MasterObjects, Inc. v. Amazon.com, Inc.

Background

The parties jointly stipulated to a protective order because discovery could involve confidential, proprietary, private, and trade-secret information. The order governs disclosure and discovery materials produced by the parties or nonparties in this patent litigation. It does not automatically make every disclosure confidential and does not itself authorize filing protected information under seal.

Protective classifications and access

The order creates three categories of protected material: “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” and “HIGHLY CONFIDENTIAL – SOURCE CODE.” Producing parties must use specific labels and limit designations to material that qualifies for protection. Receiving parties may use protected material only to prosecute, defend, or attempt to settle the litigation, and must store it securely.

“CONFIDENTIAL” information may be disclosed to specified counsel, personnel, experts, court personnel, court reporters, vendors, certain witnesses, and others identified in the order, generally subject to signed agreements. Attorneys’-eyes-only and source-code material may be disclosed to a narrower group, including outside counsel, qualifying experts, court personnel, and certain vendors. The order provides procedures for seeking disclosure to designated in-house counsel or experts and assigns burdens for resolving objections.

Challenges, sealing, and source code

A party or nonparty may challenge a confidentiality designation. The parties must first meet and confer. If the dispute remains unresolved, the designating party generally must move to retain confidentiality within the specified deadlines, or the designation may be waived. The designating party bears the burden of persuasion in a confidentiality challenge.

The order requires a separate court order before protected material may be filed under seal. A sealing request must address the standards for sealing and the specific material at issue. The order also includes a two-year prosecution bar for individuals who receive attorneys’-eyes-only or source-code material, restricting their involvement in prosecution of patents or patent applications relating to predictive search, unless the producing party consents in writing.

If source code is produced, it generally must be reviewed on a secured computer in a secured room without internet or network access. The order limits copying and electronic devices, permits restricted note-taking, governs limited paper printouts, and requires records of people who inspect the source code. A COVID-19 addendum allows remote source-code review under specified computer, virtual private network, security, and notice requirements while relevant restrictions remain in effect.

Final disposition and ruling

After final disposition of the action, receiving parties generally must return or destroy protected material within 60 days and certify that they have not retained copies, subject to counsel’s right to keep certain archival materials that remain protected. The order also addresses subpoenas from other litigation, nonparty confidential information, inadvertent disclosures, privileged material, export controls, and requests to modify the order.

Judge P. Kevin Castel entered the stipulated protective order. The order did not decide the parties’ patent claims or other merits issues. It also states that the joint motion identified as Document 50 was terminated.