Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 1 of 36 PageID #: 1033
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`
`
`
`
`ACTIVISION BLIZZARD, INC.
`
`
`
`Defendant.
`
`
`ACCELERATION BAY LLC,
`
`
`
`C.A. No. 15-228 (RGA)
`
`)))))))))
`
`
`
`C.A. No. 15-282 (RGA)
`
`
`
`C.A. No. 15-311 (RGA)
`
`)))))))))
`
`)))))))))
`
`))
`
`
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`ELECTRONIC ARTS INC.,
`
`
`
`Defendant.
`
`
`ACCELERATION BAY LLC,
`
`
`
`
`
`
`
`
`
`Plaintiff,
`
`
`
`v.
`
`
`TAKE-TWO INTERACTIVE SOFTWARE,
`INC., ROCKSTAR GAMES, INC. and
`2K SPORTS, INC.,
`
`
`
`
`
`Defendants.
`
`
`
`[PROPOSED] PROTECTIVE ORDER GOVERNING THE
`DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS
`
`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
`
`
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 2 of 36 PageID #: 1034
`
`
`necessary uses of such materials in preparation for and in the conduct of trial, it is hereby
`
`ORDERED THAT:
`
`1.
`
`DEFINITIONS. The terms defined in this Section 1 and parenthetically
`
`elsewhere shall, throughout this Order, have the meanings provided. Defined terms may be used
`
`in the singular or plural.
`
`1.1
`
`1.2
`
`The “Action” means the above-captioned litigations.
`
`“Party” means a party to the Action, including all of its officers, directors,
`
`employees, consultants, retained experts, and outside counsel (and their support staff).
`
`1.3
`
`“Material” means all information, documents, testimony, and things
`
`produced, served or otherwise provided in this action by any Party or by any non-party.
`
`1.4
`
`“Designated Material” means any Material
`
`that
`
`is designated
`
`“CONFIDENTIAL”,
`
`“CONFIDENTIAL-- OUTSIDE COUNSEL ONLY”,
`
`and/or
`
`“RESTRICTED CONFIDENTIAL – SOURCE CODE” under this Order. Designated Material
`
`shall not include advertising or other materials that have been actually published or publicly
`
`disseminated.
`
`1.5
`
`“Designating Party” means a Party or non-party that designates any
`
`Material in productions, in disclosures, or in responses to discovery as “CONFIDENTIAL”,
`
`“CONFIDENTIAL-- OUTSIDE COUNSEL ONLY”, and/or “RESTRICTED CONFIDENTIAL
`
`– SOURCE CODE.”
`
`1.6
`
`“Producing Party” means any Party or non-party that discloses or produces
`
`Material in this Action.
`
`1.7
`
`“Receiving Party” means any Party receiving production or disclosure of
`
`Material in this Action.
`
`2
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 3 of 36 PageID #: 1035
`
`
`1.8
`
`“Confidential Material” means information, documents, and things the
`
`Designating Party believes in good faith constitutes trade secret or other confidential research,
`
`development, or commercial information that is maintained in confidence by the Designating
`
`Party and not generally known to others.
`
`1.9
`
`“Confidential -- Outside Counsel Only Material” means Confidential
`
`Material that the Designating Party believes in good faith has significant competitive value such
`
`that unrestricted disclosure to others would create a substantial risk of serious injury.
`
`1.10
`
`“Restricted Confidential – Source Code Material” means extremely
`
`sensitive “Confidential Material” representing computer code and associated comments and
`
`revision histories, formulas, engineering specifications, or schematics that define or otherwise
`
`describe in detail the algorithms or structure of software or hardware designs, disclosure of
`
`which to another Party or Non-Party would create a substantial risk of serious harm that could
`
`not be avoided by less restrictive means.
`
`1.11
`
`“Counsel of Record” means (i) outside counsel who has entered an
`
`appearance as counsel for a Party and has not subsequently withdrawn, (ii) partners, principals,
`
`counsel, associates, employees and contract attorneys of such outside counsel to whom it is
`
`reasonably necessary to disclose the information for this Action, including supporting personnel
`
`employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks and
`
`shorthand reporters, and/or (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.
`
`1.12
`
`“Outside Consultant” means any person with specialized knowledge or
`
`experience in a matter pertinent to this Action who has been retained by Counsel of Record to
`
`3
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 4 of 36 PageID #: 1036
`
`
`serve as an expert witness, or as a consultant in this Action, and who is not a current employee of
`
`a Party or of a competitor of a Party and who, at the time of retention, is not anticipated to
`
`become an employee of a Party or of a competitor of a Party.
`
`1.13
`
`“Professional Vendors” means any persons or entities that provide
`
`litigation support services and their employees and subcontractors who have been retained or
`
`directed by Counsel of Record in this action, and who are not current employees of a Party or of
`
`a competitor of a Party and who, at the time of retention, are not anticipated to become
`
`employees of a Party or of a competitor of a Party. Litigation support services include but are
`
`not limited to: photocopying; videotaping; translating; designing and preparing exhibits,
`
`graphics, or demonstrations; organizing, storing, retrieving data in any form or medium; etc.
`
`Professional Vendors include ESI vendors and professional jury or trial consultants retained in
`
`connection with this litigation. Professional Vendors do not include consultants who fall within
`
`the definition of Outside Consultant.
`
`1.14
`
`“Termination” means the dismissal of the Action (whether through
`
`settlement or otherwise), or the entry of final judgment and expiration of all periods to appeal or
`
`to seek judicial review of such judgment or dismissal.
`
`1.15
`
`“Affiliate” shall mean, with respect to any Party, any other entity
`
`controlling, controlled by, or under common control with that Party. As used in this definition,
`
`the term “control” means the ownership of more than fifty percent (50%) of the ownership or
`
`equity interests of such entity.
`
`1.16
`
`“Patents-in-Suit” means U.S. Patent Nos. 6,701,344 (the “‘344 Patent”),
`
`6,714,966 (the “‘966 Patent”), 6,732,147 (the “‘147 Patent”), 6,829,634 (the “‘634 Patent”),
`
`6,910,069 (the “‘069 Patent”), 6,920,497 (the “‘497 Patent”), and any other patent asserted in
`
`4
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 5 of 36 PageID #: 1037
`
`
`this Action, as well as any related patents, patent applications, provisional patent applications,
`
`continuations, and/or divisionals.
`
`2.
`
`SCOPE
`
`2.1
`
`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 shall alter or change in
`
`any way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules of this
`
`Court, or the Court’s deadlines provided in any scheduling order or discovery order issued by the
`
`Court. Identification of any individual pursuant to this 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 Local Rules of this Court, and the Court’s deadlines
`
`provided in any scheduling order or discovery order issued by the Court.
`
`2.2
`
`Nothing in this Protective Order shall prevent or restrict a Producing
`
`Party’s own disclosure or use of its own Designated Material for any purpose, and nothing in this
`
`Order shall preclude any Producing Party from showing its Designated Material to an individual
`
`who prepared the Designated Material.
`
`2.3
`
`Nothing in this Order shall be construed to prejudice any Party’s right to
`
`use any Designated Material in court or in any court filing with the consent of the Producing
`
`Party or by order of the Court.
`
`2.4
`
`This Order does not confer any right to any Defendant’s in-house attorney
`
`to access the Designated Material of any other Defendant. Furthermore, absent a specific
`
`agreement, no Defendant is required to produce its Designated Material to any other Defendant
`
`or Defendant’s counsel, but nothing
`
`in
`
`this Order shall preclude such production.
`
`5
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 6 of 36 PageID #: 1038
`
`
`Notwithstanding the provisions of this Protective Order, any Designated Material designated by
`
`a Defendant shall not be disclosed by the Plaintiff to any other Defendant or Defendant’s counsel
`
`(except in Court filings otherwise complying with this Order) absent explicit written agreement
`
`from the producing Defendant, but nothing herein shall prohibit Counsel of Record for any party
`
`from access to complete Court filings or oral argument in Court if necessary.
`
`3.
`
`MATERIAL DESIGNATED “CONFIDENTIAL.” Any Designating Party
`
`may designate as “CONFIDENTIAL” any Material that the party believes in good faith
`
`constitutes Confidential Material. Unless otherwise ordered by the Court or permitted in writing
`
`by
`
`the Designating Party, a Receiving Party may disclose any Material designated
`
`“CONFIDENTIAL” only to:
`
`(a)
`
`Persons who appear on the face of the Designated Material as an author,
`
`addressee, or recipient thereof;
`
`(b) Up to two (2) in-house employees of a Receiving Party (including a parent
`
`or affiliate of a Receiving Party), and necessary secretarial staff, who are responsible for
`
`providing oversight of or assistance in the litigation, provided that any such employee or staff
`
`has signed the “Acknowledgement and Agreement To Be Bound By Protective Order” attached
`
`hereto as Exhibit A, and provided an executed copy to the Producing Party prior to receiving any
`
`Designated Material;
`
`(c)
`
`Counsel of Record for the Designating Party or the Receiving Party;
`
`(d) Outside Consultants of
`
`the Receiving Party (including necessary
`
`employees of the Outside Consultants) provided that disclosure is only to the extent necessary to
`
`perform such work; and provided that: (a) such expert or consultant has agreed to be bound by
`
`the provisions of this Order by signing a copy of the “Acknowledgement and Agreement To Be
`
`6
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 7 of 36 PageID #: 1039
`
`
`Bound By Protective Order” attached hereto as Exhibit A, and the “Certification Of Consultant”
`
`attached hereto as Exhibit B, with the provisions of Section 6 being complied with prior to
`
`receiving any Designated Material; (b) such expert or consultant is not a current officer, director,
`
`or employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to
`
`become an officer, director or employee of a Party or of a competitor of a Party; (c) such expert
`
`or consultant accesses the materials in the United States only, and does not transport them to or
`
`access them from any foreign jurisdiction; and (d) no unresolved objections to such disclosure
`
`exist after proper notice has been given to all Parties as set forth in Paragraph 6 below;
`
`(e) Witnesses at deposition and/or trial consistent with the provisions of
`
`Section 7 below, provided that such witnesses may not retain copies of Designated Material
`
`unless permitted by other provisions of this Order;
`
`(f)
`
`The Court and its personnel, any technical advisor that the Court may
`
`appoint, and any Jury impaneled in the Action;
`
`(g) Any designated arbitrator or mediator who is assigned to hear this matter,
`
`or who has been selected by the Parties, and his or her staff;
`
`(h) Court reporters and videographers employed in connection with this case;
`
`(i)
`
`Professional Vendors to whom disclosure is reasonably necessary for this
`
`Action;
`
`(j)
`
`Jury consultants, trial consultants, or mock jurors selected by counsel in
`
`preparation for trial, provided they have signed the “Acknowledgement and Agreement To Be
`
`Bound By Protective Order” attached hereto as Exhibit A; and
`
`(k)
`
`Any other person authorized by written agreement of the Producing Party
`
`and the Receiving Party or by order of the Court.
`
`7
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 8 of 36 PageID #: 1040
`
`
`4.
`
`MATERIAL DESIGNATED
`
`“CONFIDENTIAL-- OUTSIDE
`
`COUNSEL ONLY.” Any Designating Party may designate as “CONFIDENTIAL-- OUTSIDE
`
`COUNSEL ONLY” any Material that the party believes in good faith constitutes Confidential --
`
`Outside Counsel Only Material. Unless otherwise ordered by the Court or permitted in writing
`
`by the Designating Party, Material designated as “CONFIDENTIAL-- OUTSIDE COUNSEL
`
`ONLY” shall be treated as Material designated as “CONFIDENTIAL” with the further
`
`restriction that it shall not be disclosed to any person identified in Section 3(b) above.
`
`5.
`
`MATERIAL DESIGNATED “RESTRICTED CONFIDENTIAL –
`
`SOURCE CODE.”
`
` Any Designating Party may designate as “RESTRICTED
`
`CONFIDENTIAL – SOURCE CODE” any Material that the party believes in good faith
`
`constitutes Restricted Confidential – Source Code Material. Unless otherwise ordered by the
`
`Court or permitted in writing by the Designating Party, Material designated as “RESTRICTED
`
`CONFIDENTIAL – SOURCE CODE” shall be
`
`treated as Material designated as
`
`“CONFIDENTIAL-- OUTSIDE COUNSEL ONLY” with the further restriction that (i) it shall
`
`not be disclosed to any person identified in Sections 3(g), 3(i) or 3(j) above; (ii) shall be
`
`disclosed to no more than three persons identified in Section 3(d) above; and (iii) such Material
`
`is subject to the provisions of Section 8 of this Order.
`
`6.
`
`DISCLOSURE TO OUTSIDE CONSULTANTS. No disclosure of Designated
`
`Material to Outside Consultants shall occur until the notice and resolution of objection
`
`procedures of this Section are followed.
`
`6.1
`
`Notice. If a Receiving Party wishes to disclose another Party’s Designated
`
`Material to any Outside Consultant, such Receiving Party must provide notice to counsel for the
`
`Designating Party, which notice shall include: (a) the individual’s name and business title; (b)
`
`8
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 9 of 36 PageID #: 1041
`
`
`business address; (c) business or profession; (d) the individual’s CV; (e) any previous or current
`
`relationship (personal or professional) with any of the Parties or any entity that the either
`
`Receiving Party or the Outside Consultant has reason to believe is an Affiliate of any of the
`
`Parties; (f) a list of other cases in which the individual has testified (at trial or by deposition)
`
`within the last four years; (g) a list of all companies with which the individual has consulted or
`
`by which the individual has been employed within the last four years; and (h) a signed copy of
`
`the “Acknowledgement and Agreement To Be Bound By Protective Order” attached as Exhibit
`
`A, and the “Certification Of Consultant” attached hereto as Exhibit B.
`
`6.2 Objections. The Designating Party shall have seven (7) business days
`
`from receipt of the notice specified in Section 6.1 to object in writing to such disclosure (plus
`
`three (3) extra days if notice is given other than by hand delivery, e-mail transmission or
`
`facsimile transmission). Any such objection must set forth in detail the grounds on which it is
`
`based. After the expiration of the 7-day (plus 3-days, if appropriate) 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 (plus 3-days,
`
`if appropriate) period, the Receiving Party may not disclose Designated Material to the
`
`challenged individual absent resolution of the dispute or Court Order. In the event the
`
`Designating Party makes a timely objection, the parties shall promptly meet and confer 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, file a motion for a protective
`
`order preventing disclosure of Designated Material to the Outside Consultant, or for other
`
`appropriate relief. If the Objecting Party files a timely motion for a protective order, Designated
`
`Material shall not be disclosed to the challenged individual until and unless a final ruling
`
`9
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 10 of 36 PageID #: 1042
`
`
`allowing such disclosure is made by this Court, or by the consent of the Objecting Party,
`
`whichever occurs first. If the Objecting Party fails to file a motion for a protective order within
`
`the prescribed period the Designated Material may thereafter be disclosed to such individual.
`
`7.
`
`USE AT DEPOSITION
`
`7.1 A present director, officer, agent, employee, designated Rule 30(b)(6)
`
`witness, and/or Outside Consultant of a Producing Party may be shown at deposition and
`
`examined on all Designated Material that has been produced by that Party;
`
`7.2
`
`A former director, officer, agent and/or employee of a Producing Party
`
`may be shown at deposition and examined on all Designated Material that has been produced by
`
`that Party and that the Receiving Party’s Outside Counsel reasonably and in good faith believes
`
`to have been received by the witness previously or that refers to matters within the witness’s
`
`personal knowledge pertaining to the period or periods of his or her employment, engagement, or
`
`relationship with the Producing Party;
`
`7.3
`
`Non-parties may be shown at deposition and examined on any document
`
`containing Designated Material of a Producing Party that appears on its face, or which the
`
`Receiving Party’s Outside Counsel reasonably and in good faith believes based on other
`
`documents or testimony, to have been received from or communicated to the non-party. Any
`
`person other than the witness, his or her attorney(s), and any person qualified to receive
`
`Designated Material under this Order, shall be excluded from the portion of the examination
`
`concerning such information, unless the Producing Party consents to persons other than qualified
`
`recipients being present at the examination. If the witness is represented by an attorney who is
`
`not qualified under this Order to receive such information, then prior to the examination, the
`
`attorney shall be requested to sign the “Acknowledgement and Agreement To Be Bound By
`
`10
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 11 of 36 PageID #: 1043
`
`
`Protective Order” attached as Exhibit A. In the event that such attorney declines to sign the
`
`Acknowledgement and Agreement To Be Bound By Protective Order prior to the examination,
`
`the parties, by their attorneys, shall jointly seek a protective order from the Court prohibiting
`
`such attorney from disclosing such Designated Material.
`
`7.4
`
`A witness who previously had access to a document designated
`
`“CONFIDENTIAL,” “CONFIDENTIAL-- OUTSIDE COUNSEL ONLY,” or “RESTRICTED
`
`CONFIDENTIAL – SOURCE CODE” but who is not under a present non-disclosure agreement
`
`with the Producing Party that covers that document, may be shown the document at deposition if
`
`the witness is advised on the record of the existence of the Protective Order and that the
`
`protective order requires the parties to keep confidential any questions, testimony or documents
`
`that are designated as “CONFIDENTIAL,” “CONFIDENTIAL-- OUTSIDE COUNSEL
`
`ONLY,” or “RESTRICTED CONFIDENTIAL – SOURCE CODE.” The witnesses may not
`
`copy, take notes on or retain copies of any Designated Material used or reviewed at the
`
`deposition. The witness may not take out of the deposition room any exhibit that is marked
`
`“CONFIDENTIAL”, “CONFIDENTIAL-- OUTSIDE COUNSEL ONLY” or “RESTRICTED
`
`CONFIDENTIAL – SOURCE CODE”. The Producing Party of any Designated Material used at
`
`the deposition may also require that the transcript and exhibits not be copied by a witness who is
`
`not subject to this Order or his counsel who is not subject to this Order, that no notes may be
`
`made of the transcript or the exhibits, and that the transcript and exhibits may only be reviewed
`
`by the witness in the offices of one of the counsel representing a party in this case (or another
`
`firm acting for one of the counsel representing a party in this case and under the supervision of
`
`one of the lawyers who is bound by the terms of this Order).
`
`11
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 12 of 36 PageID #: 1044
`
`
`7.5
`
`Except as may be otherwise ordered by the Court, and without limitation
`
`as to any of the other provisions of this section, any person may be examined as a witness by
`
`deposition, and may testify concerning all Designated Material of which such person has prior
`
`knowledge.
`
`7.6
`
`Notwithstanding any sub-Section of this Section 7, no copies of
`
`Designated Material may be provided to any deponent or trial witness other than for purposes of
`
`the examination without the written consent of the Producing Party.
`
`8.
`
`PRODUCTION OF SOURCE CODE. To the extent any Party’s Source Code
`
`is relevant and discoverable in this Action, this Section shall govern the production of Source
`
`Code in this Action. The provision of this section shall also be available for the production of
`
`Source Code by non-parties, however, such production may be governed by a supplemental
`
`confidentiality order negotiated between the Receiving Party and the non-party.
`
`8.1
`
`Source Code designated as “RESTRICTED CONFIDENTIAL –
`
`SOURCE CODE” shall be made available for the Receiving Party’s inspection.
`
`(a)
`
`Source Code designated as “RESTRICTED CONFIDENTIAL –
`
`SOURCE CODE” shall be maintained by the Producing Party and made available for inspection
`
`by the Receiving Party only on a single stand-alone computer (that is, a computer not connected
`
`to any network, the Internet, or any peripheral device other than a keyboard, mouse, and
`
`monitor) and produced in electronic and searchable form in a manner consistent with how the
`
`code being produced is maintained in the ordinary course of business (e.g. with folder hierarchies
`
`preserved). Any reasonable request for production of Source Code on additional stand-alone
`
`computers shall be considered in good faith and not be unreasonably withheld.
`
`12
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 13 of 36 PageID #: 1045
`
`
`(b)
`
`The stand-alone computer shall be maintained in a secured location at the
`
`offices of the Producing Party’s outside counsel or at the offices of the Producing Party, access
`
`to which shall be controlled by reasonable physical (e.g., locked doors) and electronic (e.g.,
`
`password or other access provisions) security measures. Use of any input/output device (e.g.,
`
`USB memory stick, CDs, floppy disk, portable hard drive, etc.) is prohibited while accessing the
`
`computer containing the Source Code, and the Receiving Party shall not attempt to use any
`
`peripheral device of any kind (other than the keyboard, mouse, and monitor provided by the
`
`Producing Party) with the stand-alone computer, nor shall the Receiving Party attempt to install
`
`any software on the stand-alone computer.
`
`
`
`
`
`(c)
`
`The Producing Party shall install tools and software that are sufficient for
`
`viewing and searching the code produced on the platform produced, including any tools provided
`
`by the Receiving Party in accordance with the provisions and restrictions of sub-paragraph (d) of
`
`this section.
`
`
`
`(d)
`
`The Receiving Party’s outside counsel and/or experts may request that
`
`additional commercially available software tools for viewing and searching Source Code be
`
`installed on the secured computer, provided, however, that (a) the Receiving Party possesses an
`
`appropriate license to such software tools; (b) the Producing Party approves such software tools;
`
`and (c) such other software tools are reasonably necessary for the Receiving Party to perform its
`
`review of the Source Code consistent with all of the protections herein. The Producing Party
`
`may notify the Receiving Party that it declines to install any requested inspection software if the
`
`software represents any unreasonable risk of compromising security of the source code or the
`
`Source Code Computer, or the software could be used for any other illegitimate purpose in
`
`contravention of the Protective Order. Within 3 days of such notification by the Producing
`
`13
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 14 of 36 PageID #: 1046
`
`
`Party, the parties shall meet and confer in good faith to attempt to resolve the issue. If the parties
`
`cannot resolve the issue, the Producing Party may bring a motion to the Court, but the pendency
`
`of the motion will not be used as a basis to withhold access by the Receiving Party of the source
`
`code for review using other tools. For emphasis, it should be noted that the tools for reviewing
`
`source code may not be used to circumvent the protections of this Protective Order in any way.
`
`
`
`(e)
`
`The foregoing terms do not foreclose the Receiving Party from seeking the
`
`production of source code in different formats or foreclose the Producing Party from seeking
`
`additional protections or a protective order. The parties will meet and confer promptly and in
`
`good faith in such circumstances.
`
`8.2
`
`Inspection of Source Code shall be permitted during regular business
`
`hours (weekdays 9:00 a.m. to 6:00 p.m. at law firms) although the Parties will be reasonable in
`
`accommodating requests to conduct inspections at other times.
`
`8.3
`
`At the Producing Party’s selection, the secure location will be at an office
`
`of the Producing Party’s Counsel of Record or at the offices of the Producing Party. The
`
`Producing Party shall also be entitled to have a person who is not an attorney monitor the
`
`Receiving Party’s activities in the source code viewing room, but only to ensure compliance with
`
`the provisions of this Order governing source code. The person who monitors the review of
`
`source code cannot be unreasonably close in proximity to the Reviewing Party’s counsel and
`
`consultants/experts such that he or she can listen to conversations between the Reviewing Party’s
`
`counsel and experts, and is prohibited from engaging in any conduct that interferes with the
`
`review. The Producing Party will make a separate, private room available for the Receiving
`
`Party to confer or talk on the phone.
`
`14
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 15 of 36 PageID #: 1047
`
`
`8.4
`
`No person shall copy, e-mail, transmit, upload, download, print,
`
`photograph, or otherwise duplicate any portion of Source Code, or documents or things
`
`designated “RESTRICTED CONFIDENTIAL – SOURCE CODE,” except as follows:
`
`(a)
`
`The Receiving Party may request a reasonable number of pages of
`
`Source Code to be printed. A reasonable number of pages means no more than 250 pages of
`
`Source Code per game, and in any case, no more than 35 contiguous pages of Source Code, on
`
`8.5” x 11” paper with a font no smaller than Courier 12pt. The parties agree to negotiate printing
`
`beyond these page limits in good faith should the need arise. The Producing Party shall provide
`
`a printer with water-marked (or colored), bates-number paper with the legend “RESTRICTED
`
`CONFIDENTIAL – SOURCE CODE” such that the Receiving Party can print the source code
`
`during the review. After the Receiving Party has completed its review and printing for the day,
`
`the Receiving Party shall provide the print-outs to the Producing Party for review. In the
`
`instance of a multiple day review, the Producing Party shall maintain copies printed during the
`
`course of the review until the conclusion of the review. The printed pages shall constitute part of
`
`the source code produced by the Producing Party in this action. If there is no objection, within
`
`three (3) business days, the Producing Party shall provide the print-outs to the Receiving Party.
`
`If the Producing Party has any objection to the print-outs, the Producing Party must object in
`
`writing within three (3) business days from receiving the print-outs from the Receiving Party. If
`
`no resolution can be reached, the Producing Party must file a motion for Protective Order with
`
`the Court no later than five (7) business days from receiving the print-outs from the Receiving
`
`Party.
`
`(b)
`
`Any printed pages of Source Code, and any other documents or
`
`things designated as “RESTRICTED CONFIDENTIAL – SOURCE CODE,” may be
`
`15
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 16 of 36 PageID #: 1048
`
`
`photocopied, but not digitally
`
`imaged, e-mailed,
`
`transmitted, uploaded, downloaded,
`
`photographed, or otherwise duplicated, to be provided to Outside Consultants. Apart from such
`
`photocopies, any printed pages of Source Code, and any other documents or things designated as
`
`“RESTRICTED CONFIDENTIAL – SOURCE CODE,” may not be copied, digitally imaged, e-
`
`mailed, transmitted, uploaded, downloaded, photographed, or otherwise duplicated, except in
`
`limited excerpts necessary to prepare as exhibits to depositions, expert reports, court filings, or
`
`court presentations.
`
`(c)
`
`A Receiving Party that wants to use any Source Code, or other
`
`documents or things designated as “RESTRICTED CONFIDENTIAL – SOURCE CODE,” at a
`
`deposition may, no earlier than 72 hours prior to any such deposition, make only as many copies,
`
`and only of the specific pages, as it intends to actually use at the deposition. For any
`
`RESTRICTED CONFIDENTIAL – SOURCE CODE material used as a deposition exhibit, the
`
`exhibit shall be identified on the record, by Bates number or otherwise. The Receiving Party
`
`shall retain the original of any such exhibit and shall provide a copy of the original exhibit to the
`
`Producing Party at the conclusion of the deposition. No source code Exhibits shall be retained
`
`by the Court reporter at the conclusion of the deposition or appended to the transcript by the
`
`Court Reporter. At the conclusion of the deposition, the Producing Party will collect and shred
`
`any other copies of the source code that may have been distributed at the deposition, with the
`
`exception of the Parties’ working copy(ies).
`
`(d)
`
`A Receiving Party that wants to file or otherwise submit any
`
`Source Code, or other documents or things designated as “RESTRICTED CONFIDENTIAL –
`
`SOURCE CODE,” to the Court in connection with a filing may, no earlier than 72 hours prior to
`
`the relevant filing, make only as many copies, and only of the specific pages as needed, for
`
`16
`
`

`
`Case 1:15-cv-00311-RGA Document 43 Filed 12/08/15 Page 17 of 36 PageID #: 1049
`
`
`submission to the Court and shall file any and all such copies of the materials with an application
`
`to file under seal. Unless agreed to by the Producing Party, images or copies of source code shall
`
`not be included in correspondence between the parties.
`
`8.5
`
`Any paper copies, documents, or things designated “RESTRICTED
`
`CONFIDENTIAL – SOURCE CODE” shall be stored or viewed only at (i) the offices of
`
`Counsel of Record for the Receiving Party; (ii) the offices of Outside Consultants who have been
`
`approved to access “RESTRICTED CONFIDENTIAL – SOURCE CODE” materials; (iii) the
`
`site where any deposition is taken; (iv) the Court; or (v) any intermediate location necessary to
`
`transport the information to a hearing, trial, or deposition. Paper copies stored in locations (i)
`
`and (ii) shall be maintained at all times in a locked and secure area.
`
`8.6
`
` The Producing Party may maintain a Source Code Access Log
`
`identifying, for each and every time any Source Code is viewed, or accessed at the secure
`
`location: (1) the name of each person who accessed the Source Code; (2) the date and time of
`
`access; (3) the length of time of access; and (4) describing any photocopying or printing of
`
`Source Code (e.g. what was printed, how many copies,