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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF CALIFORNIA
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`CASE NO. 5:20-cv-09341-EJD-NMC
`[PROPOSED] PROTECTIVE ORDER
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`APPLIED MATERIALS, INC.,
`Plaintiff,
`
`vs.
`DEMARAY LLC,
`Defendant.
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 2 of 44
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`To expedite the flow of discovery material, to facilitate the prompt resolution of disputes
`over confidentiality of discovery materials, to adequately protect information the parties are entitled
`to keep confidential, to ensure that only materials the parties are entitled to keep confidential are
`subject to such treatment, and to ensure that the parties are permitted reasonably necessary uses of
`such materials in preparation for and in the conduct of trial, pursuant to Fed. R. Civ. P. 26(c), it is
`hereby ORDERED THAT:
`A.
`Definitions
`1.
`“Party”: any party to this action, including all of its officers, directors, employees,
`consultants, retained experts, and outside counsel (and their support staff).
`2.
`“Material”: all information, testimony, documents, and things produced, served, or
`otherwise provided in this action by the Parties or by non-parties.
`3.
`“CONFIDENTIAL Material”: information, documents, and things the Designating
`Party believes in good faith is not generally known to others, and which the Designating Party
`(i) would not normally reveal to third parties except in confidence or has undertaken with others to
`maintain in confidence, or (ii) believes in good faith is protected by a right to privacy under federal
`or state law or any other applicable privilege or right related to confidentiality or privacy. This
`designation includes all Material referring or relating to the foregoing, including but not limited to
`copies, summaries, and abstracts of the foregoing.
`4.
`“OUTSIDE COUNSEL EYES ONLY Material”: information, documents, and
`things the Designating Party believes in good faith is not generally known to others and has
`significant competitive value such that unrestricted disclosure to others would create a substantial
`risk of serious injury, and which the Designating Party (i) would not normally reveal to third parties
`except in confidence or has undertaken with others to maintain in confidence, or (ii) believes in
`good faith is significantly sensitive and protected by a right to privacy under federal or state law or
`any other applicable privilege or right related to confidentiality or privacy. The designation is
`reserved for information that constitutes proprietary financial or technical or commercially
`sensitive competitive information that the Designating Party maintains as highly confidential in its
`business, including information obtained from a non-party pursuant to a Nondisclosure Agreement
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 3 of 44
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`(“NDA”), information relating to future products, strategic plans, non-public financial data,
`documents that would reveal trade secrets, licensing documents or licensing communications, and
`settlement agreements or settlement communications, the disclosure of which is likely to cause
`harm to the competitive position of the Designating Party. This designation includes all Material
`referring or relating to the foregoing, including but not limited to copies, summaries, and abstracts
`of the foregoing.
`5.
`“OUTSIDE COUNSEL EYES ONLY – SOURCE CODE”: C, C++, assembler,
`digital signal processing (DSP) programming language, firmware source code, register transfer
`language (RTL), hardware description language (HDL), circuit simulation files, non-programing
`files that are part of the source code development suite (such as README, Release Note, log and
`input files), [Applied’s Proposal: design files (schematics, netlists, and layout files), or
`schematics (i.e., representations of any silicon mask or circuit design, diagram, or blueprint
`containing specific gate-level circuit design representations)], microcode, and/or similarly
`sensitive computer code (collectively, “Source Code”) that the Designating Party believes in good
`faith is not generally known to others and has significant competitive value such that unrestricted
`disclosure to others would create a substantial risk of serious injury, and which the Designating
`Party (i) would not normally reveal to third parties except in confidence or has undertaken with
`others to maintain in confidence, or (ii) believes in good faith is significantly sensitive and protected
`by a right to privacy under federal or state law or any other applicable privilege or right related to
`confidentiality or privacy. This designation includes all Materials referring or relating to the
`foregoing, including but not limited to copies, summaries, and abstracts of the foregoing. If a non-
`Source Code document specifically refers or relates to Source Code (e.g., a copy, summary, or
`abstract is included therein), upon request from the Receiving Party, the Producing Party will meet
`and confer in good faith with the Receiving Party regarding whether the Producing Party will redact
`the relevant portion of the document and make the redacted document available as non-Source
`Code material subject to appropriate alternative designation. If the Parties are unable to agree
`within 5 business days of the meet and confer, the Parties will jointly seek the Court’s assistance
`in resolving the dispute. Any document designated as “OUTSIDE COUNSEL EYES ONLY –
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 4 of 44
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`SOURCE CODE” information is automatically designated as SUBJECT TO PROSECUTION
`BAR in Section H.
`6.
`“OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE”: especially sensitive
`semiconductor fabrication processes documentation (process flow specifications, operating
`specifications, process sequence documents, die layout files, and process recipes) (collectively
`“Process Recipes”) which the Designating Party believes in good faith is not generally known to
`others, which has significant competitive value such that unrestricted disclosure to others would
`create a substantial risk of serious injury, and which the Designating Party, in the ordinary course
`of business, takes precautions to protect, and, further, which the Designating Party (i) would not
`normally reveal to third parties except in confidence or has undertaken with others to maintain in
`confidence, or (ii) believes in good faith is significantly sensitive and protected by a right to privacy
`under federal or state law or any other applicable privilege or right related to confidentiality or
`privacy. This designation includes all Materials referring or relating to the foregoing, including but
`not limited to copies, summaries, and abstracts of the foregoing. If a non-Process Recipe document
`specifically refers or relates to Process Recipe Material (e.g., a copy, summary, or abstract is
`included therein), upon request from the Receiving Party, the Producing Party will meet and confer
`in good faith with the Receiving Party regarding whether the Producing Party will redact the
`relevant portion of the document and make the redacted document available as non-Process Recipe
`material subject to appropriate alternative designation. If the Parties are unable to agree within 5
`business days of the meet and confer, the Parties will jointly seek the Court’s assistance in resolving
`the dispute. Applied states that it treats Process Recipe Material in a manner that is at least as
`protective as Source Code. Any document designated as “OUTSIDE COUNSEL EYES ONLY –
`PROCESS RECIPE” information is automatically designated as SUBJECT TO PROSECUTION
`BAR in Section H.
`7.
`“Producing Party”: a Party or non-party that produces Material in this action.
`8.
`“Receiving Party”: a Party that receives Material from a Producing Party.
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 5 of 44
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`9.
`is designated “CONFIDENTIAL”,
`that
`“Designated Material”: Material
`“OUTSIDE COUNSEL EYES ONLY”, “OUTSIDE COUNSEL EYES ONLY – SOURCE
`CODE” or “OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE” under this Order.
`10.
`“Designating Party”: a Party or non-party
`that designates Material as
`“CONFIDENTIAL”, “OUTSIDE COUNSEL EYES ONLY”, “OUTSIDE COUNSEL EYES
`ONLY – SOURCE CODE” or “OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE”.
`11.
`“Counsel of Record”: (i) outside counsel who appears on the pleadings as counsel
`for a Party; (ii) partners, associates, and employees of such outside counsel to whom it is reasonably
`necessary to disclose the information for this litigation, including supporting personnel employed
`by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks, and shorthand
`reporters; (iii) independent legal translators retained to translate in connection with this action, or
`independent shorthand reporters retained to record and transcribe testimony in connection with this
`action. “Counsel of Record” does not include any person who is an employee, director, or officer
`of a Party or a Party’s affiliates even if that person appears on the pleadings as counsel for a Party.
`12.
`“Litigation Manager”: an employee or consultant in a Party’s legal department or
`intellectual property division whose responsibilities include overseeing this litigation, who is not a
`competitive decisionmaker regarding equipment for physical vapor deposition of thin films in
`semiconductor integrated circuit products and who is not a Board member or Board-appointed
`officer of that Party. For the avoidance of doubt, an individual is not a competitive decisionmaker
`solely by virtue of participating in the negotiation of settlement agreements. Each Party may have
`a maximum of two Litigation Managers. Either party may substitute its Litigation Managers with
`reasonable notice to the other party.
`13.
`“Outside Consultant”: a person with specialized knowledge or experience in a
`matter pertinent to the action who has been retained by a Party or its Counsel of Record to serve as
`an expert witness or as a consultant in this action and who is not a current employee, officer, or
`director of a Party or of a competitor of a Party and who, at the time of retention, is not anticipated
`to become an employee, officer, or director of a Party or of a competitor of a Party.
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 6 of 44
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`14.
`“Professional Vendors”: persons or entities that provide litigation support services
`(e.g., photocopying, organizing, storing, or retrieval of data in any form or medium, videotaping,
`translating, designing and preparing exhibits, graphics, or demonstrations, etc.) and their employees
`and subcontractors. This definition includes a professional jury or trial consultant retained in
`connection with this litigation and mock jurors retained by such a consultant to assist them in their
`work. Professional Vendors do not include consultants who fall within the definition of Outside
`Consultant.
`B.
`Scope
`15.
`The protections conferred by this Order cover not only Designated Material (as
`defined above), but also any information copied or extracted therefrom, as well as all copies,
`excerpts, summaries, or compilations thereof. Nothing herein changes in any way the discovery
`provisions of the Federal Rules of Civil Procedure or the Court’s deadlines. Identification of any
`individual pursuant to this Protective Order does not make that individual available for deposition
`or any other form of discovery outside of the restrictions and procedures of the Federal Rules of
`Civil Procedure, the rules of the United States District Court for the Western District of Texas, and
`the Court’s orders applicable to this case.
`C.
`Access to Designated Material
`CONFIDENTIAL Material: Unless otherwise ordered by the Court or permitted
`16.
`in writing by the Designating Party, a Receiving Party may disclose any information, document, or
`thing designated “CONFIDENTIAL” only to:
`(a)
`persons who appear on the face of Designated Material as an author,
`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
`Producing Party with an opportunity to object prior to such disclosure;
`(b)
`Counsel of Record;
`(c)
`Litigation Managers to whom disclosure is reasonably necessary for this
`litigation and who have signed the “Litigation Manager Acknowledgment and Agreement to Be
`Bound by Protective Order” attached as Exhibit C;
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 7 of 44
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`(d)
`Outside Consultants of the Receiving Party to whom disclosure is reasonably
`necessary for this litigation and who have signed the “Acknowledgment and Agreement to Be
`Bound By Protective Order” attached hereto as Exhibit A and the “Certification Of Outside
`Consultant” attached hereto as Exhibit B. Disclosure may be made to such Outside Consultants of
`the Receiving Party only pursuant to and after completion of the procedures set out in Section D
`below;
`
`(e)
`witnesses of the Producing Party at deposition and/or trial, provided that
`such witnesses may not retain copies of Designated Material unless permitted by other provisions
`of this Order;
`
`(f)
`this Court in the above-captioned civil action, and the court in any appeal
`from any of the foregoing actions, in each case including such court’s personnel;
`(g)
`any designated arbitrator or mediator who is assigned to hear this matter, and
`his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By Protective
`Order” attached hereto as Exhibit A and the “Certification Of Outside Consultant” attached hereto
`as Exhibit B;
`
`(h)
`court reporters; and
`(i)
`Professional Vendors to which disclosure is reasonably necessary for this
`litigation and a representative of which has signed the “Acknowledgment and Agreement To Be
`Bound By Protective Order” attached hereto as Exhibit A.
`17. OUTSIDE COUNSEL EYES ONLY Material: Unless otherwise ordered by the
`Court or permitted in writing by the Designating Party, a Receiving Party may disclose any
`information, documents, or things designated OUTSIDE COUNSEL EYES ONLY Material only
`to the following in addition to those identified in Paragraphs 45-46 below regarding use of
`Designated Material at depositions:
`(a)
`persons who appear on the face of Designated Material as an author,
`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
`Producing Party with an opportunity to object prior to such disclosure;
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 8 of 44
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`(b)
`Counsel of Record;
`(c)
`Outside Consultants of the Receiving Party to whom disclosure is reasonably
`necessary for this litigation and who have signed the “Acknowledgment and Agreement To Be
`Bound By Protective Order” attached hereto as Exhibit A and the “Certification Of Outside
`Consultant” attached hereto as Exhibit B. Disclosure may be made to such Outside Consultants of
`the Receiving Party only pursuant to and after completion of the procedures set out in Section D
`below;
`
`(d)
`this Court in the above-captioned civil action, and the court in any appeal
`from any of the foregoing actions, in each case including such court’s personnel;
`(e)
`any designated arbitrator or mediator who is assigned to hear this matter, and
`his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By Protective
`Order” attached hereto as Exhibit A and the “Certification Of Outside Consultant” attached hereto
`as Exhibit B;
`
`(f)
`court reporters; and
`(g)
`Professional Vendors to which disclosure is reasonably necessary for this
`litigation and a representative of which has signed the “Acknowledgment and Agreement To Be
`Bound By Protective Order” attached hereto as Exhibit A.
`18. OUTSIDE COUNSEL EYES ONLY – SOURCE CODE Material: Unless
`otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
`may disclose any information, documents, or things designated OUTSIDE COUNSEL EYES
`ONLY – SOURCE CODE Material only to the following in addition to those identified in
`Paragraphs 45-46 below regarding use of Designated Material at depositions:
`(a)
`persons who appear on the face of Designated Material as an author,
`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
`Producing Party with an opportunity to object prior to such disclosure;
`(b)
`Counsel of Record;
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 9 of 44
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`(c)
`Outside Consultants of the Receiving Party to whom disclosure is reasonably
`necessary for this litigation and who have signed the “Acknowledgment and Agreement To Be
`Bound By Protective Order” attached hereto as Exhibit A and the “Certification Of Outside
`Consultant” attached hereto as Exhibit B. Disclosure may be made to such Outside Consultants of
`the Receiving Party only pursuant to and after completion of the procedures set out in Section D
`below;
`
`(d)
`this Court in the above-captioned civil action, and the court in any appeal
`from any of the foregoing actions, in each case including such court’s personnel;
`(e)
`any designated arbitrator or mediator who is assigned to hear this matter, and
`his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By Protective
`Order” attached hereto as Exhibit A and the “Certification Of Outside Consultant” attached hereto
`as Exhibit B; and
`(f)
`court reporters.
`19. OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE Material:
`Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a
`Receiving Party may disclose any information, documents, or things designated OUTSIDE
`COUNSEL EYES ONLY – PROCESS RECIPE Material only to the following in addition to those
`identified in Paragraph 45 below regarding use of Designated Material at depositions:
`(a)
`persons who appear on the face of Designated Material as an author,
`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
`Producing Party with an opportunity to object prior to such disclosure;
`(b)
`Counsel of Record;
`(c)
`Outside Consultants of the Receiving Party to whom disclosure is reasonably
`necessary for this litigation and who have signed the “Acknowledgment and Agreement To Be
`Bound By Protective Order” attached hereto as Exhibit A and the “Certification Of Outside Process
`Recipe Consultant” attached hereto as Exhibit D. . Disclosure may be made to such Outside
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 10 of 44
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`Consultants of the Receiving Party only pursuant to and after completion of the procedures set out
`in Section D below;
`(d)
`this Court in the above-captioned civil action, and the court in any appeal
`from any of the foregoing actions, in each case including such court’s personnel;
`(e)
`any designated arbitrator or mediator who is assigned to hear this matter, and
`his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By Protective
`Order” attached hereto as Exhibit A and the “Certification Of Outside Process Recipe Consultant”
`attached hereto as Exhibit D; and
`(f)
`court reporters.
`20.
`Each person to whom Designated Material may be disclosed, and who is required to
`sign the “Acknowledgment and Agreement To Be Bound By Protective Order” attached hereto as
`Exhibit A, or the “Certification Of Outside Consultant” attached hereto as Exhibit B (if applicable)
`or the “Litigation Manager Acknowledgment and Agreement to Be Bound by Protective Order”
`attached hereto as Exhibit C (if applicable) or the “Certification Of Outside Process Recipe
`Consultant” attached hereto as Exhibit D (if applicable), must do so prior to the time such
`Designated Material is disclosed to him or her. Counsel for a Party who makes any disclosure of
`Designated Material must retain each original executed certificate and, upon written request, must
`provide copies to counsel for all other Parties at the termination of this action.
`21.
`At the request of the Designating Party, persons not permitted access to Designated
`Material under the terms of this Protective Order must not be present at depositions while the
`Designating Party’s Designated Material is discussed or otherwise disclosed. Pre-trial and trial
`proceedings must be conducted in a manner, subject to the supervision of the Court, to protect
`Designated Material from disclosure to persons not authorized to have access to such Material.
`D.
`Access By Outside Consultants
`Notice. If a Receiving Party wishes to disclose another Party’s Designated Material
`22.
`to any Outside Consultant, such Receiving Party must provide advance written notice by email to
`counsel for the Designating Party, which notice must include: (a) the individual’s name and
`business title; (b) business address; (c) business or profession; (d) the individual’s CV; (e) any
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 11 of 44
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`previous, current or anticipated relationship (personal or professional) with any of the Parties
`(and/or their predecessors or successors in interest) or a Party’s competitor (and/or their
`predecessors or successors in interest); (f) a list of other cases in which the individual has testified
`(at trial or deposition) within the last four years; (g) an identification of all companies with which
`the individual has consulted or by which the individual has been employed within the last four
`years;1 and (h) a signed copy of (1) the “Acknowledgment and Agreement To Be Bound By
`Protective Order” attached hereto as Exhibit A and (2) one or both of the “Certification Of Outside
`Consultant” attached hereto as Exhibit B and the “Certificate of Outside Process Recipe
`Consultant” attached hereto as Exhibit D.
`23. Objections. The Designating Party will have seven (7) business days from receipt
`of the notice specified in Paragraph 22 to object in writing to such disclosure. Any such objection
`must set forth in detail the grounds on which it is based. After the expiration of the 7-day period,
`if no objection has been asserted, then Designated Material may be disclosed to the Outside
`Consultant pursuant to the terms of this Order. However, if the Designating Party objects within
`the 7-day period, the Receiving Party may not disclose Designated Material to the challenged
`individual absent written resolution of the dispute or Court Order. In the event the Designating
`Party makes a timely objection, the Parties must meet and confer within three business days by
`telephone or in person to try to resolve the matter by agreement. If the Parties cannot reach an
`agreement, the objecting Party may within five (5) business days following the meet and confer
`move for a protective order preventing disclosure of Designated Material to the Outside Consultant
`or for other appropriate relief. If the objecting Party fails to move for protective order within the
`prescribed period, any objection to the Outside Consultant is waived, and Designated Material may
`thereafter be disclosed to such individual. If the objecting Party timely moves for a protective
`
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`1 If the Outside Consultant believes any of this information is subject to a confidentiality
`obligation to a third-party, then the Outside Consultant should provide sufficient information for
`the Designating Party to determine whether it needs to object to the Outside Consultant. In all
`instances, the Outside Consultant may not omit entirely the existence of work that was performed
`pursuant to a confidentiality agreement. In addition, the Party seeking to disclose to the Outside
`Consultant shall be available to meet and confer with the Designating Party regarding any such
`engagement.
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`[PROPOSED] PROTECTIVE ORDER
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`Case 5:20-cv-09341-EJD Document 123-1 Filed 01/26/22 Page 12 of 44
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`order, Designated Material must not be disclosed to the challenged individual until and unless a
`final ruling allowing such disclosure is made by this Court or by the consent of the objecting Party,
`whichever occurs first.
`E.
`Production of OUTSIDE COUNSEL EYES ONLY - SOURCE CODE Material
`24.
`Unless otherwise agreed to in writing between the Producing Party and the
`Receiving Party, Source Code designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE
`CODE” may only be provided on at least two stand-alone computers (that is, a computer not
`connected to a network, the Internet, or any peripheral device, except that the stand-alone computer
`may be connected to a printer or printers and a monitor and will have a mouse connected, all other
`ports must be disabled) at secure locations, to be made available during regular business hours (9:00
`a.m. to 6:00 p.m. local time) on weekdays on five (5) business days’ notice, at Producing Party’s
`counsel’s offices in the United States or another law firm’s offices in the United States designated
`by the Producing Party (“Source Code Computers”). The Receiving Party must identify in writing
`to the Producing Party the persons who will be conducting the inspection or will be present during
`the inspection no less than 48 hours in advance of any such inspection. Before being admitted into
`the secure location, an individual must provide a photo identification card issued by the United
`States federal government or the government of a state of the United States.
`25.
`The Producing Party will produce Source Code designated as “OUTSIDE
`COUNSEL EYES ONLY – SOURCE CODE” in computer searchable format and in a file structure
`and format that mirrors the file structure and format of the Source Code as maintained by the
`Producing Party in the ordinary course of business, pursuant to the provisions of Paragraph 24
`above, but need not produce in executable format absent further written agreement of the parties or
`order of the Court. The Producing Party may monitor any review of Source Code designated as
`“OUTSIDE COUNSEL EYES ONLY – SOURCE CODE”, but only as is reasonable to ensure
`compliance with this Protective Order and in a manner that will not interfere with the Receiving
`Party’s confidential communications or otherwise invade the Receiving Party’s attorney work
`product, and that will afford the Receiving Party adequate privacy to permit the development of
`appropriate work product. The Producing Party shall provide the Receiving Party with information
`
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`[PROPOSED] PROTECTIVE ORDER
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`explaining how to start, log on to, and operate the Source Code Computers in order to access the
`produced Source Code. In order to verify that its Source Code has not later been altered, the
`Producing Party may benchmark the materials to confirm that the materials have not been altered
`before and after they are provided but shall not install any keystroke or other monitoring software
`on the Source Code Computers. Each time a Producing Party makes Material available for review
`on the Source Code Computers, it shall promptly notify the Receiving Party of the same and provide
`a summary of the volume and nature of such newly available Material.
`26.
`Except as otherwise provided herein, no copies of any portion of the Source Code
`may leave the secure location in which the Source Code is inspected. Further, except as provided
`herein, no written or electronic record of the Source Code is permitted. Notwithstanding the
`foregoing, the Receiving Party may request printed copies of specific portions of Source Code
`designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE.” Within five (5) business
`days of the printing request, the Producing Party must either (i) provide five (5) paper copies of
`Source Code designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE” including
`Bates numbers and appropriate confidentiality labels when printed, along with a native Microsoft
`Excel file that lists the filepath and filename, as they appear on any stand-alone computer, of each
`requested file, correlated to the beginning Bates number of the corresponding print-out, or,
`alternatively, the Producing Party may brand printouts with the filepath and filename of each file,
`as it appears on any stand-alone computer; or (ii) object that a printing request is excessive and/or
`not done for a permitted purpose. The Producing Party must retain copies of any portions of Source
`Code printed and the Receiving Party is prohibited from removing the copies from the secure
`location. The entire code or an unreasonably large portion of the code must not be requested. The
`Receiving Party is not entitled to request copies in order to review blocks of Source Code
`designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE” elsewhere in the first
`instance, i.e., as an alternative to reviewing the materials electronically on the stand-alone
`computers provided by the Producing Party, as the parties acknowledge and agree that the purpose
`of the protections herein would be frustrated by printing portions of code for review and analysis
`elsewhere. Printouts of the Source Code that exceed 60 contiguous pages or 20% or more of a
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`[PROPOSED] PROTECTIVE ORDER
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`specific software release will be presumed excessive unless the Receiving Party provides a
`compelling justification that such printed portions are necessary. For example, if the requested
`portion of the source code comprises a complete code module that is directly relevant to the
`operation of the accused instrumentality, yet that requested portion exceeds the aforementioned
`page limits, such request may be deemed a compelling justification. If the Producing Party objects
`within three (3) business days of a printing request that the printing request is excessive and/or not
`done for a permitted purpose, the Producing Party and Receiving Party will meet and confer within
`three (3) business days of the Producing Party’s objection.