Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 1 of 11 PageID #: 689
`Case 1:12—cv—00398—GMS Document 35-3 Filed 05/06/13 Page 1 of 11 Page|D #: 689
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`EXHIBIT 3
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`EXHIBIT 3
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 2 of 11 PageID #: 690
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`UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
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`In the Matter of
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`CERTAIN CAMERAS AND MOBILE
`DEVICES, RELATED SOFTWARE AND
`~ARE,ANDCOMWONENTSTHEREOF
`AND PRODUCTS CONTAINING THE SAME
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`Inv. Np. 337-TA-842
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`Order No. 1: PROTECTIVE ORDER
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`WHEREAS, documents and information may be sought, produced or exhibited by and
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`among the parties to the above captioned proceeding, which materials relate to trade secrets or
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`other confidential research, development or commercial information, as such terms are used in
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`the Commission's Ru1es, 19 C.F.R 210.5;
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`IT IS HEREBY ORDERED THAT:
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`1. Confidential business information is information which has not been made public and
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`which concerns or relates to the trade secrets, processes, operations, style o~ work, or apparatus,
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`or to the production, sales, shipments, purchases, transfers, identification of customers,
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`inventories, amount or source of any income, profits, losses, or expenditures of any person, firm,
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`partnership, corporation, or other organization, the disclosure of which information is likely to
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`have the effect of either (i) impairing the Commission's ability to obtain such information as is
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`necessary to perform its statutory functions; or (ii) causing substantial harm to the competitive
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`position of the person, firm, partnership, corporation, or other organization from which the
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`information was obtained, unless the Commission is required by law to disclose Sl.lch
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`information.
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 3 of 11 PageID #: 691
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`2. (a) Any information submitted, in prehearing discovery or in a pleading, motion, or
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`response to a motion either voluntarily or pursuant to order, in this investigation, which is
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`asserted by a supplier to contain or constitute confidential business information shall be so
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`designated by such supplier in writing, or orally at a deposition, conference or hearing, atJd shall
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`be segregated from other information being submitted. Documents shall be clearly and
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`prominently marked on their face with the legend: "[supplier's name] CONFIDENTIAL
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`BUSINESS INFORMATION, SUBJECT TO PROTECTIVE ORDER," or a comparable notice.
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`During the prehearing phase of this investigation, such information whether submitted in writing
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`or in oral testimony shall be disclosed only in camera before the Commission or the
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`administrative law judge.
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`(b) The administrative law judge or the Commission may determine that information
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`alleged to be confidential is not confidential, or that its disclosure is necessary for the proper
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`disposition of the proceeding, before, during or after the close of a hearing herein. If such a
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`determination is made by the administrative law judge or the Commission, opportunity shall be
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`provided to the supplier of such information to argue its confidentiality prior to the time of such
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`ruling.
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`3. In the absence of written permission from the supplier or an order by the Commission
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`or the administrative law judge, any confidential documents or business information submitted in
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`accordance with the provisions of paragraph 2 above shall not be disclosed to any person other
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`than: (i) outside counsel for parties to this investigation, including necessary secretarial and
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`support personnel assisting such counsel; (ii) qualified persons taking testimo11y involving such
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`documents or infotmation and necessary stenographic and clerical personnel thereof; (iii)
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`technical experts and their staff who are employed for the purposes of this litigation (unless they
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`2
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 4 of 11 PageID #: 692
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`are otherwise employed by, consultants to, or otherwise affiliated with a non-governmental
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`party, or are employees of any domestic or foreign manufacturer, wholesaler, retailer, or
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`distributor of certain cameras and mobile devices, related software and firmware, and
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`components thereof and products containing the same, which are the subject of this
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`investigation); (iv) the Commission, the administrative law judge, the Commission staff, and
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`. personnel of any governmental agency as authorized by the Commission; and (v) the
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`Commission, its employees, and contract personnel who are actffig in the capacity of
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`Commission employees, for developing or maintaining the records of this investigation or related
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`proceedings for which this information is submitted, or in internal audits and investigations·
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`relating to the programs and operations of the Commission pursuant to 5 U.S.C. Appendix 3.1
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`4. Confidential business information submitted in accordance with the provisions of
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`paragraph 2 above shall not be made available to any person designated in paragraph J(i) and
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`(iii) unless he or she shall have first read this order and shall have agreed, by letter filed with the
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`Secretary of this Commission: (i) to be bound by the terms thereof; (ii) not to reveal such
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`confidential business information to anyone other than another person designated in paragraph 3;
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`and (iii) to utilize such confidential business information- solely for purposes of this _investigation.
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`5. If the Commission or the administrative law judge orders, or if the supplier and all
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`parties to the investigation agree, that access to, or dissemination of information submitted as
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`confidential business information shall be made to persons not included in paragraph 3 above,
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`such matter shall only be accessible to, or disseminated to, such persons based upon the
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`conditions pertaining to, and obligations arising from this order, and such persons shall be
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`1 See Commission Administrative Order 97-06 (Feb. 4, 1997).
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`3
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 5 of 11 PageID #: 693
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`considered subject to it, unless the Commission or the administrative law judge finds that the
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`information is not confidential business information as defined in paragraph 1 hereof.
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`6. Any confidential business information submitted to the Commission or the
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`administrative law judge in connection with a motion or other proceeding within the purview of
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`this investigation shall be submitted under seal pursuant to paragraph 2 above: Any portion of a
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`transcript in connection with this investigation containing any confidential business information
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`submitted pursuant to paragraph 2 above shall be bound separately and filed under seal. When
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`any confidential business information submitted in accordance with paragraph 2 above is
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`included in an authorized transcript of a deposition or exhibits thereto, arrangements shall be
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`made with the court reporter taking the deposition to bind such confidential portions and
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`separately label them "[supplier's name], CONFIDENTIAL BUSINESS INFORMATION,
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`SUBJECT TO PROTECTIVE ORDER." Before a court reporter receives any such information,
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`he or she shall have first read this order .and shall have agreed in writing to be bound by the terms
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`thereof. Alternatively, he or she shall sign the agreement included as Attachment A hereto.
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`Copies of each such signed agreement shall be provided to the supplier of such confidential
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`business information and the Secretary of the Commission.
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`7. The restrictions upon, and obligations accruing to, persons who become subject to this
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`order shall not apply to any information submitted in accordance with paragraph 2 above to
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`which the person asserting the confidential ~tus thereof agrees in writing, or.the Commission or
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`the administrative law judge rules, after an opportunity for hearing, was publicly known at the
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`time it was supplied to the receiving party or has since become publicly known through no fault
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`of the receiving party.
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 6 of 11 PageID #: 694
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`8. The Commission, the administrative law judge, and the Commission investigative
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`attorney acknowledge that any document or information submitted as confidential business
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`information pursuant to paragraph 2 above is to be treated as such within the me~g of 5
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`U.S.C. § 552(b)(4) and 18 U.S.C. § 1905, subject to a contrary ruling, after hearing, by the
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`Commission or its Freedom of Information Act Officer, or the administraqve law judge.
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`9. Unless a designation of confidentiality has been withdrawn, or a determination has
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`been made by the Commission or the administrative law judge that information designated as
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`confidential, is no longer confidential, the Commission, the administrative law judge, and the
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`Commission investigative attorney shall take all necessary and proper steps to preserve the
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`confidentiality of, and to protect each supplier's rights with respect to, any confidential business
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`information designated by the supplier in accordance with paragraph 2 above, including, without
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`limitation: (a) notifying the supplier promptly of (i) any inquiry or request by anyone for the
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`substance of or access of such confidential business information, other than those authorized
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`pursuant to this order, under the Freedom of Information Act, as amended (5 U.S.C. § 552) and
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`(ii) any proposal to declassify or make public any such confidential business information; and (b)
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`providing the supplier at least seven days after receipt of such inquiry or request within which to
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`take action before the Commission, its Freedom of Information Act Officer, or the administrative
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`law judge, or otherwise to preserve the confidentiality of and to protect its rights in, and to, such
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`confidential business information.
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`10. If while an investigation is before the ,administrative law judge, a party to this order
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`who is to be a recipient of any business information designated as confidential and submitted in
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`accordance with paragraph 2, disagrees with respect to such a designation, in full or in part, it
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`shall notify the supplier in writing, and they will thereupon confer as to the status of the subject
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 7 of 11 PageID #: 695
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`information.pro:ffered within the context of this order. If prior to, or at the time of such a
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`conference, the supplier withdraws its designation of such information as being subject to this
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`order, but nonetheless submits such information for purposes of the investigatio~ such supplier
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`shall express the withdrawal, in writing, and serve such withdrawal upon all parties and the
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`administrative law judge. If the recipient and supplier are unable to concur upon the status of the
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`subject information submitted as confidential business information within ten days from the date
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`of notification of such disagreement, any party to this order may raise the issue of the
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`designation of such a status to the administrative law judge who will rule upon the matter. The
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`administrative law judge may sua sponte question the designation of the confidential status of
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`any information and, after opportunity for hearing, may remove the confidentiality designation.
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`11. No less than 10 days (or any other period of time designated by the administrative
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`law judge) prior to the initial disclosure to· a proposed expert of any confidential information
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`submitted in accordance with paragraph 2, the party proposing to use such expert shall submit in
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`writing the name of such proposed expert and his or her educational and employment history to
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`the supplier. If the supplier objects to the disclosure of such confidential business information to
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`such proposed expert as inconsistent with the language or intent of this order or on other
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`grounds, it shall notify the recipient in writing of its objection and the grounds therefor prior to
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`the initial disclosure. If the dispute is not resolved on an inform~ basis within ten days of
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`receipt of such notice of objections, the supplier shall submit immediately each objection to the
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`administrative law judge for a ruling. If the investigation is before the Commission the matter
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`shall be submitted to the Commission for resolution. The submission of such confidential
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`business information to such proposed expert shall be withheld pending the ruling of the
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`Commission or the administrative law judge. The terms of this paragraph shall be inapplicable
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 8 of 11 PageID #: 696
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`to experts Within the Commission or to experts from other governmental agencies who are
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`consulted with or used by the Commission.
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`12. If confidential business information submitted in accordance with paragraph 2 is
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`disclosed to any person other than in the manner authorized by thisprotective order, the party
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`responsible for the disclosure must immediately bring all pertinent facts relating to such
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`disclosure to the attention of the supplier and the administrative law judge and, without prejudice
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`to other rights and remedies of the supplier, make every effort to prevent further disclosure by it
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`or by the ~n who was the recipient of such information.
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`13. Nothing in this order shall abridge the right of any person to seek judicial review or
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`to pursue other.appropriate judicial action with respect to any ruling made by the Commission,
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`its Freedom of Information Act Officer, or the administrative law judge concerning the issue of
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`the status of confidential business information.
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`14. Upon final termination of this investigation, each party that is subject to this order
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`shall assemble and return to the supplier all items containing confidential business information
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`submitted in accordance with paragraph 2 above, including all copies of such matter which may
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`have been made. Alternatively, the parties subject to this order may, with the written consent of
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`the supplier, destroy all items containing confidential business information and certify to the
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`supplier (or his counsel) that such destruction has taken place. This paragraph shall not apply to
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`the Commission, including its fuvestigative attorney, and the administrative law judge, which
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`shall retain such material pursuant to statutory requirements and for other recordkeeping
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`purposes, but may destroy those additional copies in its possession which it regards as
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`surplusage.
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 9 of 11 PageID #: 697
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`Notwithstanding the above paragraph, confidential business information may be
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`transmitted to a district court pursuant to Commission Rule 210.5(c).
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`15. If any confidential business information which is supplied in accordance with
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`paragraph 2 above is supplied by a nonparty to this investigation, such a nonparty shall be
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`considered a ••supplier" as that term is used in the context of this order.
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`16. Each nonparty supplier shall be provided a copy of this order by the party seeking
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`information from said supplier.
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`17. The Secretary shall serve a copy of this order upon all parties.
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`~ David P. Shaw
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`Administrative Law Judge
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`Issued: May 4, 2012
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 10 of 11 PageID #: 698
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`Attachment A
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`NONDISCLOSURE AGREEMENT FOR
`REPORTEWSTENOGRAPHEWTRANSLATOR
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`I, ________ , do solemnly swear or affirm that I will not divulge any
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`information communicated to me in any confidential portion of the investigation or hearing
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`in Certain Cameras and Mobile Devices, Related Software And Firmware, and
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`Components Thereof and Products Containing the Same, 337-TA-842, except as permitted
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`in the protective order issued in this case. I will not directly or indirectly use, or allow the
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`use of such information for any purpose other than that directly associated with my official
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`duties in this case.
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`Further, I will not by direct action, discussion, recommendation, or suggestion to
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`any person reveal the nature or content of any information communicated during any
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`confidential portion of the investigation or hearing in this case.
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`I also affirm that I do not hold any position or official relationship with any of the
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`participants in said investigation.
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`I am aware that the unauthorized use or conveyance of information as specified
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`above is a violation of the Federal Criminal Code and punishable by a fine of up to
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`$10,000, imprisonment of up to ten (10) years, or both.
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`Signed ______________________________________________________ __
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`Dmed __________________________________ ~---------------------
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`Firm or affiliation ----------------------------------------------
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`Case 1:12-cv-00398-GMS Document 35-3 Filed 05/06/13 Page 11 of 11 PageID #: 699
`CERTAIN CAMERASANDMOBILEDEVICES,RELATEDSOFfWAREANDFIRMWARE,
`ANDCOMPONENTSTHEREOFANDPRODUCTSCONTAJNmGTHESAME
`337-TA-842
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`PUBLIC CERTIFICATE OF SERVICE
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`I, Lisa R. Barton, hereby certify that the attached"ORDER NO. 1 has been served by hand upon the
`Commission Investigative Attorney, Daniel Girdwood, Esq., and the following parties as indicated,
`on
`May 7, 2012
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`~ L1sa
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`. arton, ctmg ecretary
`U.S. International Trade Commission
`500 E Street SW, Room 112A
`Washington, D.C. 20436
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`FOR COMPLAINANT HUMANEYES
`~CHNOLOGIES, LTD.:
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`Matthew D. Powers, Esq.
`TENSEGRITY LAW GROUP LLP
`555 Twin Dolphin Drive, Suite 360.
`Redwood Shores, CA 94065
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`( ) Via Hand Delivery
`( ) Via Overnight Mail
`~ Via First Class Mail
`( ) Other: ___ _
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`FOR RESPONDENTS SONY CORP., SONY
`CORP. OF ~RICA, SONY
`ELECTRONICS INC., SONY MOBILE
`COMMUNICATIONS AB, AND SONY
`MOBILE COMMUNICATIONS (USA) me.:
`
`Wesley W. Jones, Esq.
`KENYON.& KENYON LLP
`1500 K St., N. W.
`Washington, D. C. 20005
`
`( ) Via Hand Delivery
`( ) Via Overnight Mail
`~ Via First Class Mail
`( ) Other: ___ _
`
`( ) Via Hand Delivery
`( ) Via Overnight Mail
`
`Heather Hall
`LEXIS-NEXIS
`9443 Springboro Pike
`Miamisburg, OH 45342
`
`Kenneth Clair
`Thomson West
`1100 Thirteen Street, NW, Suite 200
`Washington, D.C. 20005
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`N Via First Class Mail
`H Via Overnight Mail
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`Other: - - - -
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`( ) Via Hand Delivery
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`Via First Class Mail
`Other: