SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
STIPULATION AND [PROPOSED] PROTECTIVE ORDER GOVERNING CONFIDENTIAL INFORMATION
Filed: March 15, 2023
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PREAMBLE AND RECITALS
Plaintiff Lumos Analytics Inc. ("Lumos" or "Plaintiff"), by and through its counsel of record, Calderwood & Harkness LLP, and Defendants NovaSpark Technologies Inc. ("NovaSpark"), Rajiv Anand, Serena Mallick, and Derek Yun (collectively, "Defendants" and, where referring only to the individual persons, the "Individual Defendants"), by and through their counsel of record, Whitfield, Raines & Gerber LLP, hereby stipulate and agree to the entry of this Protective Order Governing Confidential Information (this "Protective Order" or "Order") on the following terms and subject to the approval of this Court.
WHEREAS, this Action involves claims asserted by Plaintiff against Defendants under the California Uniform Trade Secrets Act, California Civil Code Sections 3426 through 3426.11, as well as claims for breach of contract, breach of the duty of loyalty, unfair business practices under California Business and Professions Code Section 17200 et seq., and conversion, all as more fully set forth in Plaintiff's Verified Complaint;
WHEREAS, the Verified Complaint in this Action was filed on January 19, 2023; a Temporary Restraining Order was granted by this Court on January 23, 2023, restraining Defendants from using, disclosing, or disseminating Plaintiff's proprietary information and trade secrets; and a Preliminary Injunction Order was issued on February 17, 2023, continuing and expanding the restrictions imposed by the Temporary Restraining Order pending resolution of this Action on the merits;
WHEREAS, the parties anticipate that discovery in this Action will involve the exchange of highly sensitive and proprietary information, including, without limitation, Lumos trade secrets relating to its LumosEdge product suite. Such trade secrets encompass the proprietary ensemble machine-learning model architecture and associated hyperparameter configurations, feature-engineering libraries comprising 2,847 individually engineered features, the DataStream ETL pipeline codebase and data-schema definitions covering ingestion workflows from forty-three (43) alternative-data vendors, curated training datasets of approximately 14.6 terabytes in aggregate volume, and confidential product roadmap documents for LumosEdge 3.0 (consisting of thirty-seven (37) pages of strategic planning, product specifications, and competitive positioning analyses). Discovery will also involve Defendants' proprietary business information, NovaSpark product development records, NovaSpark source code and architecture documents, investor communications and capitalization records, and financial information of the parties and non-parties;
WHEREAS, the parties agree that good cause exists for the entry of this Protective Order to prevent the disclosure of confidential, proprietary, and trade-secret information beyond the scope of this litigation, and to establish clear protocols for the designation, handling, storage, and use of such information in a manner consistent with the interests of justice and the parties' legitimate interests in protecting their respective proprietary information;
WHEREAS, entry of this Protective Order is consistent with and complementary to the Stipulation and Order Appointing Neutral Forensic Examiner filed March 8, 2023, pursuant to which the parties stipulated to the appointment of Brindoval Digital Forensics LLC as the neutral forensic examiner in this Action, and this Protective Order shall govern all materials produced or generated in connection with that forensic examination as well as all other discovery in this Action; and
WHEREAS, the parties have conferred and reached agreement on the terms set forth herein and believe that entry of this Protective Order will facilitate the efficient and orderly conduct of discovery while safeguarding the legitimate confidentiality interests of all parties and non-parties;
NOW, THEREFORE, the parties hereby stipulate and respectfully request that the Court enter the following Protective Order:
SECTION 1: DEFINITIONS
As used in this Protective Order, the following terms shall have the meanings set forth below:
1.1 "Action" shall mean Lumos Analytics Inc. v. NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun, Case No. 23-CV-004871, pending in the Superior Court of the State of California, County of Santa Clara, and assigned to the Honorable David Rutherford, including all proceedings, motions, hearings, trials, and appeals arising therefrom.
1.2 "Producing Party" shall mean any party or non-party to this Action that produces, discloses, or generates information or materials in discovery and designates such information or materials as confidential under this Order. The term "Producing Party" shall also include the Neutral Forensic Examiner to the extent Brindoval Digital Forensics LLC produces forensic images, reports, or other work product subject to designation under this Order.
1.3 "Receiving Party" shall mean any party or non-party to this Action that receives information or materials designated as confidential under this Order, whether directly from the Producing Party, through the Neutral Forensic Examiner, or through any other means contemplated by the discovery process in this Action.
1.4 "Discovery Material" shall mean all documents, electronically stored information ("ESI"), interrogatory responses, responses to requests for admission, requests for production responses, deposition testimony (including both oral testimony and testimony upon written questions), deposition exhibits, forensic reports, forensic images, forensic analysis work product, expert reports, expert declarations, witness declarations, and all other materials or information produced, disclosed, or generated in connection with discovery in this Action. The term "Discovery Material" shall include, without limitation, materials produced by or through the Neutral Forensic Examiner, Brindoval Digital Forensics LLC, as well as materials produced by non-parties in response to subpoenas or requests issued in this Action. The term also encompasses any copies, summaries, abstracts, compilations, or derivative works created from such materials.
1.5 "Confidential Information" shall mean any discovery Material that has been designated as "CONFIDENTIAL" pursuant to Section 3 of this Order. Confidential Information constitutes the first tier of protection under this Order.
1.6 "Attorneys' Eyes Only Information" shall mean any discovery Material that has been designated as "ATTORNEYS' EYES ONLY" pursuant to Section 3 of this Order. Attorneys' Eyes Only Information constitutes the highest and most restrictive tier of protection under this Order and is subject to the additional access limitations specified in Section 5.2 and Section 5.3.
1.7 "Designating Party" shall mean the party that applies a confidentiality designation to discovery Material under one of the two confidentiality tiers established by this Order. In the case of materials produced by the Neutral Forensic Examiner, the Designating Party shall be the party whose information is contained in or reflected by such materials, or, where the materials reflect information of multiple parties, the parties shall confer and agree upon the appropriate designation in accordance with Section 9.1.
1.8 "Counsel of Record" shall mean the following attorneys and law firms, together with their partners, associates, paralegals, litigation support staff, and administrative staff who are actively working on matters related to this Action:
(a) For Plaintiff Lumos Analytics Inc.: Calderwood & Harkness LLP, with its principal office for purposes of this Action at 555 California Street, 40th Floor, San Francisco, California 94104. The attorneys at Calderwood & Harkness LLP assigned to this Action include Marcus Delgado (Responsible Partner), Catherine Bloom (Billing Partner), Wendy Schultz (Lead Associate), and Omar Siddiqui (Working Associate), together with such additional attorneys, paralegals, and staff as may be assigned from time to time.
(b) For Defendants NovaSpark Technologies Inc., Rajiv Anand, Serena Mallick, and Derek Yun: Whitfield, Raines & Gerber LLP, with its office at 235 Montgomery Street, Suite 1800, San Francisco, California 94104. The attorneys at Whitfield, Raines & Gerber LLP assigned to this Action include Patricia Whitfield (Lead Partner) and Samuel Gerber (Senior Associate), together with such additional attorneys, paralegals, and staff as may be assigned from time to time.
If any party retains additional or substitute counsel, such counsel shall be subject to this Order and shall be deemed "Counsel of Record" upon the filing of a substitution of attorney or an association of counsel with the Court.
1.9 "Qualified Person" shall mean any individual who is authorized to access Confidential Information or Attorneys' Eyes Only Information under the terms of Section 5 of this Order. The categories of Qualified Persons differ depending on the tier of confidentiality designation, as set forth in Sections 5.1 and 5.2.
1.10 "Neutral Forensic Examiner" shall mean Brindoval Digital Forensics LLC, with offices at 1901 Harrison Street, Suite 600, Oakland, California 94612, appointed by stipulation and order of this Court dated March 8, 2023, to serve as the neutral forensic examiner in this Action. The primary personnel of Brindoval Digital Forensics LLC assigned to this engagement are Dr. Irene Chow (Managing Director and Lead Forensic Examiner) and Kevin Barr (Senior Forensic Analyst). The Neutral Forensic Examiner and its personnel are bound by the terms of this Order and the Stipulation and Order Appointing Neutral Forensic Examiner.
1.11 "Technical Consultant" shall mean any expert, consultant, or technical advisor retained by a party in connection with this Action for the purpose of providing expert analysis, testimony, or consultation on technical matters, including but not limited to computer science, machine learning, data engineering, cybersecurity, digital forensics, and related disciplines. As of the date of this Order, the following Technical Consultant has been retained: Meridian Cybersecurity Advisors Inc., with offices at 2100 Geng Road, Suite 210, Palo Alto, California 94303, retained by Plaintiff, with Naveen Kapoor serving as the Senior Consultant assigned to this engagement. Additional Technical Consultants may be retained by either party, subject to the requirements of Section 10 of this Order.
SECTION 2: SCOPE OF PROTECTIVE ORDER
2.1 This Protective Order governs all discovery Material produced, disclosed, generated, or obtained in this Action, whether such material is produced by the parties, the Neutral Forensic Examiner, non-parties responding to subpoenas, or any other source in connection with the discovery process. The protections afforded by this Order extend to all forms and formats in which discovery Material may exist, including paper documents, electronic files, databases, forensic images, audio and video recordings, and any other medium.
2.2 Without limiting the generality of the foregoing, this Order applies to: (a) documents and ESI produced in response to requests for production; (b) deposition testimony, whether oral or upon written questions, and all deposition exhibits; (c) interrogatory responses, including responses to Plaintiff's First Set of Special Interrogatories to Rajiv Anand and Plaintiff's First Set of Special Interrogatories to NovaSpark Technologies Inc., both served March 20, 2023, and all future interrogatories; (d) responses to requests for admission; (e) forensic images of devices, servers, and cloud storage accounts collected by the Neutral Forensic Examiner; (f) forensic reports, including the Preliminary Forensic Report and any Final Forensic Remediation Certification issued by Brindoval Digital Forensics LLC; (g) expert reports and declarations; (h) declarations submitted in connection with motions or other proceedings; and (i) any other materials exchanged, produced, or generated in connection with discovery in this Action.
2.3 Notwithstanding the foregoing, this Order does not apply to information that:
(a) is or becomes publicly available through no fault of the Receiving Party or any person to whom the Receiving Party disclosed such information;
(b) was already lawfully in the Receiving Party's possession prior to disclosure in this Action, without any obligation of confidentiality to the Producing Party;
(c) is received by the Receiving Party from a third party who is not bound by this Order and who is not under an obligation of confidentiality to the Producing Party with respect to such information; or
(d) is independently developed by the Receiving Party without reference to, reliance upon, or use of any Confidential Information or Attorneys' Eyes Only Information produced in this Action.
The burden of establishing that any of the foregoing exceptions applies shall rest with the party asserting the exception.
2.4 This Order does not limit, modify, supersede, or otherwise affect the Temporary Restraining Order granted by this Court on January 23, 2023, or the Preliminary Injunction Order issued by this Court on February 17, 2023. The obligations imposed by this Order are in addition to, and not in lieu of, any obligations imposed by the Court's injunctive orders. In the event of any conflict between the terms of this Protective Order and the terms of the Temporary Restraining Order or Preliminary Injunction Order, the Court's injunctive orders shall control.
SECTION 3: DESIGNATION OF CONFIDENTIAL INFORMATION
3.1 Confidentiality Tiers
This Protective Order establishes two tiers of confidentiality designation for discovery Material:
(a) "CONFIDENTIAL" — the first tier of protection, governed by Section 3.2; and
(b) "ATTORNEYS' EYES ONLY" — the highest and most restrictive tier of protection, governed by Section 3.3.
Each Producing Party shall exercise good faith and reasonable judgment in designating discovery Material under the appropriate tier. A Producing Party shall not designate material at a higher tier than is warranted by the nature and sensitivity of the information contained therein. Blanket or indiscriminate designations are discouraged, and any such designations may be challenged pursuant to Section 4 of this Order.
3.2 "CONFIDENTIAL" Designation
A Producing Party may designate discovery Material as "CONFIDENTIAL" if the material contains or reflects non-public business, financial, technical, or other proprietary information that the Producing Party maintains in confidence in the ordinary course of business, and the disclosure of which to persons outside the scope of this litigation would reasonably be expected to cause harm to the Producing Party's business interests or competitive position.
By way of illustration and not limitation, discovery Material that may be appropriately designated as "CONFIDENTIAL" includes:
(a) NovaSpark Technologies Inc. financial records, revenue data, investor communications, and capitalization information;
(b) Lumos Analytics Inc. internal business communications, including internal memoranda, emails, and Meridian Solutions messages relating to business strategy, personnel decisions, and competitive analysis;
(c) Personnel files and employment records of the Individual Defendants and other current or former employees of Lumos or NovaSpark;
(d) The Proprietary Information and Inventions Assignment Agreements ("PIIAAs") executed by Rajiv Anand, Serena Mallick, and Derek Yun in connection with their employment at Lumos Analytics Inc., including any restrictive covenant provisions, non-competition clauses, non-solicitation clauses, and invention assignment provisions contained therein;
(e) Materials produced by or obtained from Blackpine Capital Partners LP, including pitch decks, funding term sheets, due diligence materials, and related investor correspondence;
(f) General business records of the parties, including organizational charts, board meeting minutes, and strategic planning documents not rising to the level of trade secret protection; and
(g) Such other materials as a Producing Party reasonably and in good faith determines contain or reflect non-public proprietary information warranting protection from public disclosure.
3.3 "ATTORNEYS' EYES ONLY" Designation
A Producing Party may designate discovery Material as "ATTORNEYS' EYES ONLY" if the material contains or reflects trade secrets, highly sensitive proprietary technology, source code, algorithms, model architectures, training data, feature-engineering specifications, data-pipeline configurations, or other extremely sensitive competitive information, the disclosure of which to any individual other than Counsel of Record and their staff would pose a serious risk of competitive harm to the Producing Party.
The "ATTORNEYS' EYES ONLY" designation is reserved for the most sensitive materials in this Action. By way of illustration and not limitation, the following categories of discovery Material may be appropriately designated as "ATTORNEYS' EYES ONLY":
(a) Lumos's LumosEdge proprietary ensemble machine-learning model architecture, including neural network topologies, gradient boosting configurations, ensemble weighting schemes, and hyperparameter configurations;
(b) Lumos's proprietary feature-engineering libraries, comprising 2,847 individually engineered features, including feature definitions, transformation logic, and feature-selection methodologies;
(c) The DataStream ETL (Extract, Transform, Load) pipeline codebase and data-schema definitions, including ingestion workflows, data normalization routines, and API integration specifications covering data feeds from forty-three (43) alternative-data vendors;
(d) Lumos's curated training dataset, comprising approximately 14.6 terabytes of structured and unstructured data used to train and validate the LumosEdge machine-learning models;
(e) The confidential LumosEdge 3.0 Product Roadmap, consisting of thirty-seven (37) pages of strategic product planning, feature specifications, release timelines, and competitive positioning analyses;
(f) NovaSpark Technologies Inc. source code, product architecture documents, model specifications, and product development materials;
(g) Forensic images and forensic analysis reports produced by the Neutral Forensic Examiner (Brindoval Digital Forensics LLC) that contain, reference, or are derived from any of the materials described in subparagraphs (a) through (f) above; and
(h) Such other materials as a Producing Party reasonably and in good faith determines contain or reflect trade secrets or extremely sensitive competitive information warranting the highest tier of protection under this Order.
3.4 Manner of Designation — Documents and ESI
For documents and ESI produced in discovery, the Producing Party shall designate materials by stamping or labeling each page of a document, or each electronic file, with the applicable designation — "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" — in a conspicuous manner. For documents produced in TIFF or PDF image format, the designation shall appear as a stamp or footer on each page. For documents produced in native electronic format, the Producing Party shall provide a corresponding designation log that identifies each item by Bates number, file name, or other unique identifier and specifies the applicable confidentiality tier. The designation log shall be provided contemporaneously with the production of the materials to which it relates.
If a Producing Party inadvertently fails to designate materials at the time of production, it may subsequently designate such materials by providing written notice to the Receiving Party identifying the materials and the applicable designation. Upon receipt of such notice, the Receiving Party shall promptly treat the identified materials at the designated level in accordance with the provisions of this Order.
3.5 Manner of Designation — Depositions
During depositions conducted in this Action, a party or deponent may designate testimony as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" by stating the designation on the record at the time such testimony is given. When a designation is made on the record, the court reporter shall note the designation in the transcript.
In addition to designations made on the record, the parties shall have fifteen (15) calendar days after receipt of the final deposition transcript to make additional written designations specifying the pages and lines of testimony to be designated and the applicable confidentiality tier. Such written designations shall be served on all parties simultaneously. Pending the expiration of the fifteen-day designation period, the entirety of each deposition transcript shall be treated as "ATTORNEYS' EYES ONLY" and shall be handled in accordance with the provisions of this Order applicable to Attorneys' Eyes Only Information.
As of the date of this Order, depositions in this Action that have been noticed or are anticipated include the depositions of Rajiv Anand (noticed for May 15, 2023), Serena Mallick, and Derek Yun. The provisions of this Section 3.5 shall apply to all depositions conducted in this Action, regardless of whether they are listed in this paragraph.
3.6 Manner of Designation — Interrogatory Responses and Other Written discovery
Interrogatory responses, responses to requests for admission, and other written discovery responses may be designated by marking the applicable pages with the confidentiality tier. This includes, without limitation, responses to Plaintiff's First Set of Special Interrogatories to Rajiv Anand (served March 20, 2023) and Plaintiff's First Set of Special Interrogatories to NovaSpark Technologies Inc. (served March 20, 2023), as well as any future interrogatories, requests for admission, or other written discovery propounded by any party. The designation shall appear on each page containing designated information, and the cover page or first page of the response shall indicate that the response contains material subject to this Protective Order.
SECTION 4: CHALLENGING DESIGNATIONS
4.1 Good-Faith Meet and Confer
A Receiving Party that believes a confidentiality designation is improper, overbroad, or not justified under the standards set forth in Section 3 of this Order shall first notify the Designating Party in writing of the challenge. The written notice shall identify with specificity the materials at issue (by Bates number, page range, transcript citation, or other unique identifier) and shall set forth the basis for the challenge with reasonable particularity.
Upon receipt of such notice, the parties shall meet and confer in good faith within ten (10) business days to attempt to resolve the dispute without Court intervention. The meet-and-confer process may be conducted in person, by telephone, or by videoconference, as the parties may agree. The parties shall make genuine efforts to narrow any disagreements and, where appropriate, to agree upon re-designation of materials to a lower tier or the removal of designations entirely.
4.2 Motion to the Court
If, after a good-faith meet and confer, the dispute regarding a confidentiality designation is not resolved, the challenging party may file a motion with this Court requesting that the Court modify, downgrade, or remove the challenged designation. The motion shall be accompanied by a declaration establishing that the parties have met and conferred in good faith and have been unable to resolve the dispute.
The burden of establishing that a confidentiality designation is proper and justified under the standards of this Order shall rest on the Designating Party. The Designating Party must demonstrate, by a preponderance of the evidence, that the designated material warrants the level of protection assigned to it.
Pending resolution of any challenge — whether by agreement of the parties or by order of the Court — the challenged material shall continue to be treated at its current designated level. No party shall use the pendency of a designation challenge as a basis for disregarding the protections afforded by this Order.
SECTION 5: PERSONS AUTHORIZED TO ACCESS CONFIDENTIAL AND ATTORNEYS' EYES ONLY INFORMATION
5.1 "CONFIDENTIAL" Information — Qualified Persons
Discovery Material designated "CONFIDENTIAL" may be disclosed only to the following categories of Qualified Persons:
(a) Counsel of Record for the parties, and their partners, associates, paralegals, litigation support specialists, and administrative staff who are actively working on matters related to this Action;
(b) The Court, including court staff, law clerks, and court reporters retained in connection with proceedings in this Action;
(c) The Neutral Forensic Examiner, Brindoval Digital Forensics LLC, including Dr. Irene Chow (Managing Director and Lead Forensic Examiner), Kevin Barr (Senior Forensic Analyst), and such other staff of Brindoval as are directly working on assignments in this Action;
(d) Technical Consultants and experts retained by any party for purposes of this Action, including Meridian Cybersecurity Advisors Inc. (Naveen Kapoor, Senior Consultant), and any other Technical Consultants subsequently retained, provided that each such individual executes the Acknowledgment and Agreement to Be Bound by Protective Order attached hereto as Exhibit A before receiving any Confidential Information;
(e) In-house party representatives, limited to no more than two (2) individuals per party who have direct responsibility for directing and overseeing the litigation on behalf of their respective organizations, provided that each such individual executes the Acknowledgment and Agreement attached as Exhibit A. For Plaintiff Lumos Analytics Inc., the designated in-house representatives shall be Thomas Brightwell (General Counsel) and Priya Chandrasekaran (Chief Executive Officer), or their respective designees identified in writing to Defendants' counsel. For Defendant NovaSpark Technologies Inc., the designated in-house representative shall be Rajiv Anand (Chief Executive Officer) or his designee identified in writing to Plaintiff's counsel, subject to the limitations set forth in Section 5.3 below;
(f) The mediator, the Honorable Eleanor Voss (Ret.), of Tidewater Mediation Group, located at 160 West Santa Clara Street, Suite 1050, San Jose, California 95113, in connection with any court-ordered or agreed-upon mediation proceedings in this Action; and
(g) Any witness during a deposition or at trial, solely to the extent necessary for examination of the witness regarding the designated material, subject to the provisions of Section 7 of this Order governing use of designated materials at depositions and hearings.
5.2 "ATTORNEYS' EYES ONLY" Information — Qualified Persons
Discovery Material designated "ATTORNEYS' EYES ONLY" may be disclosed only to the following, more limited categories of Qualified Persons:
(a) Counsel of Record for the parties, and their partners, associates, paralegals, litigation support specialists, and administrative staff who are actively working on matters related to this Action;
(b) The Court, including court staff, law clerks, and court reporters retained in connection with proceedings in this Action;
(c) The Neutral Forensic Examiner, Brindoval Digital Forensics LLC, including Dr. Irene Chow, Kevin Barr, and such other staff of Brindoval as are directly working on assignments in this Action;
(d) Technical Consultants and experts retained by any party for purposes of this Action who have executed the Acknowledgment and Agreement attached as Exhibit A, including Meridian Cybersecurity Advisors Inc. (Naveen Kapoor, Senior Consultant);
(e) The mediator, the Honorable Eleanor Voss (Ret.), in connection with mediation proceedings in this Action; and
(f) Any witness during a deposition or at trial, solely to the extent necessary for examination of the witness regarding the designated material, subject to the provisions of Section 7 of this Order.
For the avoidance of doubt, "ATTORNEYS' EYES ONLY" material may NOT be disclosed to any party representative, officer, director, employee, or agent of any party, including without limitation Thomas Brightwell (General Counsel, Lumos Analytics Inc.), Priya Chandrasekaran (CEO, Lumos Analytics Inc.), Rachel Fong (any other Lumos representative), Rajiv Anand (CEO, NovaSpark Technologies Inc.), Serena Mallick, or Derek Yun, except as specifically provided in Section 5.3 below. The exclusion of party representatives from access to Attorneys' Eyes Only Information is a fundamental term of this Order and reflects the parties' agreement that the highest tier of protection is necessary to prevent competitive harm arising from the disclosure of trade secrets and extremely sensitive proprietary information.
5.3 Special Provisions for Individual Defendants and Party Representatives
The parties recognize that Defendants Rajiv Anand, Serena Mallick, and Derek Yun occupy a unique position in this Action: they are individual parties and named defendants who are entitled to participate in their own defense, but they are also former employees of Lumos Analytics Inc. who are alleged to have misappropriated Lumos's trade secrets and proprietary information. This dual status necessitates special provisions to balance the Individual Defendants' right to prepare a defense with the need to protect Lumos's trade secrets from further dissemination.
Accordingly, access to "ATTORNEYS' EYES ONLY" material by any of the Individual Defendants — Rajiv Anand, Serena Mallick, and Derek Yun — shall be limited as follows:
(a) Any Individual Defendant may review Attorneys' Eyes Only material only in the physical presence of their Counsel of Record at the offices of Whitfield, Raines & Gerber LLP, 235 Montgomery Street, Suite 1800, San Francisco, California 94104;
(b) No Individual Defendant shall be permitted to copy, photograph, transcribe, download, or remove any Attorneys' Eyes Only material from the offices of Whitfield, Raines & Gerber LLP;
(c) No Individual Defendant shall be permitted to make notes that reproduce or substantially reflect the specific content of Attorneys' Eyes Only material, although general discussions of legal strategy with Counsel of Record are not restricted by this provision; and
(d) The foregoing restrictions may be modified only with the prior written consent of the Designating Party or by order of this Court upon a showing of good cause.
Similarly, to the extent NovaSpark Technologies Inc.'s "ATTORNEYS' EYES ONLY" materials contain NovaSpark source code, product architecture documents, model specifications, or other proprietary technical materials, Lumos party representatives — including Priya Chandrasekaran (CEO), Thomas Brightwell (General Counsel), Rachel Fong, and any other Lumos officer, director, or employee — shall not have access to such materials. NovaSpark's Attorneys' Eyes Only materials shall be accessible only to Lumos's Counsel of Record (Calderwood & Harkness LLP) and Technical Consultants who have executed the Acknowledgment and Agreement attached as Exhibit A. This reciprocal restriction reflects the parties' mutual interest in ensuring that neither side's most sensitive proprietary technology is exposed to the other side's business personnel.
SECTION 6: HANDLING AND STORAGE OF CONFIDENTIAL INFORMATION
6.1 General Obligations
All Confidential Information and Attorneys' Eyes Only Information shall be used solely for purposes of this Action — including preparation of pleadings, motions, discovery, depositions, mediation, trial, and appeals — and shall not be used for any business, commercial, competitive, personal, regulatory, or other purpose whatsoever. Each Receiving Party shall take reasonable steps to prevent unauthorized access to or disclosure of designated materials, including storing such materials in secure, access-controlled locations, whether physical or electronic, and limiting dissemination to Qualified Persons as defined in Section 5.
Each Qualified Person who receives designated materials is personally responsible for maintaining the confidentiality of such materials and shall not disclose them to any person who is not a Qualified Person authorized to receive materials at the applicable tier. Any Qualified Person who becomes aware of an actual or suspected unauthorized disclosure of designated materials shall promptly notify the Counsel of Record for the Designating Party and take all reasonable steps to mitigate the effects of such disclosure.
6.2 Electronic Storage
Electronic copies of designated discovery Material shall be stored on access-controlled systems that employ industry-standard security measures. At a minimum, the following safeguards shall be maintained:
(a) All electronic copies of designated discovery Material shall be encrypted at rest using AES-256 encryption or an equivalent standard;
(b) Access to electronic repositories containing designated materials shall be restricted to Qualified Persons through user authentication controls, including unique usernames and passwords;
(c) Cloud storage services used for designated materials must employ industry-standard encryption, both in transit and at rest, and must provide access controls sufficient to limit access to Qualified Persons; and
(d) Counsel of Record shall maintain reasonable records of which Qualified Persons have been granted access to electronic repositories containing designated materials.
6.3 Prohibition on Copying
No Qualified Person shall make additional copies of Attorneys' Eyes Only material beyond those reasonably necessary for the conduct of this litigation, including copies made for use in depositions, hearings, motions, trial preparation, and expert analysis. Each copy of Attorneys' Eyes Only material shall bear the original "ATTORNEYS' EYES ONLY" designation markings and shall be treated in accordance with the provisions of this Order applicable to such materials.
Copies of Confidential material shall likewise be limited to those reasonably necessary for the conduct of this litigation and shall bear the original "CONFIDENTIAL" designation markings. No copy of any designated material shall be made for any purpose other than the prosecution or defense of this Action.
6.4 No Use Beyond This Action
Designated materials — and information learned or derived from designated materials, including knowledge, insights, conclusions, analyses, and summaries based on such materials — shall not be used in connection with any other litigation, proceeding, arbitration, regulatory matter, governmental investigation, patent prosecution, patent application, business activity, commercial decision, or for any other purpose whatsoever, without the prior written consent of the Designating Party or an order of this Court. This prohibition extends to all Qualified Persons, including Counsel of Record, Technical Consultants, and any other person who has had access to designated materials under this Order.
Nothing in this Section 6.4 shall prevent Counsel of Record from using general knowledge and legal skills acquired during the course of this Action, provided that such use does not involve the disclosure or exploitation of specific Confidential Information or Attorneys' Eyes Only Information.
SECTION 7: USE AT DEPOSITIONS AND HEARINGS
7.1 Depositions. If Confidential Information or Attorneys' Eyes Only Information is to be used or discussed during a deposition in this Action, the following procedures shall apply:
(a) Exclusion of Unauthorized Persons. The Producing Party or Designating Party may request that all persons not entitled to access the designated material under Section 5 of this Order be excluded from the deposition room (whether physical or virtual) during the portion of the deposition at which such material is being used or discussed. The party taking the deposition shall comply with such request. If a dispute arises regarding the exclusion of any person, the parties shall contact the Court for guidance, and the designated material shall not be disclosed to the disputed person pending resolution.
(b) Handling of Designated Exhibits. Deposition exhibits that contain or reflect Confidential or Attorneys' Eyes Only Information shall be marked with the applicable designation and handled in accordance with this Order. At the conclusion of the deposition, all copies of designated exhibits provided to the witness or to any person not authorized to retain them shall be collected and returned to the party that introduced the exhibit.
(c) Transcript Handling. Portions of deposition transcripts containing testimony designated as Confidential or Attorneys' Eyes Only shall be maintained and handled in accordance with this Order. Deposition transcripts shall be bound separately from any undesignated portions, with a cover page prominently stating either "CONTAINS CONFIDENTIAL INFORMATION — SUBJECT TO PROTECTIVE ORDER" or "CONTAINS ATTORNEYS' EYES ONLY INFORMATION — SUBJECT TO PROTECTIVE ORDER," as applicable to the highest designation level of any material contained in the transcript.
(d) Videotaped Depositions. To the extent any deposition is recorded by videography, the video recording of portions containing designated testimony shall be treated at the same designation level as the corresponding transcript testimony and shall be subject to the same access restrictions.
7.2 Court Filings
If any party files with the Court any document, brief, memorandum, declaration, exhibit, or other filing that contains, quotes, references, or reflects Confidential Information or Attorneys' Eyes Only Information, the filing party shall comply with the following procedures:
(a) The filing party shall file a redacted version in the public file, with all Confidential and Attorneys' Eyes Only Information redacted in a manner that clearly indicates the existence of redactions;
(b) The filing party shall lodge the unredacted version under seal with the Court pursuant to California Rules of Court, rule 2.550 et seq., accompanied by a declaration or motion establishing that the information contained therein qualifies for sealing under the applicable legal standards; and
(c) Any motion to seal must comply with the substantive and procedural requirements of California Rules of Court, rules 2.550 and 2.551, including the requirement that the Court make express findings supporting the sealing of records. The parties acknowledge that the Court retains discretion to determine whether sealing is warranted and that a designation under this Order does not automatically entitle a party to the sealing of court records.
The parties shall cooperate in good faith to minimize the amount of material that must be filed under seal, including by preparing redacted versions that disclose as much non-confidential information as practicable while protecting legitimately designated material.
7.3 Trial Use
This Protective Order shall remain in full force and effect through and after trial. In advance of trial, any party may seek further protective measures from the Court regarding the use and display of designated materials during trial proceedings, including the closure of the courtroom during testimony involving Attorneys' Eyes Only Information, the use of sealed exhibits, and other measures consistent with the public's right of access to judicial proceedings and the parties' interests in protecting their confidential information. The parties agree to meet and confer regarding proposed trial protocols for the handling of designated materials no later than thirty (30) days before the commencement of trial.
SECTION 8: NON-PARTY DISCOVERY
8.1 If any discovery Material designated under this Protective Order is subpoenaed or otherwise requested from a non-party, including but not limited to Blackpine Capital Partners LP, Ridgeline Ventures, Northstar Growth Equity, and any other entity or individual from whom discovery may be sought, the party issuing the subpoena or request shall provide the non-party with a copy of this Protective Order promptly upon service of the subpoena or request. The non-party shall be bound by the terms of this Order with respect to all designated material produced by the non-party in response to such subpoena or request, and the non-party shall handle, store, and refrain from further disclosing such material in accordance with the provisions of this Order.
8.2 Any non-party producing documents or other materials in this Action may designate its own materials as "CONFIDENTIAL" or "ATTORNEYS' EYES ONLY" in accordance with the procedures and standards set forth in Section 3 of this Order. Such designations by non-parties shall be entitled to the same protections as designations made by the parties, and any challenge to a non-party's designation shall be resolved in accordance with the procedures set forth in Section 4.
8.3 If a non-party objects to the production of materials on the grounds that such materials contain confidential or proprietary information, the requesting party shall promptly notify the non-party of this Protective Order and the protections it affords. Nothing in this Order shall be construed to limit a non-party's right to object to a subpoena on any available grounds.
SECTION 9: NEUTRAL FORENSIC EXAMINER — SPECIAL PROVISIONS
9.1 Brindoval Digital Forensics LLC — Default Designation
All forensic images, forensic reports, forensic analyses, and other work product of the Neutral Forensic Examiner (Brindoval Digital Forensics LLC) created in connection with this Action shall be deemed "ATTORNEYS' EYES ONLY" by default, without the need for any party to make a specific designation, unless the parties jointly agree in writing to a different designation for specific materials. This default designation reflects the parties' recognition that forensic materials are inherently likely to contain or reference trade secrets, source code, proprietary data, and other extremely sensitive information warranting the highest tier of protection.
Without limiting the generality of the foregoing, materials subject to this default "ATTORNEYS' EYES ONLY" designation include:
(a) Forensic images of NovaSpark Technologies Inc. servers, including all file systems, databases, and application data contained therein;
(b) Forensic images of personal devices of the Individual Defendants, specifically three (3) laptop computers, two (2) mobile phones, and two (2) external storage drives, including the Glenrock Industries USB external drive with serial number WD-4837291, which is identified in the Verified Complaint as containing copies of Lumos proprietary files;
(c) Forensic images and data collected from cloud storage accounts examined during the imaging period of March 22 through April 14, 2023;
(d) The Preliminary Forensic Report dated May 1, 2023, prepared by Dr. Irene Chow and Kevin Barr of Brindoval Digital Forensics LLC;
(e) Any subsequent forensic reports, supplemental analyses, or Final Forensic Remediation Certification issued by Brindoval Digital Forensics LLC; and
(f) All chain-of-custody documentation, forensic tool logs, hash verification records, and other technical records generated by Brindoval in connection with its examination.
9.2 Access to Forensic Materials
Access to forensic images and raw data collected by Brindoval Digital Forensics LLC shall be limited to Counsel of Record for the parties and their designated Technical Consultants, including Naveen Kapoor of Meridian Cybersecurity Advisors Inc. (retained by Plaintiff), and any Technical Consultant subsequently retained by Defendants who executes the Acknowledgment and Agreement attached as Exhibit A.
Neither party's officers, directors, employees, or agents (other than Counsel of Record as defined in Section 1.8) shall have direct access to the other party's forensic images or raw data. For the avoidance of doubt, no officer, director, or employee of Lumos Analytics Inc. shall have direct access to forensic images of NovaSpark's servers or the Individual Defendants' personal devices, and no officer, director, or employee of NovaSpark Technologies Inc. (including Rajiv Anand) shall have direct access to forensic images containing Lumos proprietary data, except to the limited extent permitted under Section 5.3 for in-person review at counsel's offices.
9.3 Chain of Custody
Brindoval Digital Forensics LLC shall maintain a comprehensive written chain of custody for all forensic images, physical devices, and digital media in its possession, custody, or control in connection with this Action. The chain-of-custody documentation shall record, at a minimum, the identity of each item, the date and time of each transfer or access event, the identity of the person making or receiving the transfer, and the purpose of the transfer or access. Brindoval shall make such chain-of-custody records available to the parties and the Court upon reasonable request, and such records shall themselves be treated as "ATTORNEYS' EYES ONLY" material unless the parties agree otherwise.
SECTION 10: ACKNOWLEDGMENT AND AGREEMENT TO BE BOUND
10.1 Before any Technical Consultant, expert, or non-attorney Qualified Person (including, without limitation, in-house party representatives designated under Section 5.1(e)) receives any Confidential Information or Attorneys' Eyes Only Information, such person must execute the Acknowledgment and Agreement to Be Bound by Protective Order attached hereto as Exhibit A and incorporated herein by reference.
10.2 The Acknowledgment and Agreement shall include: (a) the person's full legal name; (b) the person's employer or organizational affiliation; (c) the person's business address; (d) a statement that the person has read and understands the Protective Order in its entirety; and (e) a commitment by the person to be bound by the terms of the Protective Order as if they were a signatory thereto, including the obligation to use designated materials solely for purposes of this Action, to maintain all designated materials in confidence and in secure storage, and to return or destroy all designated materials at the conclusion of the Action.
10.3 The executed Acknowledgment and Agreement shall be retained by the Counsel of Record for the party that disclosed the designated materials to the signing individual. Copies of executed Acknowledgment and Agreement forms shall be made available to opposing counsel upon written request within five (5) business days.
10.4 No Confidential Information or Attorneys' Eyes Only Information shall be disclosed to any person required to execute an Acknowledgment and Agreement until the executed form has been received by the disclosing party's Counsel of Record.
SECTION 11: INADVERTENT PRODUCTION
11.1 Clawback of Undesignated Materials
The inadvertent production of a document, file, or other discovery Material without a confidentiality designation — or with a designation at a lower tier than intended — shall not constitute a waiver of the Producing Party's right to designate or re-designate such material at the appropriate confidentiality tier under this Order.
Upon written notice from the Producing Party identifying the material and the intended designation, the Receiving Party shall promptly:
(a) treat the identified material at the designated confidentiality level in accordance with the provisions of this Order;
(b) return or destroy any copies of the material that are not in compliance with the newly applied designation (e.g., copies that were shared with persons who are not Qualified Persons for the designated tier); and
(c) make reasonable efforts to retrieve any copies of the material that were previously shared with Qualified Persons who are not authorized to access the material at the newly designated tier, and to inform such persons that the material is now subject to a higher level of protection.
The Receiving Party shall not use the contents of any inadvertently undesignated or under-designated material for any purpose after receiving notice of the designation, except in accordance with the terms of this Order applicable to the designated tier.
11.2 Inadvertent Production of Privileged Material
The inadvertent production of any document, file, or other material that is protected by the attorney-client privilege, the work-product doctrine, or any other applicable privilege or immunity shall not constitute a waiver of any such privilege or protection, regardless of the circumstances of the production. This provision is intended to be enforceable as a non-waiver agreement pursuant to California Evidence Code Section 912(a) and, to the extent applicable to any federal proceedings or federal law claims, Federal Rule of Evidence 502(d).
Upon written notice from the Producing Party that privileged material has been inadvertently produced, the Receiving Party shall promptly:
(a) return all copies of the inadvertently produced privileged material to the Producing Party, or, at the Producing Party's election, sequester or destroy all such copies;
(b) refrain from reading, reviewing, or further disseminating the contents of the inadvertently produced privileged material to the extent not already reviewed;
(c) not use the contents of the inadvertently produced privileged material for any purpose, including as the basis for discovery requests, deposition questions, motion arguments, or trial evidence; and
(d) promptly notify any Qualified Person to whom the privileged material was previously disclosed that the material has been clawed back and must be returned, sequestered, or destroyed.
If the Receiving Party disputes the claim of privilege, the Receiving Party may raise the issue with the Court, but shall not use or disclose the contents of the disputed material pending the Court's ruling.
SECTION 12: MODIFICATION OF ORDER
12.1 This Protective Order may be modified at any time by written stipulation of the parties, approved by the Court, or by order of the Court upon motion by any party or affected non-party and a showing of good cause for the requested modification.
12.2 Any party or non-party affected by this Order may apply to the Court for modification of any provision of this Order. Such application shall be made by noticed motion and shall set forth the specific modification requested and the good cause supporting the request.
12.3 Unless otherwise ordered by the Court, any modification of this Order shall apply prospectively only and shall not affect the designation or treatment of materials produced prior to the effective date of the modification, except to the extent expressly stated in the modification.
SECTION 13: DURATION AND RETURN OR DESTRUCTION OF MATERIALS
13.1 Duration. This Protective Order shall remain in full force and effect during the pendency of this Action and for a period of two (2) years following the final resolution of this Action, including the exhaustion or expiration of all rights of appeal. "Final resolution" shall mean the entry of a final judgment from which no further appeal is taken or may be taken, the entry of a final order of dismissal, or the execution of a settlement agreement resolving all claims in this Action, whichever occurs last.
Notwithstanding the foregoing, the obligations of confidentiality imposed by this Order with respect to trade secrets and Attorneys' Eyes Only Information shall survive the expiration of the two-year period to the extent that the underlying information continues to qualify as a trade secret under applicable law. The Court retains jurisdiction to enforce the provisions of this Order after the conclusion of this Action.
13.2 Return or Destruction
Within sixty (60) days after the final resolution of this Action (as defined in Section 13.1), each Receiving Party shall, at the election of the Producing Party:
(a) Return all designated materials (including all copies, whether in paper or electronic form) to the Producing Party; or
(b) Destroy all designated materials (including all copies, whether in paper or electronic form) and provide the Producing Party with a written certification of destruction, signed by Counsel of Record, identifying the materials destroyed and confirming that all copies have been destroyed.
If the Producing Party does not make an election within thirty (30) days after written request from the Receiving Party, the Receiving Party may destroy the materials and provide a written certification of destruction.
Notwithstanding the foregoing, Counsel of Record for each party may retain one (1) archival copy of designated materials, maintained in secure, access-controlled storage, solely for the purpose of establishing compliance with this Protective Order and satisfying any professional, ethical, or regulatory obligations. Such archival copy shall remain subject to all terms of this Order for the duration specified in Section 13.1 and, with respect to trade secrets, indefinitely.
13.3 Forensic Materials
The return or destruction of forensic materials held by Brindoval Digital Forensics LLC — including forensic images, physical devices, digital media, chain-of-custody records, and related work product — shall be governed by the Stipulation and Order Appointing Neutral Forensic Examiner dated March 8, 2023, and any further orders of this Court. To the extent the Stipulation and Order Appointing Neutral Forensic Examiner does not address a particular category of forensic material, such material shall be returned or destroyed in accordance with Section 13.2 of this Order, subject to the Court's further direction.
SECTION 14: REMEDIES
14.1 A violation of any provision of this Protective Order may result in sanctions, contempt proceedings, monetary penalties, and any other remedy available to this Court under applicable law, including the Court's inherent authority to enforce its orders.
14.2 Nothing in this Order limits any party's right to seek injunctive relief, damages, or other remedies for the unauthorized disclosure or misuse of Confidential Information or Attorneys' Eyes Only Information, including claims arising under the California Uniform Trade Secrets Act (California Civil Code Sections 3426 through 3426.11), claims for breach of the Preliminary Injunction Order issued February 17, 2023, claims for contempt of court, or any other cause of action available under applicable law.
14.3 The parties acknowledge that a breach of this Order may cause irreparable harm for which monetary damages would be an inadequate remedy, and that the Designating Party shall be entitled to seek immediate injunctive relief to prevent or restrain any actual or threatened violation of this Order, without the necessity of posting a bond or other security.