Order Amending Stipulated Protective Order.
Re: Sun Microsystems v. Microsoft, U.S.D.C., N.D. Cal., San Jose, Case No. 97-20884.
Date: August 7, 1998.
Source: Microsoft.

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

The motions of the San Jose Mercury News. Inc, ZDTV LLC, ZDNet and PC Week (collectively the "Media Entities) to intervene for the purpose of asserting First Amendment and common law challenges to certain filings in this case that have been or will be made and Sun's motion to unseal its motion for preliminary injunctive relief based on unfair competition were heard on July 31, 1998. Based upon the motions filed, the responding papers and the arguments of counsel,

IT IS HEREBY ORDERED:

1. This Order shall supplement and modify the Stipulated Protective Order and shall govern the handling of motions, briefs, declarations, exhibits and other documents (collectively "Filings") that are filed under seal with the District Court pursuant to the Stipulated Protective Order

2. The Media Entities motion to intervene is GRANTED for the limited purpose of asserting First Amendment and common law challenges to documents that have been or will be filed under seal in accordance with the procedures prescribed in this Order. Edward Davis, Jr. of the Genesis Law Group is hereby appointed as lead coordinating counsel for the intervening Media Entities to receive service, orders and communications.

3. On or before August 19, 1998, the Parties and the Media Entities shall submit to the court a proposed, agreed-upon Special Master. If the parties are unable to agree on a Special Master, they shall exchange their proposed nominations by August 17, 1998. The parties shall submit their nominations together with any objections to the nominations by August 19, 1998. The parties are to ensure that the proposed, agreed-upon Special Master or any proposed nominee is willing to act as Special Master in this case. The cost of the Special Master shall be shared equally by Sun and Microsoft unless otherwise ordered by the court.

4. On or before August 27, 1998, the Parties shall: (1) review all materials that are designated CONFIDENTIAL MATERIALS and ATTORNEYS ONLY MATERIALS by a party (the "Designated Party") pursuant to the Stipulated Protective Order and contained in Sun's Motions for Preliminary Injunction and Microsoft's Oppositions thereto; (2) undesignate those CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS that the Designating Party deems not to contain "trade secrets or other confidential research, development, or commercial information," as those terms are used in Federal Rule of Civil Procedure 26(c)(7); (3) unseal the Motions for Preliminary Injunction and Opposition that contain materials that a Designating Party has undesignated or unredacted; and (4) submit to the Special Master for in-camera review the CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS contained in the Motions for Preliminary Injunction and Oppositions that remain under seal and that contain CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS that have not been undesignated.

5. On August 27, 1998, the Parties and the Media Entities may submit to the Special Master concise briefs setting forth the appropriate standard for evaluating the various interests at stake under the existing and relevant case law, and for assessing whether CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS constitute "trade secrets or other confidential research, development, or commercial information" as defined by Federal Rule of Civil Procedure 26(c)(7) and the relevant and applicable case law.

6. With regard to all Filings listed in the motions of the Media Entities that are currently under seal except for Sun's Motions for Preliminary Injunction, within forty-five(45) days from the date of this Order, the Parties shall complete the procedures prescribed above in paragraph 4 for such Filings.

7. The Special Master shall review as expiditiously as possible all CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS subnmitted for its review and shall submit a report of its findings to Jude Whyte, as well as the Parties and the Media Entities. The Special Master's report which is served on the Media Entities shall have all CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS redacted out. Any objections to any aspect of the Special Master's report shall be made within five (5) days of service of the report. A decision on any portion of the materials sealed or redacted in connection with Sun's Motions for Preliminary Injunction will be made at or before the time the court rules on Sun's motions.

8. Except for the filings noted in paragraph 4 of this Order, with resoect to all Filings afterthe date of this Order that contain CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS and are therefore subject to being filed under seal pursuant to the Stipulated Protective Order, the Parties shall file under seal any information marked pursuant to the Stipulated Protective Order as CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS. No later than one business day following the filing of a document under seal, the Parties shall file and serve on the Media Entities by serving the lead coordinating counsel for the Media Entities, a version of the document with the CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS redacted out. Unredacted versions of said Filings shall be simultaniously filed under seal with the Special Master.

9. Within seven (7) days from the date on which a filing is made pursuant to paragraph 8, the party that designated as CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS the information that is filed under seal, or is redacted from Filings, shall serve on the other party and the Media Entities a statement of the basis for having the Filing be made under seal (the "Statement"). The Statment may be made in the form of a "Confidentiality Log," a smaple of which is attached hereto as Exhibit A.

10. Within seven (7) days of receiving the Stament, the Media Entities may file a challenge to any of the Filings made pursuant to paragraph 8 above. Within five (5) days after receiving such challenge, the Parties shall reply as necessary to the challenge of the Media Entities.

11. Upon receiving a challenge made pursuant to paragraph 10, the Special Master shall reveiw the CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS that are contained int he Filings under seal under the Stipulated Protective Order and report in-camera its findings to Juge Whyte, as well as the Parties and the Media Entities. The Special Master's report which is served on the Media Entities shall have all CONFIDENTIAL MATERIALS and ATTORNEY ONLY MATERIALS redacted out. Any objections to any of the Special Master's report shall be made within five (5) days of services of the report.

12. The procedures in this Order will ot apply to exhibits attached to discovery proceedings.

DATED: 8/7/98

____________________________
RONALD M. WHITE
United States District Judge

EXHIBIT A

JOINT CONFIDENTIALITY LOG