Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 1 of 21 PageID #: 671
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF.DELA WARE
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`v.
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`· FACEBOOK, INC.,
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`C.A. No. 16-116-RGA
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`JURY TRIAL DEMANDED
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`SOUND VIEW INNOVATIONS, LLC,
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`Plaintiff,
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`)
`)
`.)
`)
`)
`)
`)
`)
`Defendant.
`)
`~~~~~~~~~~~~~~~)
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`STIPULATED .PROTECTIVE ORDER
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`WHEREAS, it may be necessary or desirable to take discovery of .information which is
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`believed to be confidential and proprietary by the holder thereof; and
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`. WHEREAS,
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`the parties hereto desire to obtain a protective order to prevent
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`dissemination and unnecessary disclosilre of such information on the public record;
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`WHEREAS, such information likely will include, among other things, information about
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`sensitive products and/or services, proprietary design and development materials of products
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`and/or services, source code, strategic decision-making information, and marketing and sales
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`information ("Sensitive Information");
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`IT IS HEREBY STIPULATED, and subject to the Court's .approval, ORDERED,
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`pursuant to Federal Rules of Civil Procedure, Rule 26(c), ·that the following provisions shall
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`govern the handling of such confidential information and documents in these proceedings.
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`1.
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`PURPOSES AND LIMITATIONS
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`Disclosure and discovery activity in this action are likely to involve production of
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`confidential, proprietary, or private information for which special· protection from public
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`disclosure and from use for any purpose other than prosecuting this litigation may be warranted.
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`Accordingly, the parties hereby stipulate to and petition the Court to enter the following
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`Stipulated Protective Order. The parties acknowledge that this Order does not confer blanket
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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 2 of 21 PageID #: 672
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`protections on all disclosures or responses to discovery and that the protection it affords from
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`public disclosure and use extends only to the limited information or items that are entitled to
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`confidential treatment under the applicable legal principles.
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`2.
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`DEFINITIONS
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`2.1
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`Challenging Party: a Party or Non-Party that challenges the designation of
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`information or items under this Order.
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`2.2
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`"CONFIDENTIAL" Information or Items:
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`information (regardless of how it is
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`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
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`of Civil Procedure 26( c ).
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`2.3
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`Counsel· (without qualifier): Outside Counsel of Record and House Counsel (as
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`well as their support staff).
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`2A Designating Partv: .a Party or Non-Party that designates information or items that
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`it produces in disclosures or in responses to discovery as "CONFIDENTIAL" or "HIGHLY
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`CONFIDENTIAL-ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL-SOURCE.
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`CODE."
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`2.5
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`Disclosure or Discovery Material: all items or information, regardless of the
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`medium or manner in which it is generated, stored, or maintained (including, among otherthings,
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`testimony, transcripts, and tangible things), that are produced or generated in disclosures or
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`responses to discovery in this matter.
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`2.6
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`Expert: a person with specialized knowledge or experience in a matter pertinent
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`to the litigation who (1) has been retained by a Party or its Counsel to serve as an expert witness
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`or as a consultant in this action, (2) is not a past or current employee of a Party or of a Party's
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`competitor, and (3) at the time of retention, is not anticipated to become an employee of a Party
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`or of a Party's competitor.
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`2.7
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`"HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" Information or
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`Items: extremely sensitive "Confidential Information or Items," disclosure of which to another
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`2
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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 3 of 21 PageID #: 673
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`Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
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`less restrictive means.
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`2.8
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`"HIGHLY CONFIDENTIAL -
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`SOURCE CODE" Information or Items:
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`extremely sensitive "Confidential Information or Items" representing computer code and
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`associated comments and revision histories, formulas, engineering specifications, or schematics
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`that define or otherwise describe in detail the algorithms or structure of software or hardware
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`designs, disclosure of which to another Party or Non-Party would create a substantial risk of
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`serious harm that could not be avoided by less restrictive means.
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`2.9
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`House Counsel: attorneys who are employees of a party to this action. House
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`Counsel does not include Outside Counsel of Record or any other outside counsel.
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`2.10 Non-Party: any natural person, partnership, corporation, ass9ciation, or other
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`legal entity not named as a Party to this action.
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`2.11 Outside Counsel of Record: attorneys who are not employees of a party to this
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`action but are retained to represent or advise a party to this action and have appeared in this
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`action on behalf of that party or are employed by a law firm which has appeared on behalf of that
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`party. By agreement, John Desmarais or any other Desmarais LLP employee that has worked or is
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`working in a business capacity for Plaintiff will not have access to any information that Facebook
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`designates as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or
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`as "HIGHLY CONFIDENTIAL-SOURCE CODE."
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`2.12 ~: any party to this action, including all of its officers, directors, employees,
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`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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`2.13 Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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`Material in this action.
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`2.14 Professional Vendors: persons or entities that provide litigation supp()rt services
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`(e.g., photocopying, videotaping,
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`translating, preparing exhibits or demonstrations, and
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`organizing, storing, or retrieving data in any form or medium) and their employees and
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`subcontractors.
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`3
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`

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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 4 of 21 PageID #: 674
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`2.15 Protected Material:
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`.any Disclosure or Discovery Material that is designated as
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`"CONFIDENTIAL," or as "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or as
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`"HIGHLY CONFIDENTIAL- SOURCE CODE."
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`2.16 Receiving Partv: a Party that receives Di~closure or Discovery Material from a
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`Producing Party.
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`3.
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`SCOPE
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`The protections conferred by this Stipulation and Order cover not only Protected Material
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`(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
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`all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
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`conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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`However, the protections conferred by this Stipulation and Order do not cover the following
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`information: (a) any information that is in the public domain at the time of disclosure to a
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`Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
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`a result of publication not involving a violation of this Order, including becoming part of the
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`public record through trial or otherwise; and (b) any information known to the Receiving Party
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`prior to the disclosure or obtained by the Receiving Party after the disclosure from a source who
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`obtained the information lawfully and under no obligation of confidentiality to the Designating
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`Party. However, if the accuracy of information is confirmed only through the review of
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`Protected Material, then the information shall not be considered to be in the public-domain. For
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`example, unsubstantiated media speculations or rumors that are later confirmed to be accurate
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`through access to Protected Material are not "public domain" information. Such information is
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`explicitly included in the definition of "Protected Material" set forth in 2.15 above. Any use of
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`Protected Material at trial shall be governed by a separate agreement or order.
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`4.
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`DURATION
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`Even after final disposition of this litigation, the confidentiality obligations imposed by
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`this Order shall remain in effect until a Designating Party agrees otherwise in writing or a court
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`order otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all
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`4
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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 5 of 21 PageID #: 675
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`claims and defenses in this action, with or without prejudice; and (2) final judgment herein after
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`the completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this
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`action, including the time limits for filing any motions or applications . for extension of time
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`pursuant to applicable law.
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`5.
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`DESIGNATING PROTECTED MATERIAL
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`5 .1
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`Exercise of Restraint and Care in Designating Material for Protection. Each Party
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`or Non-Party that designates information or items for protection under this Order must take care
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`to limit any such designation to specific material that qualifies under the appropriate standards.
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`To the extent it is practical to do so, the Designating Party must designate for protection only
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`those parts of material, documents, items, or oral or written communications that qualify - so
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`that other portions of the material, documents, items, or communications for which protection is
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`not warranted are not swept unjustifiably within the ambit of this Order.
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`If it comes to a Designating Party's attention that information or items that it designated
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`for protection do not qualify for protection at all or do not qualify for the level of protection
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`initially asserted, that Designating Party must promptly notify all other parties that it is
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`withdrawing the mistaken designation.
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`5.2 Manner and Timing of Designations. Except as otherwise provided in this Order
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`(see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or ordered,
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`Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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`designated before the material is disclosed or produced.
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`Designation in conformity with this Order requires:
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`(a) for information in documentary form (e.g., paper or electronic documents, but
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`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing
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`Party affix the legend "CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS'
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`EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" to each page that contains
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`Protected Material.
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`5
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`(b) for testimony given in deposition or other pretrial or trial proceedings that the
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`Designating Party identify on the record or up to 21 days afterwards if that period is properly
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`invoked, that the transcript shall be treated as "CONFIDENTIAL," "HIGHLY CONFIDENTIAL
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`-ATTORNEYS' EYES ONLY;" or "HIGHLY CONFIDENTIAL- SOURCE CODE."
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`Parties shall give the other parties notice if they reasonably expect a deposition or other
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`pretrial or trial proceeding to include Protected Material so that the other parties can ensure that
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`only authorized individuals who have signed the "Acknowledgment and Agreement to Be
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`Bound" (Exhibit A) are present at those proceedings. The use of a document as an exhibit at a
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`deposition or other pretrial or trial proceedings shall not in any way affect its designation as
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`"CONFIDENTIAL" or "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY," or
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`"HIGHLY CONFIDENTIAL - SOURCE CODE."
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`Transcripts containing Protected Material shall have an obvious legend on the title page
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`that the transcript contains Protected Material, and the title page shall be followed by a list of all
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`pages that have been designated as Protected Material and the level of protection being asserted
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`by the Designating Party. The Designating Party shall inform the court reporter of these
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`requirements. Any transcript that is prepared before the expiration of a 21-day period for
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`designation shall be treated during that period as if it had been designated "HIGHLY
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY" in its entirety. After the expiration of that
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`period or as of such earlier time that such transcript is designated, the .transcript shall be treated
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`only as actually designated.
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`( c) for information produced in some form other than documentarv and for any
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`other tangible items, that the Producing Party affix in a prominent place on the exterior -of the
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`container or containers in which the information or item is stored the legend "CONFIDENTIAL"
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`or
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`"HIGHLY CONFIDENTIAL
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`- ATTORNEYS' EYES ONLY" or
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`"HIGHLY
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`CONFIDENTIAL - SOURCE CODE." If only a portion or portions of the information or item
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`warrant protection, the Producing Party, to the· extent practicable, shall identify the protected
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`portion( s) and specify the level of protection being asserted.
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`6
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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 7 of 21 PageID #: 677
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`5.3
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`Inadvertent Failures to Designate. An inadvertent failure to designate qualified
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`information or items does not waive the Designating Party's right to secure protection under this
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`Order for such material. Upon correction of a designation, the Receiving Party must make all
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`reasonable efforts to assure that the material is treated in accordance with the provisions of this
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`Order.
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`6.
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`CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`6.1
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`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. Unless a prompt challenge to a Designating Party's confidentiality
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`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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`burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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`challenge a confidentiality designation by electing not to mount a challenge promptly after the
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`original designation is disclosed.
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`6.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution
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`process by providing written notice of each designation it is challenging and describing the basis
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`for each challenge. To avoid ambiguity as to whether a challenge has been made, the written
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`notice must recite that the challenge to confidentiality is being made in accordance with this
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`specific paragraph of the Protective Order. The parties shall attempt to resolve each chal~enge in
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`good faith and must begin the process by conferring directly (in voice to voice dialogue; other
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`forms of communication are not sufficient) within 7 days of the date of service of notice. In
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`conferring, .the Challenging Party must explain the basis for its belief that the confidentiality
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`designation was not proper and must give the Designating Party an opportunity to review the
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`designated material, to reconsider the circumstances, and, if no change in designation is offered,
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`to explain the basis for the chosen designation. A Challenging Party may proceed to the next
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`stage of the challenge process only if it has engaged in this meet and confer process first or
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`establishes that the Designating Party is unwilling to participate in the meet and confer process in
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`a timely manner.
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`7
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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without court
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`intervention, within 14 days of the initial notice of challenge or within 7 days of the parties
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`agreeing that the meet and confer process will not resolve their dispute, whichever is earlier the
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`Challenging Party shall contact
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`the Court's Case Manager
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`to schedule an
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`in-person
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`conference/argument to retain confidentiality. Unless otherwise ordered, by no later than forty(cid:173)
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`eight hours prior to the conference/argument, the Challenging Party shall file with the Court a letter,
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`not to exceed three pages, outlining the issues in dispute and its position on those issues. By no later
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`than twenty-four hours prior to the conference/argument, any party opposing the application for relief
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`may file a letter, not to exceed three pages, outlining that party's reasons for its opposition. Should
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`any document(s) be filed under seal, a courtesy copy of the sealed document(s) must be provided to
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`the Court and served on the Designating Party by email within one hour of e-filing the document(s).
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`Each such letter must be accompanied by a competent declaration affirming that the movant has
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`complied with the meet and confer requirements imposed in the preceding paragraph.
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`The burden of persuasion in any such challenge proceeding shall be on the Designating
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`Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
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`unnecessary expenses and burdens on other parties) may expose the Challenging Party to
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`sanctions. Unless the Designating Party has waived the confidentiality designation by failing to
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`file a letter to retain confidentiality as described above, all parties shall continue to afford the
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`material in question the level of protection to which it is entitled under the Producing Party's
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`designation until the Court rules on the challenge.
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`7.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`7 .1
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`Basic Principles. A Receiving Party may use Protected Material that is disclosed
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`or produced by another Party or by a Non-Party in connection with this case only for
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`prosecuting, defending, or attempting to settle this litigation. Such Protected Material may be
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`disclosed only to the categories of persons and under the conditions described in this Order.
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`When the litigation has been terminated, a Receiving Party must comply with the provisions of
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`section 15 below (FINAL DISPOSITION).
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`8
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`Protected Material must be stored and maintained by a Receiving Party at a location and
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`in a secure manner that ensures that access is limited to the persons authorized under this Order.
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`7.2
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`Disclosure of "CONFIDENTIAL" Information or Items. Unless otherwise
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`ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may
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`disclose any information or item designated "CONFIDENTIAL" only to:
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`(a) the Receiving Party's Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`(b) the officers, directors, and employees (including House Counsel) of the
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`Receiving Party to whom disclosure is reasonably necessary for this litigation and who have
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`signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A);
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`(c) Experts (as defined in this Order) of the Receiving Party to whom disclosure is
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`reasonably necessary for this litigation and who have signed the "Acknowledgment and
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`Agreement to Be Bound" (Exhibit A);
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`( d) the Court and its personnel;
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`( e) court reporters and their staff, professional jury or trial consultants including
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`mock jurors who have signed a confidentiality agreement, and Professional Vendors to whom
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`disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment
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`and Agreement to Be Bound" (Exhibit A);
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`(f) during their depositions, witnesses in the action to whom disclosure is
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`reasonably necessary, with the consent of the Designating Party or as ordered by the Court.
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`Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
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`Material must be separately bound by the court reporter and may not be disclosed to anyone
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`except as permitted under this Stipulated Protective Order;
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`(g) the author or recipient of a document containing the information or a
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`custodian or other person who otherwise possessed or knew the information.
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`9
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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 10 of 21 PageID #: 680
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`7.3 Disclosure of "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" and
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`"HIGHLY CONFIDENTIAL - SOURCE CODE" Information or Items. Unless otherwise
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`ordered by the Court or permitted in writing by the Designating Party, a Receiving Party may
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`disclose any information or item designated "HIGHLY CONFIDENTIAL - ATTORNEYS'
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`EYES ONLY" or "HIGHLY CONFIDENTIAL - SOURCE CODE" only to:
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`(a) the Receiving Party's Outside Counsel of Record in this action, as well as employees
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`of said Outside Counsel of Record to whom it is reasonably necessary to disclose the information
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`for this litigation;
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`(b) Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for this
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`litigation, (2) who have signed the "Acknowledgment and Agreement to Be Bound" (Exhibit A),
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`and (3) as to whom the procedures set forth in paragraph 7.4(a), below, have been followed;
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`( c) the Court and its personnel;
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`( d) court reporters and their staff, professional jury or trial consultants including mock
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`jurors who have signed a confidentiality agreement, and Professional Vendors to whom
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`disclosure is reasonably necessary for this litigation and who have signed the "Acknowledgment
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`and Agreement to Be Bound" (Exhibit A), except that mock jurors shall not be given access to
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`material designated "HIGHLY CONFIDENTIAL - SOURCE CODE"; and
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`( e) the author or recipient of a document containing the information or a custodian or
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`other person who otherwise possessed or knew the information.
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`7.4
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`Procedures
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`for Approving or Objecting
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`to Disclosure of "HIGHLY
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL- SOURCE
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`CODE" Information or Items to Experts.
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`(a) Unless otherwise ordered by the Court or agreed to in writing by the Designating
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`Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or
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`item that has been designated "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or
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`"HIGHLY CONFIDENTIAL- SOURCE CODE" pursuant to paragraph 7.3(b) first must make
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`a written request to the Designating Party that (1) identifies the general categories of "HIGHLY
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`10
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`CONFIDENTIAL-ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL- SOURCE
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`CODE" information that the Receiving Party seeks permission to disclose to the Expert, (2) sets
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`forth the full name of the Expert and the city and state of his or her primary residence, (3)
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`attaches a copy of the Expert's current resume, (4) identifies the Expert's current employer(s),
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`(5) identifies each person or entity from whom the Expert has received compensation or funding
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`for work in his or her areas of expertise or to whom the Expert has provided professional
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`services, including in connection with a litigation, at any time during the preceding five years
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`and the party to the litigation for whom such work was done, (6) identifies (by name and number
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`of the case, filing date, and location of court) any litigation in connection with which the Expert
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`has offered expert testimony, including through a declaration, report, or testimony at a deposition
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`or trial, during the preceding five years, and (7) identifies any patents or patent applications in
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`which the Expert is identified as an inventor or applicant, is involved in prosecuting or
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`maintaining, or has any pecuniary interest. With regard to the information sought through part
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`( 5) of this disclosure, if the Expert believes any of this information is subject to a confidentiality
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`obligation to a third party, then the Expert should provide whatever information the Expert
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`believes can be disclosed without violating any confidentiality agreements, and the Party seeking
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`to disclose to the Expert shall be available to meet and confer with the Designating Party
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`regarding any such engagement.
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`(b) A Party that makes a request and provides the information specified in the preceding
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`respective paragraphs may disclose the subject Protected Material to the identified Expert unless,
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`within 7 days of delivering the request, the Party receives a written objection from the
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`Designating Party. Any such objection must set forth in detail the grounds on which it is based.
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`(c) A Party that receives a timely written objection must meet and confer with the
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`Designating Party (through direct voice to voice dialogue) to try to resolve the matter by
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`agreement within 7 days of the written objection. If no agreement is reached, the Objecting
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`Party must contact the Court's Case Manager to schedule an in-person conference/argument. Unless
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`otherwise ordered, by no later than forty-eight hours prior to the conference/argument, the Objecting
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`11
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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 12 of 21 PageID #: 682
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`Party shall file with the Court a letter, not to exceed three pages, outlining the issues in dispute and
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`its position on those issues. By no later than twenty-four hours prior to the conference/argument, the
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`other party may file a letter, not to exceed three pages, outlining that party's reasons for its
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`opposition. Should any document(s) be filed under seal, a courtesy copy of the sealed document(s)
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`must be provided to the Court and the opposing Party via email within one hour of e-filing the
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`document(s).
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`In any such proceeding, the Party opposing disclosure to the Expert shall bear the burden
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`of proving that the risk of harm that the disclosure would entail (under the safeguards proposed)
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`outweighs the Receiving Party's need to disclose the Protected Material to its Expert.
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`8.
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`PROSECUTION BAR
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`Absent written consent from the Producing Party, any individual bound by this agreement
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`who receives access to "HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY" or
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`"HIGHLY CONFIDENTIAL - SOURCE CODE" information shall not be involved in the
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`prosecution of patents or patent applications relating to the subject matter of the patents-in-suit as
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`well as the subject matter of the Protected Information received, including without limitation the
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`patents asserted in this action and any patent or application claiming priority to or otherwise
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`related to the patents asserted in this action, before any foreign or domestic agency, including the
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`United States Patent and Trademark Office ("the Patent Office"). For purposes of this
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`paragraph, "prosecution" includes directly or indirectly drafting, amending, advising, or
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`otherwise affecting the scope or maintenance of patent claims. Prosecution includes, for
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`example, original prosecution, reissue, and reexamination and other post-grant proceedings. The
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`Parties expressly agree that the prosecution bar set forth herein shall be personal to any Party's
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`Outside Counsel, in-house attorneys, or their respective employed staff who reviews or otherwise
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`learns the content of HIGHLY CONFIDENTIAL - ATTORNEYS' EYES ONLY or HIGHLY
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`CONFIDENTIAL - SOURCE CODE information. It is expressly agreed that Outside Counsel
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`and their employed staff who work on these matters without reviewing or otherwise learning the
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`content of HIGHLY CONFIDENTIAL -
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`ATTORNEYS' EYES .ONLY or HIGHLY
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`12
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`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 13 of 21 PageID #: 683
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`CONFIDENTIAL -
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`SOURCE CODE material shall not be restricted from engagmg m
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`prosecution activity on other matters that fall within the prosecution bar. It is also expressly
`
`agreed that in-house attorneys and their employed staff who work on these matters without
`
`reviewing or otherwise learning the content of HIGHLY CONFIDENTIAL - ATTORNEYS'
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`EYES ONLY or HIGHLY CONFIDENTIAL -
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`SOURCE CODE information shall not be
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`restricted from engaging in prosecution activity on other matters that fall within the prosecution
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`bar.
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`Notwithstanding the foregoing, nothing herein shall prevent an attorney from representing a
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`party in a proceeding that challenges a patent-in-suit before a domestic or foreign agency
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`(including, but not limited to, a reissue protest, ex parte reexamination, inter partes
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`reexamination, post grant review, or inter partes review) unless the attorney is involved in
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`directly or indirectly drafting, amending, advising, or otherwise affecting the scope of patent
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`claims on behalf of a patent owner. This Prosecution Bar shall begin when access to "HIGHLY
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`CONFIDENTIAL-ATTORNEYS' EYES ONLY" or "HIGHLY CONFIDENTIAL-SOURCE
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`CODE" information is first received by the affected individual and shall end two (2) years after
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`fmal termination of this action.
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`9.
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`SOURCE CODE
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`(a)
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`To the extent production of source code becomes necessary in this case, a
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`Producing Party may designate source code as "HIGHLY CONFIDENTIAL - SOURCE CODE"
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`if it comprises extremely sensitive "Confidential Information or Items" representing computer
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`code and associated comments and revision histories, formulas, engineering specifications, or
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`schematics that defme or otherwise describe in detail the algorithms or structure of software or
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`hardware designs, disclosure of which to another Party or Non-Party would create a substantial
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`risk of serious harm that could not be avoided by less restrictive means.
`
`(b)
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`Protected Material designated as
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`·"HIGHLY CONFIDENTIAL
`
`-
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`SOURCE CODE" shall be subject to all of the protections afforded to "HIGHLY
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`CONFIDENTIAL - ATTORNEYS' EYES ONLY" information including the Prosecution Bar
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`13
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`

`
`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 14 of 21 PageID #: 684
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`set forth in Paragraph 8, and may be disclosed only to the individuals to whom "HIGHLY
`
`CONFIDENTIAL - ATTORNEYS' EYES ONLY" information may be disclosed, as set forth in
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`Paragraphs 7.3 and 7.4.
`
`(c)
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`Any source code produced in discovery shall be made available for
`
`inspection, in a format allowing it to be reasonably reviewed and searched, during normal
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`business hours (8:00 a.m. to 6:00 pm local time) or at other mutually agreeable times, at an office
`
`of the Producing Party's Counsel or another mutually agreed upon location. To the extent access
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`is necessary outside of normal business hours, the parties agree to cooperate in good faith and
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`make reasonable efforts to accommodate reasonable requests for access outside of normal
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`business hours. The computer containing source code will be made available upon reasonable
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`notice to the Producing Party, which shall not be less than 2 business days in advance of the
`
`· requested inspection. The source code shall be made available for inspection on two secured
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`computers in a secured room without Internet access or network access to other computers
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`("Source Code Computers"), and the Receiving Party shall not copy, remove, or otherwise
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`transfer any portion of the source code onto any recordable media or recordable device. Each
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`Source Code Computer will be accessible using a working keyboard, mouse, and two monitors.
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`The Producing Party shall install such tools or programs necessary to review, and search the code
`
`produced on the platform produced. At a minimum these software utilities must provide the
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`ability to (a) view, search, and line-number any source code file, (b) search for a given pattern of
`
`text through a number of files, ( c) compare two files and display their differences, and ( d)
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`compute the MD5 checksum of a file. The Receiving Party's Outside Counsel and/or experts
`
`may request, at the Receiving Party's expense,, that other commercially available licensed
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`software tools for viewing and searching source code be installed on the secured computer. The
`
`Producing Party shall provide to the Receiving Party a "HIGHLY CONFIDENTIAL - SOURCE
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`CODE" printout on non-copyable paper listing directory structure of the three highest directory
`
`levels of the source code provided on the Source Code Computers. The Producing Party shall
`
`also make available on the Source Code Computers an electronic, searchable PDF of the entire
`
`14
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`

`
`Case 1:16-cv-00116-RGA Document 36 Filed 07/11/16 Page 15 of 21 PageID #: 685
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`directory structure of the source code provided on the Source Code Computers. The searchable
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`PDF shall be bates numbered and contain line numbers for ease of reference. The Receiving
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`Party's Outside Counsel and/or experts shall be entitled to take notes relating to the source code
`
`but may not copy the source code into the notes. Though an expert may not copy lines of code
`
`into their notes, an expert's notes may include words from the code (e.g., definitions, function
`
`names, variable names, constants, string
`
`literals, and comments) and
`
`the expert's
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`analysis of the operation of the source code. Th