Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1754 Page 1 of 33
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF CALIFORNIA
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`APPLE INC.,
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`v.
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`WI-LAN, INC.,
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`Plaintiff Apple Inc. and Defendant Wi-LAN Inc. anticipate that documents,
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`Plaintiff,
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`Defendant.
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`Case No. 14cv2235-DMS (BLM)
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`AGREED PROTECTIVE
`ORDER REGARDING THE
`DISCLOSURE AND USE OF
`DISCOVERY MATERIALS
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`testimony, or information containing or reflecting confidential, proprietary, trade
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`secret, and/or commercially sensitive information are likely to be disclosed or
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`produced during the course of discovery, initial disclosures, and supplemental
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`disclosures in this Litigation and request that the Court enter this Order setting forth
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`the conditions for treating, obtaining, and using such information.
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`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
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`good cause for the following Agreed Protective Order Regarding the Disclosure and
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`Use of Discovery Materials (“Order” or “Protective Order”).
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`1.
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`PURPOSES AND LIMITATIONS
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`(a)
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`Protected Material designated under the terms of this Protective
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`Order shall be used by a Receiving Party solely for this Litigation, and shall be used
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`-1-
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`14cv2235-DMS (BLM)
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`

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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1755 Page 2 of 33
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`only for the purpose of litigating this Litigation, and shall not be used directly or
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`indirectly for any other purpose whatsoever.
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`(b) The Parties acknowledge that this Order does not confer blanket
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`protections on all disclosures during discovery, or in the course of making initial or
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`supplemental disclosures under Rule 26(a). Designations under this Order shall be
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`made with care and shall not be made absent a good faith belief that the designated
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`material satisfies the criteria set forth below. If it comes to a Producing Party’s
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`attention that designated material does not qualify for protection at all, or does not
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`qualify for the level of protection initially asserted, the Producing Party must promptly
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`notify all other Parties that it is withdrawing or changing the designation.
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`2.
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`DEFINITIONS
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`(a)
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`“Discovery Material” means all items or information, including
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`from any non-party, regardless of the medium or manner generated, stored, or
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`maintained (including, among other things, testimony, transcripts, or tangible things)
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`that are produced, disclosed, or generated in connection with discovery or Rule 26(a)
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`disclosures in this Litigation.
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`(b)
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`“Litigation” means the case styled as Apple Inc. v. Wi-LAN Inc.,
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`Case No. 3:14-cv-02235-DMS (BLM) (S.D. Cal.).
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`(c)
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`“Outside Counsel” means (i) outside counsel who appear on the
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`pleadings as counsel for a Party and (ii), partners, associates, and staff of such counsel
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`to whom it is reasonably necessary to disclose the information for this Litigation,
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`including supporting personnel employed by the attorneys, such as paralegals, legal
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`secretaries, legal translators, and legal clerks; or (iii) independent attorneys contracted
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`to assist outside counsel in connection with this action.
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`(d)
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`“Patents-in-suit” means U.S. Patent Nos. 8,457,145; 8,462,723;
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`8,537,757; 8,615,020; and 8,462,761, and any other patent asserted in this Litigation,
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1756 Page 3 of 33
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`as well as any related patents, patent applications, provisional patent applications,
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`continuations, and/or divisionals.
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`(e)
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`“Party” means any party to this Litigation, including all of its
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`officers, directors, employees, consultants (and their support staff), retained experts
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`(and their support staff), and Outside Counsel.
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`(f)
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`“Producing Party” means any Party or non-party that discloses or
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`produces any Discovery Material in this Litigation.
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`(g)
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`“Protected Material” means any Discovery Material that is
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`designated as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY –
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`RESTRICTED,” as provided for in this Order. Protected Material shall not include:
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`(i) advertising materials that have been actually published or publicly disseminated;
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`and (ii) materials that show on their face they have been disseminated to the public.
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`(h)
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`“Receiving Party” means any Party who receives Discovery
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`Material from a Producing Party.
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`(i)
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`“Source Code” means confidential, proprietary, trade secret and/or
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`commercially sensitive computer code, scripts, assembly code, object code, source
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`code listings and descriptions of source code, object code listings and descriptions of
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`object code, and Hardware Description Language (HDL) or Register Transfer Level
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`(RTL) files that describe the hardware design of any ASIC or other chip, and similar
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`detailed implementation documents.
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`3.
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`COMPUTATION OF TIME
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`The computation of any period of time prescribed or allowed by this Order shall
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`be governed by the provisions for computing time set forth in Federal Rules of Civil
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`Procedure 6 and Local Rule 7.1(c), in their present form as of the date this Order is
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`entered by the Court.
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`///
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1757 Page 4 of 33
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`4.
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`SCOPE
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`(a) The protections conferred by this Order cover not only Discovery
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`Material governed by this Order as addressed herein, but also any information copied
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`or extracted therefrom, as well as all copies, excerpts, summaries, or compilations
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`thereof, plus testimony, conversations, or presentations by Parties or their counsel in
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`court or in other settings that might reveal Protected Material.
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`(b) Nothing in this Protective Order shall prevent or restrict a
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`Producing Party’s own disclosure or use of its own Protected Material for any
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`purpose, and nothing in this Order shall preclude any Producing Party from showing
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`its Protected Material to an individual who prepared the Protected Material.
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`(c) Nothing in this Order shall be construed to prejudice any Party’s
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`right to use any Protected Material in court or in any court filing with the consent of
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`the Producing Party or by order of the Court.
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`(d) This Order is without prejudice to the right of any Party to seek
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`further or additional protection of any Discovery Material or to modify this Order in
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`any way, including, without limitation, an order that certain matter not be produced at
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`all.
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`5.
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`DURATION
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`Even after the termination of this Litigation, the confidentiality obligations
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`imposed by this Order shall remain in effect until a Producing Party agrees otherwise
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`in writing or a court order otherwise directs.
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`6.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`(a) Basic Principles. All Protected Material shall be used solely for
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`this Litigation or any related appellate proceeding, and not for any other purpose
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`whatsoever, including without limitation any other litigation, patent prosecution or
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`acquisition, patent reexamination or reissue proceedings, or any business or
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1758 Page 5 of 33
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`competitive purpose or function. Protected Material shall not be distributed, disclosed
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`or made available to anyone except as expressly provided in this Order.
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`(b)
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`Patent Prosecution Bar. Absent written consent of the Producing
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`Party, any person on behalf of the Receiving Party who receives one or more items
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`designated “CONFIDENTIAL ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL
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`- OUTSIDE ATTORNEYS’ EYES ONLY – RESTRICTED” by the Producing Party
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`shall not participate in the preparation or prosecution, on behalf of the Receiving
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`Party, its acquirer, successor, predecessor, or other affiliate, before a Patent Office of
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`any patent, patent application, or for drafting or revising patent claims (excluding such
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`activities conducted in the context of postgrant proceeding including reexamination,
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`Inter Partes Review, or opposition proceedings) directed to wireless or RF
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`communications involving requesting and allocating bandwidth, or products
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`incorporating such technology, from the time of receipt of such material following the
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`first to occur of (i) the complete resolution of this case through entry of a final non-
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`appealable judgment or order for which appeal has been exhausted; or (ii) the
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`complete settlement of all claims in this action; or (iii) the individual person(s) cease
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`to represent the Receiving Party or respective client in this case.
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`(c)
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`Secure Storage. Protected Material must be stored and maintained
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`by a Receiving Party at a location and in a secure manner that ensures that access is
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`limited to the persons authorized under this Order.
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`(d) Legal Advice Based on Protected Material. Nothing in this
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`Protective Order shall be construed to prevent counsel from advising their clients with
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`respect to this Litigation based in whole or in part upon Protected Materials, provided
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`counsel does not disclose the Protected Material itself except as provided in this
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`Order.
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`(e)
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`Filing Protected Material. Without written permission from the
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`Producing Party or a Court Order secured after appropriate notice to all interested
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1759 Page 6 of 33
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`persons, a Party may not file in the public record in this action any Protected Material,
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`but must file such Protected Material under seal in conformance with the Court’s rules
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`and procedures.1 Material filed under seal shall bear the title of this matter, an
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`indication of the nature of the contents of such sealed filing, the words
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`“CONFIDENTIAL INFORMATION – UNDER PROTECTIVE ORDER,”
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`“ATTORNEYS’ EYES ONLY INFORMATION – UNDER PROTECTIVE
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`ORDER,” or “OUTSIDE ATTORNEYS’ EYES ONLY – RESTRICTED
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`INFORMATION – UNDER PROTECTIVE ORDER,” as appropriate, and a
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`statement substantially in the following form: This filing contains confidential
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`information filed in this case by (name of party) and its contents shall not be displayed
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`or revealed except by order of the Court presiding over this matter.
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`(f)
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`Limitations. Nothing in this Order shall restrict in any way a
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`Producing Party’s use or disclosure of its own Protected Material. Nothing in this
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`Order shall restrict in any way the use or disclosure of Discovery Material by a
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`Receiving Party: (i) that is or has become publicly known through no fault of the
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`Receiving Party; (ii) that is lawfully acquired by or known to the Receiving Party
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`independent of the Producing Party; (iii) previously produced, disclosed and/or
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`provided by the Producing Party to the Receiving Party or a non-party without an
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`obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent
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`of the Producing Party; or (v) pursuant to order of the Court.
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`///
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`///
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`1 In accordance with Judge Major’s Chamber’s rules, no document may be filed under
`seal without explicit Court authorization. In that respect, a party must file a ‘public’
`version of any document that it seeks to file under seal. In the public version, the party
`may redact only that information that is deemed ‘Confidential.’ The party should file
`the redacted document(s) simultaneously with a joint motion or ex parte application
`requesting that the confidential portions of the document(s) be filed under seal and
`setting forth good cause for the request.
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1760 Page 7 of 33
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`7.
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`DESIGNATING PROTECTED MATERIAL
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`(a) Available Designations. Any Producing Party may designate
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`Discovery Material with any of the following designations, provided that it meets the
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`requirements for such designations as provided for herein: “CONFIDENTIAL,”
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL –
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`OUTSIDE ATTORNEYS’ EYES ONLY – RESTRICTED.” Any materials that are
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`publicly available, and not due to any unauthorized act or omission, or violation of
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`this Order, or otherwise do not contain confidential information, including but not
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`limited to (a) publicly available advertising materials, (b) non-draft materials that on
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`their face show that they have been published to the general public, or (c) documents
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`that have been submitted to any governmental entity without request for or
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`understanding regarding confidential treatment, shall not be considered Protected
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`Materials for purposes of this Litigation.
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`(b) Written Discovery and Documents and Tangible Things. Written
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`discovery, documents (which include “electronically stored information,” as that
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`phrase is used in Federal Rule of Procedure 34), and tangible things that meet the
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`requirements for the confidentiality designations listed in Paragraph 7(a) may be so
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`designated by placing the appropriate designation on at least the cover page of the
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`written material prior to production. For digital files being produced, the Producing
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`Party may mark each viewable page or image with the appropriate designation, and
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`mark the medium, container, and/or communication in which the digital files were
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`contained. In the event that original documents are produced for inspection, the
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`original documents shall be presumed “CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY” during the inspection and re-designated, as appropriate during the copying
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`process.
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`(c) Depositions and Testimony. Parties or testifying persons or entities
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`may designate depositions and other testimony with the appropriate designation by
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1761 Page 8 of 33
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`indicating on the record at the time the testimony is given or by sending written notice
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`of how portions of the transcript of the testimony is designated within ten (10) days of
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`receipt of the transcript of the testimony. If no indication on the record is made, all
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`information disclosed during a deposition shall be deemed “CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” until the time within which it may be appropriately
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`designated as provided for herein has passed. Any Party that wishes to disclose the
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`transcript, or information contained therein, may provide written notice of its intent to
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`treat the transcript as non-confidential, after which time, any Party that wants to
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`maintain any portion of the transcript as confidential must designate the confidential
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`portions within fourteen (14) days, or else the transcript may be treated as non-
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`confidential. Any Protected Material that is used in the taking of a deposition shall
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`remain subject to the provisions of this Protective Order, along with the transcript
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`pages of the deposition testimony dealing with such Protected Material. In such cases
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`the court reporter shall be informed of this Protective Order and shall be required to
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`operate in a manner consistent with this Protective Order. In the event the deposition
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`is videotaped, the original and all copies of the videotape shall be marked by the video
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`technician to indicate that the contents of the videotape are subject to this Protective
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`Order, substantially along the lines of “This videotape contains confidential testimony
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`used in this Litigation and is not to be viewed or the contents thereof to be displayed
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`or revealed except pursuant to the terms of the operative Protective Order in this
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`matter or pursuant to written stipulation of the parties.” Counsel for any Producing
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`Party shall have the right to exclude from oral depositions, other than the deponent,
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`deponent’s counsel, the reporter and videographer (if any), any person who is not
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`authorized by this Protective Order to receive or access Protected Material based on
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`the designation of such Protected Material. Such right of exclusion shall be applicable
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`only during periods of examination or testimony regarding such Protected Material.
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1762 Page 9 of 33
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`(d)
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`Information Not Reduced to Any Physical Form. For information
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`not reduced to any documentary, tangible, or physical form, or which cannot be
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`conveniently designated as set forth in Paragraphs 7(a) above, the Producing Party
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`must inform the Receiving Party of the designation of such information in writing.
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`8.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
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`(a) A Producing Party may designate Discovery Material as
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`“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or
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`commercially sensitive information.
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`(b) Unless otherwise ordered by the Court, Discovery Material
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`designated as “CONFIDENTIAL” may be disclosed only to the following:
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`(i)
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`The Receiving Party’s Outside Counsel, such counsel’s
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`immediate paralegals and staff, and any copying or clerical litigation support services
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`working at the direction of such counsel, paralegals, and staff;
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`(ii) Not more than four (4) representatives of the Receiving Party
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`who are officers or employees of the Receiving Party, who may be, but need not be,
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`in-house counsel for the Receiving Party, as well as their immediate paralegals and
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`staff, to whom disclosure is reasonably necessary for this Litigation, provided that: (a)
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`each such person has agreed to be bound by the provisions of the Protective Order by
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`signing a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist
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`after proper notice has been given to all Parties as set forth in Paragraph 12 below;
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`however as to Protected Material from third parties, absent a court order or agreement
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`of the third party, Protected Material from third parties may not be disclosed to in-
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`house counsel or employees of a Receiving Party.
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`(iii) Any outside expert or consultant (and their support staff)
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`retained by the Receiving Party to assist in this action, provided that disclosure is only
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`to the extent necessary to perform such work; and provided that: (a) such expert or
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`consultant has agreed to be bound by the provisions of the Protective Order by signing
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1763 Page 10 of 33
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`a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or
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`employee of a Party or of a competitor of a Party, nor anticipated at the time of
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`retention to become an officer, director or employee of a Party or of a competitor of a
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`Party; and (c) no unresolved objections to such disclosure exist after proper notice has
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`been given to all Parties as set forth in Paragraph 12 below.
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`(iv) Court reporters, stenographers and videographers retained to
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`record testimony taken in this action, to whom disclosure is reasonably necessary for
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`this Litigation;
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`(v) The Court, jury, and Court personnel;
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`(vi) Graphics, translation, design, and/or trial consulting
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`personnel, provided that each person, including their staff, has agreed to be bound by
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`the provisions of the Protective Order by signing a copy of Exhibit A;
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`(vii) Mock jurors who have signed an undertaking or agreement
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`agreeing not to publicly disclose Protected Material and to keep any information
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`concerning Protected Material confidential;
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`(viii) Any mediator who is assigned to hear this matter, and his or
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`her staff, subject to their agreement to maintain confidentiality to the same degree as
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`required by this Protective Order; and
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`(ix) Any other person with the prior written consent of the
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`Producing Party.
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`9.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY”
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`(a) A Producing Party may designate Discovery Material as
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it contains or reflects
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`information that is extremely confidential and/or sensitive in nature and the Producing
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`Party reasonably believes that the disclosure of such Discovery Material is likely to
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`cause economic harm or significant competitive disadvantage to the Producing Party.
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`The Parties agree that the following information, if non-public, shall be presumed to
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`merit the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” designation: trade
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`secrets, pricing information, financial data, sales information, sales or marketing
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`forecasts or plans, business plans, sales or marketing strategy, product development
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`information, engineering documents, testing documents, employee information, and
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`other non-public information of similar competitive and business sensitivity.
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`(b) Unless otherwise ordered by the Court, Discovery Material
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`designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed
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`only to:
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`(i)
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`The Receiving Party’s Outside Counsel, provided that such
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`Outside Counsel is not involved in competitive decision-making, as defined by U.S.
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`Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party
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`or a competitor of a Party, and such Outside Counsel’s immediate paralegals and staff,
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`and any copying or clerical litigation support services working at the direction of such
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`counsel, paralegals, and staff;
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`(ii) Not more than three (3) in-house counsel of the Receiving
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`Party, as well as their immediate paralegals and staff to whom disclosure is reasonably
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`necessary for this Litigation, provided that: (a) each such person has agreed to be
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`bound by the provisions of the Protective Order by signing a copy of Exhibit A; and
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`(b) no unresolved objections to such disclosure exist after proper notice has been
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`given to all Parties as set forth in Paragraph 12 below;
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`(iii) Any outside expert or consultant (and their support staff)
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`retained by the Receiving Party to assist in this action, provided that disclosure is only
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`to the extent necessary to perform such work; and provided that: (a) such expert or
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`consultant has agreed to be bound by the provisions of the Protective Order by signing
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`a copy of Exhibit A; (b) such expert or consultant is not a current officer, director, or
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`employee of a Party or of a competitor of a Party, nor anticipated at the time of
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1765 Page 12 of 33
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`retention to become an officer, director, or employee of a Party or of a competitor of a
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`Party; (c) such expert or consultant is not involved in competitive decision-making, as
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`defined by U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on
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`behalf of a Party or a competitor of a Party; and (d) no unresolved objections to such
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`disclosure exist after proper notice has been given to all Parties as set forth in
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`Paragraph 12 below;
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`(iv) Court reporters, stenographers and videographers retained to
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`record testimony taken in this action;
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`(v) The Court, jury, and court personnel;
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`(vi) Graphics, translation, design, and/or trial consulting
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`personnel, provided that each person, including their staff, has agreed to be bound by
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`the provisions of the Protective Order by signing a copy of Exhibit A;
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`(vii) Mock jurors who have signed an undertaking or agreement
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`agreeing not to publicly disclose Protected Material and to keep any information
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`concerning Protected Material confidential;
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`(viii) Any mediator who is assigned to hear this matter, and his or
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`her staff, subject to their agreement to maintain confidentiality to the same degree as
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`required by this Protective Order; and
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`(ix) Any other person with the prior written consent of the
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`Producing Party.
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`10. DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
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`OUTSIDE ATTORNEYS’ EYES ONLY - RESTRICTED”
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`(a) A Producing Party may designate Discovery Material as
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`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - RESTRICTED” if it
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`comprises or includes:
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`(i)
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`Source Code;
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1766 Page 13 of 33
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`(ii) Confidential financial planning, business planning,
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`development, and strategy documents that the Producing Party believes in good faith
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`are not generally known to others, and have significant competitive value such that
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`unrestricted disclosure to others would create a substantial risk of serious injury, and
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`that the Producing Party would not normally reveal to third parties except in
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`confidence, or has undertaken with others to maintain in confidence. This designation,
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`however, shall not be used for a Producing Party’s sales records regarding its
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`products, license agreements, or related communications with parties to the
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`agreements.
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`(b) Nothing in this Order shall be construed as a representation or
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`admission that any particular material or information is properly discoverable in this
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`action, or to obligate any Party to produce any particular material or information.
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`(c) Unless otherwise ordered by the Court, Discovery Material
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`designated as “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY -
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`RESTRICTED” shall be subject to the provisions set forth in Paragraph 11 below, and
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`may be disclosed, subject to Paragraph 11 below, solely to:
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`(i)
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`The Receiving Party’s Outside Counsel, provided that such
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`Outside Counsel is not involved in competitive decision-making, as defined by U.S.
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`Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party
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`or a competitor of a Party, and such Outside Counsel’s immediate paralegals and staff,
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`and any copying or clerical litigation support services working at the direction of such
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`counsel, paralegals, and staff;
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`(ii) For the Source Code of any one Producing Party, up to three
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`(3) outside experts or consultants, and their necessary support personnel retained by
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`the Receiving Party to assist in this action, provided that disclosure is only to the
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`extent necessary to perform such work; and provided that: (a) each such person has
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`agreed to be bound by the provisions of the Protective Order by signing a copy of
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1767 Page 14 of 33
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`Exhibit A; (b) such expert or consultant is not a current officer, director, or employee
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`of a Party or of a competitor of a Party, nor anticipated at the time of retention to
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`become an officer, director or employee of a Party or of a competitor of a Party; (c)
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`such expert or consultant is not involved in competitive decisionmaking, as defined by
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`U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a
`
`Party or a competitor of a Party; and (d) no unresolved objections to such disclosure
`
`exist after proper notice has been given to all Parties as set forth in Paragraph 12
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`below. To the extent the Receiving Party seeks to have additional experts or
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`consultants obtain access to a particular Producing Party’s Source Code, the Parties
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`shall meet and confer in good faith.
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`(iii) For Protected Materials designated as “CONFIDENTIAL –
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`12
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`OUTSIDE ATTORNEYS’ EYES ONLY – RESTRICTED” other than the Source
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`Code of a Producing Party, any expert or consultant, and their necessary support
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`personnel, retained by the Receiving Party to assist in this action, provided that
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`disclosure is only to the extent necessary to perform such work; and provided that: (i)
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`said expert or consultant has signed the acknowledgement form annexed hereto as
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`Exhibit A agreeing to be bound by the terms of this Order; and (ii) no unresolved
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`objections to such disclosure exist after proper notice has been given to all parties to
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`which such notice is required to be given, as set forth in Paragraph 12 below;
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`20
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`(iv) Court reporters, stenographers and videographers retained to
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`21
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`record testimony taken in this action;
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`22
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`23
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`(v) The Court, jury, and court personnel;
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`(vi) Mock jurors who have signed an undertaking or agreement
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`24
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`agreeing not to publicly disclose Protected Material and to keep any information
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`25
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`concerning Protected Material confidential;
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1768 Page 15 of 33
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`(vii) Any mediator who is assigned to hear this matter, and his or
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`her staff, subject to their agreement to maintain confidentiality to the same degree as
`
`required by this Protective Order;
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`(viii) Graphics, translation, design, and/or trial consulting
`
`personnel, provided that each person, including their staff, has agreed to be bound by
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`the provisions of the Protective Order by signing a copy of Exhibit A; and
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`(ix) Any other person with the prior written consent of the
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`Producing Party.
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`11. DISCLOSURE AND REVIEW OF SOURCE CODE
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`(a) Any Source Code that is produced shall be made available for
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`inspection in electronic format at a secure site in the United States and at the
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`Producing Party’s discretion, either (i) an office of the Producing Party’s Outside
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`Counsel, (ii) an office of the Producing Party, or (iii) any other location mutually
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`agreed by the Parties. If the production of Source Code is at an escrow facility, all
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`reasonable costs associated therewith will be shared equally between the Receiving
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`Party and the Producing Party other than costs associated with software for reviewing
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`the Source Code, which shall be paid for by the party requesting such software.
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`Source Code will be made available for inspection between the hours of 9 a.m. and 7
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`p.m. on business days (i.e., weekdays that are not Federal holidays), although the
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`Parties will be reasonable in accommodating reasonable requests to conduct
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`inspections at other times. Upon written request by the Receiving Party, beginning
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`22
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`one week prior to the beginning of trial and continuing through the end of trial, access
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`to the Source Code must be provided under the same conditions and with the same
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`24
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`limitations and restrictions as provided in this Paragraph in San Diego, California.
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`25
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`(b)
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`Prior to the first inspection of any requested Source Code, the
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`26
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`Receiving Party shall provide five (5) business days’ notice of the Source Code that it
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`14cv02235-DMS (BLM)
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`Case 3:14-cv-02235-DMS-BLM Document 99 Filed 12/23/14 PageID.1769 Page 16 of 33
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`wishes to inspect. The Receivi