Shunock v. Apple, Inc.

Nature of the Order

The court entered an agreed protective order under Federal Rule of Civil Procedure 26(c). Michael Shunock is identified as the plaintiff and counterclaim defendant, and Apple Inc. is identified as the defendant and counterclaim plaintiff. The order addresses discovery materials that may contain confidential, proprietary, trade-secret, commercially sensitive, or personally identifying information. It does not resolve the merits of the parties’ claims or counterclaims.

Confidentiality Designations and Permitted Uses

The order establishes two designations: “CONFIDENTIAL” and “CONFIDENTIAL—ATTORNEYS’ EYES ONLY.” Protected material may be used only for this case and related appeals, not for other litigation, patent prosecution or acquisition, patent-review proceedings, or business or competitive purposes. Publicly disseminated advertising and materials that show on their face that they were distributed publicly are excluded from protected material.

“CONFIDENTIAL” materials may generally be disclosed to outside counsel, specified Apple representatives, approved experts and consultants, litigation-support personnel, the court and its personnel, certain trial-support personnel, mock jurors who agree to confidentiality, a mediator and staff, and others with the producing party’s written consent. “CONFIDENTIAL—ATTORNEYS’ EYES ONLY” materials are subject to tighter limits, generally allowing disclosure to qualified outside counsel, certain Apple in-house counsel when the material was produced by Shunock, approved experts and consultants, court personnel, specified trial-support personnel, a mediator and staff, and others with written consent.

Patent Prosecution Bar

A person on Shunock’s behalf who receives Apple’s attorneys’-eyes-only material may not use that material in specified activities involving patent applications, patent claims, patent acquisition, or related proceedings concerning designs or technology for fitness and health tracking. The restriction begins when the person first receives the material and ends two years after final resolution of the action, including appeals. The order states that the restrictions do not prevent counsel from participating in proceedings challenging a patent’s validity, but do restrict participation on behalf of a patent owner in certain review, reexamination, and reissue proceedings.

Disclosure Procedures and Challenges

Before disclosing protected material to specified representatives, experts, or consultants, the disclosing party must provide written information about the proposed recipient, including the person’s name, curriculum vitae, employer and title, professional relationships, relevant patent applications, and recent deposition or trial testimony. The producing party has seven days to object for good cause. The parties must then meet and confer, and an unresolved objection may be presented to the court within the time limits in the order. The recipient must sign an agreement to be bound before receiving protected material.

A party may challenge a confidentiality designation later and need not do so when the designation is first made. The parties must first meet and confer. If they cannot agree, the receiving party may ask the court to change or remove the designation. The material remains protected unless the designating party withdraws the designation or the court rules otherwise.

Security, Breaches, and Court Filings

Receiving parties must maintain protected material securely in the United States and may not export it or release it to a foreign national. They must use an information-security system meeting at least one recognized cybersecurity framework, use multifactor authentication, and encrypt protected material in transit outside covered networks and at rest when reasonably practical. A receiving party that learns of a data breach potentially affecting protected material must notify the producing party in writing no later than 48 hours after learning of both the breach and the potential impact on the producing party’s material. The parties must cooperate regarding investigation, remediation, and possible discovery or schedule changes.

Protected material may not be filed publicly without the producing party’s written permission or a court order. The order authorizes parties to seek permission to file such materials under seal, consistent with applicable court rules and Judge Rochon’s individual practices.

Privilege, Return, and Continuing Effect

Under Federal Rule of Evidence 502, inadvertent production of privileged or work-product-protected material does not waive the protection. Upon request, receiving parties must return or destroy the material, subject to limited recordkeeping for a possible motion to compel. Similar procedures apply when a producing party inadvertently fails to designate material as protected or when material is disclosed to an unauthorized person.

Within 90 days after final disposition, each party must return or destroy the producing party’s discovery materials, at the producing party’s option, and provide written certification. Outside counsel may retain one archival set of certain pleadings, correspondence, and attorney or consultant work product, but not document productions. The confidentiality obligations continue after termination of the case, and the court retains jurisdiction to resolve disputes arising from the protective order.

Disposition

The order concludes with “SO ORDERED” and is dated April 29, 2024. The court therefore entered the agreed protective order; it did not decide the underlying claims or counterclaims.