provided to the

4
5

6 7
8

requesting pary.
Unless otherwise designated or agreed by the parties, all documents made available for
inspection prior to copying and production shall be presumed to have been marked
ATTORNYS EYES ONLY. No documents of

9

the party or third party producing documents

10
11

shall be removed from the site of the inspection or copied until such producing party or third

party has had an opportunity to review and designate such documents in the manner previously
explained.

12
13

With regard to non-written material, such as recordings, magnetic media, photographs

14
15

and things, the designation of any information as CONFIDENTIAL or ATTORNYS EYES
ONLY for purposes of

this Protective Order shall be made by affxing a CONFIDENTIAL or

16
17
18

ATTORNYS EYES ONLY designation to the material, or a container for the material, in any
suitable manner at the time of copying (if any).
4.

Designation of Depositions. Deposition or other oral testimony given in this

19

case may be designated as CONFIDENTIAL or ATTORNEYS EYES ONLY by any party or
third party either (a) during the deposition or proceeding during which the testimony is given, or
(b) by written notice to the court reporter and to all counsel of

20
21

record, within five (5) days after

22
23

the transcript of the deposition or proceeding is available from the court reporter. Unless
otherwise ordered by the Court, pending the expiration of

this five (5) day period, all parties and
it has been designated ATTORNEYS EYES ONLY.

24
25

persons shall treat the testimony as if

PROTECTIVE ORDER - 3 (NO. C06-1711 MJP)

Wiliams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

17

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 22of 12 Page 5 of 96

1

Unless otherwise ordered by the Court, the designating party shall have the right to have all

2
3

persons, except the witness, his or her counsel, the court reporter, and such other persons
authorized to receive the designating party's Proprietary Information pursuant to this Protective Order, excluded from a deposition or proceeding, or any portion thereof, before the taking

4
5

therein of testimony that has been so designated. The court reporter shall mark the cover of the
original and all copies of the transcript or the portion of

6 7
8

the transcript containing testimony

designated as either CONFIDENTIAL or ATTORNYS EYES ONLY with the appropriate
legend.
5.

9

Belated Designation. Notwithstanding the obligations to timely designate

10
11

Proprietary Information under the foregoing paragraphs 3 and 4, nothing contained herein shall

preclude a pary or a third party from later changing that designation and notifying the other
parties in writing of that change; provided, however, that it shall not be deemed a breach of

12
13

this

Order for any action to have been taken by a party or its counsel with respect to such information

14
15

consistent with the original designation of such information prior to receipt of such notice. A
party receiving such written notice shall make every reasonable effort to retrieve any such
materials from persons not authorized to receive them pursuant to this Protective Order and to

16 17 18 19

avoid any further unauthorized disclosure. Any pary that changes the designation of any
materials under this Order shall timely provide the other parties to this action with new copies of
the materials with the new designation(s).
6.

20
21

N on-use. All Proprietary Information shall be used only for purposes of this

litigation.
7.

22
23

Access to CONFIDENTIAL and ATTORNEYS EYES ONLY Materials.

Materials designated CONFIDENTIAL shall not be disclosed to any person except:
a.

24
25

the Court and its officers and staff;

PROTECTIVE ORDER - 4 (NO. C06-1711 MJP)

Wiliams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

18

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 23of 12 Page 6 of 96

1

b.

outside counsel of

record in this action for each party (i.e., counsel of

record for a

2
3

pary who is not an employee of the party or its affiliates) and employees of such outside
counsel;
c.

4
5

outside experts who are not regularly employed by a party and who have been
the litigation, and

expressly retained to assist a party's counsel in the prosecution or defense of

6 7
8

the secretarial, technical and clerical staff of such experts, provided that such experts have been
approved pursuant to paragraph 8 hereof;
d.

current or former employees of the disclosing party during the deposition of such

9 10
11

employees or during examination of such employees at trial;
e.

any party or non-party who authored, received, or reviewed the material prior to

its production in the litigation;
f.
two representatives of Avocent and two representatives of each of

12
13

the defendants

that are identified to opposing counsel, and necessary secretarial personnel of those individuals,

14
15

provided that each such person has first signed a written statement under oath in the form
attached as Exhibit A hereto, and a copy of that statement has been provided to opposing
counsel;
g.
court reporters and videographers, solely for the purpose of

16 17
18 19

transcribing and/or

recording testimony in the litigation;
h.

independent litigation support services personnel, including copying services,

20
21

imaging and coding services, trial exhibit preparation services, solely for the purpose of assisting
a party with the litigation;
1.

22
23

trial consultants, jury consultants, and mock jurors, focus group members and the

like selected by trial consultants, jury consultants or by counsel in preparation for trial; provided

24
25
PROTECTIVE ORDER - 5 (NO. C06-1711 MJP)
Wiliams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

19

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 24of 12 Page 7 of 96

1

that such persons have executed a confidentiality agreement in the form of Exhibit A and such
agreement shall be kept by counsel for reference; and
J.

2
3

other persons as ordered by the Court or agreed to in writing or on the record by

4
5

the parties, provided that each such person has first signed a written statement under oath in the
form attached as Exhibit A hereto, and a copy of

that statement has been provided to opposing

6

counseL.

7
8

Proprietary Information designated as ATTORNEYS EYES ONLY can be disclosed to
those persons designated in iiii 7(a)-7(e) and 7(g)-7(j).

9

This Protective Order has no effect upon and shall not apply to (1) any party's use of its

10
11

own Proprietary Information for any purpose, or (2) any pary's use of documents or other
information developed or obtained independently of discovery in this action for any purose.

12
13

Nothing herein shall bar or otherwise restrict an attorney, who is a qualified recipient
under the terms of paragraph 7(b) of

this Protective Order, from rendering advice to his or her

14
15

client with respect to this action, and in the course thereof, from generally relying upon his or her

examination of Proprietary Information. In rendering such advice or in other communications
with the client, the attorney shall not disclose any Proprietary Information of another party or
third party where such disclosure would not otherwise be permitted under the terms of this
Protective Order.
8.
Approval of

16
17 18

19

Experts. A party seeking to disclose another party's Proprietary

20
21

Information to an outside expert shall serve such other party with a copy of the Undertaking

attached hereto as "Exhibit A" signed by the expert, along with the expert's curent resume,
identifying (by employer and position) all past

22
23

and current employment relating to his or her

field of expertise, including employment as a consultant. The party receiving such Undertaking
and resume shall have ten (10) calendar days after such service within which to object to such

24
25

PROTECTIVE ORDER - 6 (NO. C06-1711 MJP)

Wiliams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380)
Mai1 Address: P.O. Box 21926

Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

20

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 25of 12 Page 8 of 96

1

disclosure. Failure to object within this period shall be deemed approvaL. If

the parties are

2
3

unable to reach agreement within ten (10) days after service of

an objection, the party objecting

to disclosure to an expert shall raise its objection with the Cour within fifteen (15) calendar days
of such service of the obj ection. Failure to raise such objection with the Court within this period

4
5

shall be deemed approval. Any party objecting to disclosure to an expert under this Protective
Order shall bear the burden of proving that it will be hared by such disclosure and that the
protections of

6

7
8

this Order are insuffcient to reasonably protect such paries' proprietary interests.
Filng Proprietary Information. All papers, documents and transcripts

9.

9 10
11

containing or revealing the substance of

Proprietary Information shall be fied under seal through

the Court's CM/ECF system. Without prior written order ofthis Court, the Clerk ofthe Court

shall not permit access to materials filed under seal to anyone other than counsel for the parties.
10.

12
13

Inadvertent Disclosure of Privileged or Immune Materials. Federal Rule of
information that

Civil Procedure 26(b)(5)(B) governs the inadvertent or mistaken production of

14
15 16 17 18 19

is subject to a claim of

privilege or of

protection as trial-preparation materiaL. The inadvertent

disclosure of information that is privileged or otherwise immune from discovery shall not, by
itself, constitute a waiver of

the privilege or immunity.

11.

Disclosure of Proprietary Information to Unauthorized Person(s). If

Proprietary Information is disclosed to any person other than those authorized to receive such

information by this Order, the party responsible for the disclosure shall immediately inform the designating party of all pertinent facts relating to such disclosure and shall make every

20
21

reasonable effort to prevent disclosure by each unauthorized person who received such
information and to obtain the return of such information.
12.

22
23

Conclusion of the Litigation. Within ninety (90) days after entry of a final

24
25

judgment or dismissal with prejudice in this litigation (including appeals or petitions for review)

PROTECTIVE ORDER - 7 (NO. C06-1711 MJP)

Wiliams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

21

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-2

Filed 06/05/2008 Filed 04/05/2007

Page 26of 12 Page 9 of 96

1

finally disposing of all issues raised in this litigation, counsel for the parties and all other persons

2
3

having possession, custody or control of another party's or third party's Proprietary Information
shall: (a) destroy all Proprietary Information and any copies thereof, or (b) if

requested by the

4
5

producing party, return all Proprietary Information and any copies thereof to the producing pary.
Notwithstanding paragraph 12(b), a receiving party shall destroy all Proprietary Information of
another party or third party containing or contained in any notes, summaries, digest, synopses or

6 7
8

other documents created by or on behalf ofthe receiving party. Counsel for each party shall give
a written certification to counsel for all other parties that all of the producing party's Proprietary

9

Information has either been destroyed or returned pursuant to this paragraph. If requested,

10
11

counsel shall also provide the opposing pary with the originals of all Undertaking forms
executed by experts pursuant to paragraph 8.
Notwithstanding the foregoing paragraph, outside counsel may retain (a) copies of

12
13

the

pleadings and other Cour filings, (b) copies of

the deposition, hearing, and trial transcripts and

14
15

any related exhibits, and (c) one fie copy of all materials produced in this litigation that are
specifically referred to in an expert report, a motion, pleading or other paper filed with the Court.
13.

16 17
18

Contested Designations. The parties shall use reasonable care to avoid

designating as CONFIDENTIAL or ATTORNEYS EYES ONLY any documents or information

that has been published or otherwise entered the public domain. A party shall not be obligated to
challenge the propriety of any other party's designation of materials or information as

19

20
21

Proprietary Information at the time such designation is made, and failure promptly to challenge

the designation shall not preclude a subsequent challenge thereto. In the event that a party
disagrees at any stage of these proceedings with the designation of any information as

22
23

CONFIDENTIAL or ATTORNYS EYES ONLY, the parties shall try first to resolve such
dispute in good faith on an informal basis. If

24
25

the dispute canot be resolved, the objecting party

PROTECTIVE ORDER - 8 (NO. C06-1711 MJP)

Williams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

1997247.1

22

Case 1:08-cv-00069-LSM 2:06-cv-01711-MJP

Document 57-2 18-2

Filed 04/05/2007 06/05/2008

Page 10 of 12 27 96

1

may seek appropriate relief from this Court. The party asserting that the material is entitled to confidential treatment shall have the burden of proof. All Proprietary Information shall remain
under the protection of this Order until otherwise ordered by the Court.
14.
Trial Procedures. A party may request that the Court implement appropriate

2
3

4
5

procedures to protect Proprietary Information that may be disclosed at the trial or any hearing in
this matter consistent with the spirit and scope of this Order.
15.

6 7
8

Modifcation. Stipulations may be made between counsel for the respective

parties as to the application of this Order to specific situations provided that such stipulations are
recorded in writing or contained in the record of any oral proceeding. Nothing contained herein
shall preclude any party from seeking an order of

9

10
11

the Court modifying or supplementing this

Order.
16.

12 13

Effect. This Protective Order shall continue in effect until further order of this

Cour.
DATED this
day of April, 2007.

14
15

16 17
18

Marsha J. Pechman UNITED STATES DISTRICT JUGE

19

20
21

22
23

24
25
PROTECTIVE ORDER - 9 (NO. C06-1711 MJP)
Willams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seattle, Washington 9811 1-3926

(206) 628-6600

1997247.1

23

Case 1:08-cv-00069-LSM 2:06-cv-01711-MJP

Document 57-2 18-2

Filed 04/05/2007 06/05/2008

Page 11 of 12 28 96

1

EXHIBIT A
The Honorable Marsha J. Pechman

2
3

4
5

6 7
8
AVO CENT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

REDMOND CORP., a Washington
NO. C06-1711-MJP

9

corporation,

10
11

Plaintiff,
v.

12
13

ROSE ELECTRONICS, a Texas general parership; PETER MACOURK, an individual; DAROUSH "DAVID" RAV AR, an individual; ATEN TECHNOLOGY INC., a
California corporation; A TEN

UNERTAKG AN CONSENT TO
BE BOUN BY PROTECTIVE ORDER

14
15

INTERNATIONAL CO., LTD., a Taiwanese

Company; TRIPPE MANUACTURG
COMPANY, an Ilinois corporation; and BELKI INTERNATIONAL, INC. (formerly Belkin Corporation), a Delaware corporation,
Defendants.

16 17 18

19

20
21

I,
1.

, hereby declare as follows:

My address is

. My
. My current occupation is

22
23

current employer is

24
25
Willams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926
Seatte, Washington 98111-3926

UNDERTAKING AND CONSENT TO BE BOUN BY PROTECTIVE ORDER (EXHIBIT A) - Page 1 (NO. C06-1711 MJP)
1997247.1

(206) 628-6600

24

Case 1:08-cv-00069-LSM 2:06-cv-01711-MJP

Document 57-2 18-2

Filed 04/05/2007 06/05/2008

Page 12 of 12 29 96

1

2.

I have received a copy of the Protective Order entered in the above-captioned
the

2
3

action (the "Protective Order"). I have carefully read and understand the provisions of

Protective Order.
3.
I will comply with all the provisions of

4
5

the Protective Order. I will hold in

confidence, wil not disclose to anyone not qualified under the Protective Order, and will use
only for purposes of this action any Proprietary Information that is disclosed to me.
4.
Promptly upon termination of

6
7
8

this action, I will return all Proprietary Information

that came into my possession, and all documents and things that I have prepared relating thereto,
to counsel for the party by whom I am employed or retained.
5.

9

10
11

I hereby submit to the jurisdiction of this Court for the purpose of enforcement of

the Protective Order in this action.
6.

12
13

I understand that this Undertaking and the Protective Order are enforceable after

the termination of this action.

14
15

I declare under penalty of peijury that the foregoing is true and correct.

16
17
18

Dated:

(Signature)

(Printed Name)
19

20
21

22 23

24
25
UNERTAKIG AND CONSENT TO BE BOUND BY
PROTECTIVE ORDER (EXHIBIT A) - Page 2 (NO. C06-1711 MJP)
1997247.1
Wiliams, Kastner & Gibbs PLLC Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

25

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-3

Filed 06/05/2008 Filed 04/05/2007

Page 30of 12 Page 1 of 96

Exhibit 2

26

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-3

Filed 06/05/2008 Filed 04/05/2007

Page 31of 12 Page 2 of 96

The Honorable Marsha 1. Pechman
2
3

4
5

6 7
8

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
A VOCENT REDMOND CORP., a Washington corporation,
Plaintiff,
v.

9

NO. C06-1711-MJP

10
11

12
13

ROSE ELECTRONICS, a Texas general partnership; PETER MACOUREK, an individual; DARIOUSH "DAVID" RAHV AR, an individual; A TEN TECHNOLOGY INC., a
California corporation; A TEN

(PROPOSED) PROTECTIVE ORDER

14
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INTERNATIONAL CO., LTD., a Taiwanese Company; TRIPPE MANUFACTURING COMPANY, an Ilinois corporation; and BELKIN INTERNATIONAL, INC. (formerly Belkin Corporation), a Delaware corporation,
Defendants.

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THIS MATTER having come before the Court on Plaintiff Avocent Redmond Corp.'s
("A vocent s") motion for entry of a protective order, and the Court having determined that there
is good cause under Federal Rule of Civil Procedure 26( c) for entry of a protective order to limit

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disclosure of confidential research, development, and commercial information as those terms are
used in Federal Rule of Civil Procedure 26( c )(7), and information that the part is under a legal

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duty to maintain in confidence,

(PROPOSED) PROTECTIVE ORDER - 1 (NO. C06-1711 MJP)

Wiliams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

27

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-3

Filed 06/05/2008 Filed 04/05/2007

Page 32of 12 Page 3 of 96

THEREFORE, IT is HEREBY ORDERED that:
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1.

Scope. This Protective Order shall govern any information produced or disclosed

in this action by any part or by any third part.
2.
Proprietary Information. "Proprietary Information" means any information,

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document, electronically stored information, or thing that contains or is a trade secret or other
confidential research, development, or commercial information as those terms are used in
Federal Rule of

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Civil Procedure 26(c)(7), and information that the part is under a legal duty to

maintain in confidence, provided that such information, document, electronically stored

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information, or thing is designated as set forth herein. Any Proprietary Information may be designated as CONFIDENTIAL. Proprietary Information relating to highly sensitive financial
information, including but not limited to, customer identification, sales prices to specific
customers, profit margins and prospective marketing strategies, sales and cost information,

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trends, projections, marketing stmtegies and associated information, and highly sensitive
technical information, including but not limited to, product design and development materials relating to products not yet for sale or released to the public,_schematics, gerber fies, layouts,
source code, CA,D dravllngs, specifications, or other highly sensitive, trade secret technical

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information not yet publicly disclosed, may be designated as ATTORNEYS EYES ONLY.

Any party to this action and any third part may designate as CONFIDENTIAL or
ATTORNEYS EYES ONLY all or part ofthe following material: (a) answers to interrogatories
or requests for admission; (b) deposition testimony; (c) documents produced by it or made
available for inspection; and (d) any other materials or information produced or disclosed during
the course of

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this litigation.
Designation of

3.

Documentary MateriaL. Documentary material may be

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designated as CONFIDENTIAL or ATTORNEYS EYES ONL Y by stamping or otherwise
marking each page with the appropriate confidentiality designation and with the identity of

the
Wiliams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

(PROPOSED) PROTECTIVE ORDER - 2 (NO. C06-1711 MJP)

28

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-3

Filed 06/05/2008 Filed 04/05/2007

Page 33of 12 Page 4 of 96

classifying part unless it is indicated as part of

the production number (e.g., "PlaintiffPOOOOl")

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contained on the document. Except with respect to documents produced by any part prior to the
execution by the parties ofthis Stipulated Protective Order, the identification and designation of
Proprietary Information shall be made at the time when the answer to the interrogatory or the
answer to the request for admission is served and when a copy of

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the document is provided to the

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requesting part.

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Unless otherwise designated or agreed by the parties, all documents made available for
inspection prior to copying and production shall be presumed to have been marked
ATTORNYS EYES ONLY. No documents of

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the party or third party producing documents
the inspection or copied until such producing party or third

shall be removed from the site of

part has had an opportunity to review and designate such documents in the manner previously

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explained.

With regard to non-written material, such as recordings, magnetic media, photographs
and things, the designation of any information as CONFIDENTIAL or ATTORNEYS EYES
ONLY for purposes of

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this Protective Order shall be made by affxing a CONFIDENTIAL or

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ATTORNEYS EYES ONLY designation to the material, or a container for the material, in any
suitable manner at the time of copying (if any).
4.

Designation of Depositions. Deposition or other oral testimony given in this

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case may be designated as CONFIDENTIAL or ATTORNEYS EYES ONLY by any part or
third party either (a) during the deposition or proceeding during which the testimony is given, or
(b) by written notice to the court reporter and to all counsel of

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record, within Hffive (l-5)

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days after the transcript of

the deposition or proceeding is available from the court

reporterreceived by the party making the designation. Unless otherwise ordered by the Court,

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pending the expiration ofthis fivefi (+5) day period, all parties and persons shall treat the
testimony as if it has been designated ATTORNEYS EYES ONLY. Unless otherwise ordered
(PROPOSED) PROTECTIVE ORDER - 3 (NO. C06-1711 MJP)
Wiliams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

29

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-3

Filed 06/05/2008 Filed 04/05/2007

Page 34of 12 Page 5 of 96

by the Court, the designating part shall have the right to have all persons, except the witness, his
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or her counsel, the court reporter, and such other persons authorized to receive the designating
part's Proprietary Information pursuant to this Protective Order, excluded from a deposition or
proceeding, or any portion thereof, before the taking therein of

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testimony that has been so
the original and all copies of

designated. The court reporter shall mark the cover of

the transcript

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or the portion of

the transcript containing testimony designated as either CONFIDENTIAL or

ATTORNEYS EYES ONLY with the appropriate legend.
5.

Belated Designation. Notwithstanding the obligations to timely designate

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Proprietary Information under the foregoing paragraphs 3 and 4, nothing contained herein shall
preclude a part or a third party from later changing that designation and notifying the other
parties in writing of that change; provided, however, that it shall not be deemed a breach of

this

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Order for any action to have been taken by a part or its counsel with respect to such information
consistent with the original designation of such information prior to receipt of such notice. A

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part receiving such written notice shall make every reasonable effort to retrieve any such
materials from persons not authorized to receive them pursuant to this Protective Order and to

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avoid any further unauthorized disclosure. Any party that changes the designation of any
materials under this Order shall timely provide the other parties to this action with new copies of
the materials with the new designation(s).
6.
Non-use. All Proprietary Information shall be used only for purposes of

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this

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litigation.
7.

Access to CONFIDENTIAL and ATTORNEYS EYES ONLY Materials.

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Materials designated CONFIDENTIAL shall not be disclosed to any person except:
a.

the Court and its officers and staff;

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Wiliams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

(PROPOSED) PROTECTIVE ORDER - 4 (NO. C06-1711 MJP)

30

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP

Document 18-2 Document 57-3

Filed 06/05/2008 Filed 04/05/2007

Page 35of 12 Page 6 of 96

1

b.

outside counsel of record in this action for each part (i. e., counsel of record for a

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part who is not an employee of

the part or its affiliates) and employees of such outside

counsel;
c.

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outside experts who are not regularly employed by a party and who have been
the litigation, and

expressly retained to assist a part's counsel in the prosecution or defense of

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the secretarial, technical and clerical staff of such experts, provided that such experts have been
approved pursuant to paragraph 8 hereof;
d.
current or former employees of

the disclosing part during the deposition of such

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employees or during examination of such employees at trial;
e.

any party or non-part who authored, received, or reviewed the material prior to

its production in the litigation;
f.

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two representatives of A vocent and two representatives of each of the defendants

that are identified to opposing counsel, and necessary secretarial personnel of

those individuals,

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provided that each such person has first signed a written statement under oath in the form

attached as Exhibit A hereto, and a copy ofthat statement has been provided to opposing
counsel;
g.
court reporters and videographers, solely for the purpose of

transcribing and/or

recording testimony in the litigation;
h.

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independent litigation support services personnel, including copying services,

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imaging and coding services, trial exhibit preparation services, solely for the purpose of assisting
a part with the litigation;
1.

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trial consultants, jury consultants, and mock jurors, focus group members and the

like selected by trial consultants, jury consultants or by counsel in preparation for trial; provided

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that such persons have executed a confidentiality agreement in the form of Exhibit A and such
agreement shall be kept by counsel for reference; and
(PROPOSED) PROTECTIVE ORDER - 5 (NO. C06-1711 MJP)
Wiliams, Kastner & Gibbs PLLC
Two Union Square, Suite 4100 (98101-2380) Mail Address: P.O. Box 21926 Seattle, Washington 98111-3926 (206) 628-6600

31

Case 1:08-cv-00069-LSM Case 2:06-cv-01711-MJP