Case 1:16-cv-00290-MN Document 52 Filed 01/23/18 Page 1 of 27 PageID #: 1537
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 16-290-JFB-SRF
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`JURY TRIAL DEMANDED
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`)))))))))
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`GODO KAISHA IP BRIDGE 1,
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`Plaintiff,
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`v.
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`OMNIVISION TECHNOLOGIES, INC.,
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`Defendant.
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`PROTECTIVE ORDER
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`Plaintiff Godo Kaisha IP Bridge 1 (“IPB”) and Defendant OmniVision Technologies, Inc.
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`(“OmniVision”) anticipate that documents, testimony, or information containing or reflecting
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`confidential, proprietary, trade secret, and/or commercially sensitive information are likely to be
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`disclosed or produced during the course of discovery, initial disclosures, and supplemental
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`disclosures in this case and request that the Court enter this Order setting forth the conditions for
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`treating, obtaining, and using such information.
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`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good
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`cause for the following Stipulated Protective Order Regarding the Disclosure and Use of
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`Discovery Materials (“Order” or “Protective Order”).
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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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`Protective Order. The parties acknowledge that this Order does not confer blanket protections on
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`all disclosures or responses to discovery and that the protection it affords from public disclosure
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`and use extends only to the limited information or items that are entitled to confidential treatment
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`under the applicable legal principles. The parties further acknowledge, as set forth in paragraph
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`13.4 below, that D. Del. LR 5.1.3 sets forth the procedures that must be followed and the
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`standards that will be applied regarding under-seal filings.
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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: 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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`2.4
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`Designating Party: 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,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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`SOURCE 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 other things,
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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 to
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`the litigation who (1) has been retained by a Party or its counsel to serve as an expert witness or
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`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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`2
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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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`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 – SOURCE CODE” Information or Items:
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`extremely sensitive “Confidential Information or Items” representing computer code, physical
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`design files and associated comments and revision histories, formulas, engineering
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`specifications, recipes, run sheets, or schematics that define or otherwise describe in detail the
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`algorithms or structure of software or hardware designs, disclosure of which to another Party or
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`Non-Party would create a substantial risk of serious harm that could not be avoided by less
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`restrictive means. Physical design files are computer files or documents that show the physical
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`arrangement of the components of an integrated circuit, also called the circuit layout, including
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`GDS (Graphic Database System), GDSII stream format, DEF (Design Exchange Format), LEF
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`(Library Exchange Format), and any other design layout files. Materials designated as “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” may include physical design files but may not include
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`circuit schematic files.
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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, association, or other legal
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`entity not named as a Party to this action.
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`3
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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 affiliated with a law firm which has appeared on behalf of
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`that party, and includes support staff.
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`2.12 Party: 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 support services
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`(e.g., photocopying, videotaping, 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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`2.15 Protected Material: any Disclosure or Discovery Material that is designated as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or as
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`“HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`2.16 Receiving Party: a Party that receives Disclosure 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 Protective Order cover not only Protected Material (as
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`defined above), but also (1) any information copied or extracted from Protected Material; (2) all
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`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 Stipulated Protective Order do not cover the
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`4
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`following information: (a) any information that is in the public domain at the time of disclosure
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`to a Receiving Party or becomes part of the public domain after its disclosure to a Receiving
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`Party as a result of publication not involving a violation of this Order, including becoming part
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`of the public record through trial or otherwise; and (b) any information known to the Receiving
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`Party prior to the disclosure or obtained by the Receiving Party after the disclosure from a source
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`who obtained the information lawfully and under no obligation of confidentiality to the
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`Designating Party. Any use of Protected Material at trial shall be governed by a separate
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`agreement or order. Notwithstanding the restrictions in this Protective Order, Outside Counsel
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`shall not be precluded from providing legal advice to its client based on information learned
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`from Protective Information.
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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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`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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`5
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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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`Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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`shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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`unnecessarily encumber or retard the case development process or to impose unnecessary
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`expenses and burdens on other parties) expose the Designating Party to sanctions.
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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)
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`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,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page of the
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`document.
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`A Party or Non-Party that makes original documents or materials available for inspection
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`need not designate them for protection until after the inspecting Party has indicated which
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`6
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`material it would like copied and produced. During the inspection and before the designation, all
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`of the material made available for inspection shall be deemed “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the documents it wants
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`copied and produced, the Producing Party must determine which documents, or portions thereof,
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`qualify for protection under this Order. Then, before producing the specified documents, the
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`Producing Party must affix the appropriate legend (“CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE”) to each page of the document.
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`(b)
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`for testimony given in deposition or in other pretrial or trial proceedings, that the
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`Designating Party identify on the record, before the close of the deposition, hearing, or other
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`proceeding, all protected testimony and specify the level of protection being asserted. When it is
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`impractical to identify separately each portion of testimony that is entitled to protection and it
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`appears that substantial portions of the testimony may qualify for protection, the Designating
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`Party may invoke on the record (before the deposition, hearing, or other proceeding is
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`concluded) a right to have up to 30 days to identify the specific portions of the testimony as to
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`which protection is sought and to specify the level of protection being asserted. Only those
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`portions of the testimony that are appropriately designated for protection within the 30 days shall
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`be covered by the provisions of this Stipulated Protective Order. Alternatively, a Designating
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`Party may specify, at the deposition or up to 30 days afterwards if that period is properly
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`invoked, that the entire transcript shall be treated as “CONFIDENTIAL” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE.”
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`7
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`The use of a document as an exhibit at a deposition shall not in any way affect its
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`designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY,” or “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 (including line numbers as appropriate) that have been designated as Protected Material
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`and the level of protection being asserted by the Designating Party. The Designating Party shall
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`inform the Court reporter of these requirements. Any transcript that is prepared before the
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`expiration of a 30-day period for designation shall be treated during that period as if it had been
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`designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless
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`otherwise agreed. After the expiration of that period, the transcript shall be treated only as
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`actually designated.
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`(c)
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`for information produced in some form other than documentary and for any other
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`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
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
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`“HIGHLY CONFIDENTIAL – SOURCE CODE”. If only a portion or portions of the
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`information or item warrant protection, the Producing Party, to the extent practicable, shall
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`identify the protected portion(s) and specify the level of protection being asserted.
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`(d)
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`for discovery responses (e.g., Interrogatory responses) a Designating Party shall
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`clearly designate those responses containing “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`8
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`5.3
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`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
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`designate qualified information or items does not, standing alone, waive the Designating Party’s
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`right to secure protection under this Order for such material. Upon timely correction of a
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`designation, the Receiving Party must make reasonable efforts to assure that the material is
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`treated in accordance with the provisions of this 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 challenge 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 14 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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`6.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without court
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`intervention, the Challenging Party may initiate the Paragraph 2.j. procedure for Discovery
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`Matters (Scheduling Order D.I. 37 at 5–6) and will be the party seeking relief. The burden of
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`persuasion in any such challenge proceeding shall be on the Designating Party. Frivolous
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`challenges and those made for an improper purpose (e.g., to harass or impose unnecessary
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`expenses and burdens on other parties) may expose the Challenging Party to sanctions. All
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`parties shall continue to afford the material in question the level of protection to which it is
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`entitled under the Producing Party’s 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 14 below (FINAL DISPOSITION).
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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 manner1 that ensures that access is limited to the persons authorized under this Order.
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`1 It may be appropriate under certain circumstances to require the Receiving Party to store any
`electronic Protected Material in password-protected form.
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`10
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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)
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`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)
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`the officers, directors, and employees (including House Counsel) of the Receiving
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`Party to whom disclosure is reasonably necessary for this litigation and who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(c)
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`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)
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`(e)
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`the Court and its personnel;
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`court reporters and their staff, professional jury or trial consultants,2 mock jurors
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`and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
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`(f)
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`during their depositions, witnesses, and attorneys for witnesses, in the action to
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`whom disclosure is reasonably necessary and who have signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit A), unless otherwise agreed by the Designating Party, or
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`unless the document shows a witness is the recipient of the document, or ordered by the Court.
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`Pages of transcribed deposition testimony or exhibits to depositions that reveal Protected
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`2 The parties may wish to allow disclosure of information not only to professional jury or trial
`consultants, but also to mock jurors, to further trial preparation. In that situation, the parties may
`wish to draft a simplified, precisely tailored Undertaking for mock jurors to sign.
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`11
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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 Protective Order.
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`(g)
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`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; and
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`(h)
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`any mediator or settlement officer, and their supporting personnel, mutually
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`agreed upon by any of the parties engaged in settlement discussions, and who have signed the
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`“Acknowledgment and Agreement to Be Bound” that is attached hereto as Exhibit A.
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`7.3
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`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)
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`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;
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`(b)
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`Experts of the Receiving Party (1) to whom disclosure is reasonably necessary for
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`this litigation, (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit
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`A), and (3) as to whom the procedures set forth in paragraph 7.4(a), below, have been followed;
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`(c)
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`(d)
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`the Court and its personnel;
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`court reporters and their staff, professional jury or trial consultants, mock jurors,
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`and Professional Vendors to whom disclosure is reasonably necessary for this litigation and who
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`have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); 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 for Approving or Objecting to Disclosure of “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” Information or Items to Experts.
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`(a)
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`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 designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 7.3(b) first must make a written
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`request to the Designating Party that (1) identifies the general categories of “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” information that the Receiving Party seeks permission to disclose to the
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`Expert, (2) sets forth the full name of the Expert and the city and state of his or her primary
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`residence, (3) attaches a copy of the Expert’s current resume or curriculum vitae, (4) identifies
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`the Expert’s current employer(s), (5) identifies each person or entity from whom the Expert has
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`received compensation or funding for work in his or her areas of expertise or to whom the expert
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`has provided professional services, including in connection with a litigation, at any time during
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`the preceding five years,3 (6) identifies (by name and number of the case, filing date, and
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`location of court) any litigation in connection with which the Expert has offered expert
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`testimony, including through a declaration, report, or testimony at a deposition or trial, during the
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`preceding five years, and (7) identifies all patents and pending patent applications by the Expert.
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`3 If the Expert believes any of this information is subject to a confidentiality obligation to a third-
`party, then the Expert should provide whatever information the Expert believes can be disclosed
`without violating any confidentiality agreements, and the Party seeking to disclose to the Expert
`shall be available to meet and confer with the Designating Party regarding any such engagement.
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`If the Expert files any patent application during this litigation, the Party disclosing the Expert
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`must disclose it within two weeks of learning of its filing.
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`(b)
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`A Party that makes a request and provides the information specified in the
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`preceding respective paragraphs may disclose the subject Protected Material to the identified
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`Expert unless, within 14 days of delivering the request, the Party receives a written objection
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`from the Designating Party. Any such objection must set forth in detail the grounds on which it is
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`based.
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`(c)
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`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 seven days of the written objection. If no agreement is reached, the Party
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`seeking to make the disclosure to the Expert may file a motion seeking permission from the
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`Court to do so. Any such motion must describe the circumstances with specificity, set forth in
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`detail the reasons why the disclosure to the Expert is reasonably necessary, assess the risk of
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`harm that the disclosure would entail, and suggest any additional means that could be used to
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`reduce that risk. In addition, any such motion must be accompanied by a competent declaration
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`describing the parties’ efforts to resolve the matter by agreement (i.e., the extent and the content
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`of the meet and confer discussions) and setting forth the reasons advanced by the Designating
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`Party for its refusal to approve the disclosure. In any such proceeding, the Party opposing
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`disclosure to the Expert shall bear the burden of proving that the risk of harm that the disclosure
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`would entail (under the safeguards proposed) outweighs the Receiving Party’s need to disclose
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`the Protected Material to its Expert.
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`14
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`7.5
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`PROSECUTION BAR
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`Absent written consent from the Producing Party, any of Plaintiff’s Outside Counsel,
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`experts, officers, directors, or employees (including House Counsel) who receive access to
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL
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`– SOURCE CODE” information shall not be involved in the prosecution of patents or patent
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`applications, including the patents asserted in this action and any patent or application claiming
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`priority to or otherwise related to the patents asserted in this action, to the extent the prosecution
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`relates to backside-illumination (“BSI”) image sensors, before any foreign or domestic agency,
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`including the United States Patent and Trademark Office (“the Patent Office”). For clarification,
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`the scope of this prosecution bar is limited to BSI image sensors. For purposes of this paragraph,
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`“prosecution” includes directly or indirectly drafting, amending, advising, or otherwise affecting
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`the scope or maintenance of patent claims. To avoid any doubt, these prohibitions are not
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`intended to and shall not preclude any Party’s Outside Counsel of Record from participating in
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`or advising on any reexamination, inter partes review, or post-grant review with respect to any
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`patents in which any Party or its Affiliates have any interest. This Prosecution Bar shall begin
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`when access to “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” information is first received by the affected individual
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`and shall end one (1) year after final disposition of this action, as defined in paragraph 4.
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`8.
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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 or includes confidential, proprietary or trade secret source code.
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`(b)
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`Protected Material designated as “HIGHLY CONFIDENTIAL – SOURCE
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`CODE” shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” information, including the Prosecution Bar set forth in Paragraph
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`7.5, and may be disclosed only to the individuals to whom “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’EYES ONLY” information may be disclosed, as set forth in Paragraphs 7.3 and
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`7.4
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`(c)
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`Any source code produced in discovery shall be made available for inspection, in
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`its native format (e.g., GDS files) so that can be reasonably reviewed and searched, during
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`normal business hours or at other mutually agreeable times, at an office of the Producing Party’s
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`counsel or another mutually agreed upon location. Computer source code (such as, but not
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`limited to Java and C++ code) will be made available for inspection in its native format. The
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`source code shall be made available for inspection on a secured computer in a secured room
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`without Internet access or network access to other computers, and the Receiving Party shall not
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`copy, remove, or otherwise transfer any portion of the source code onto any recordable media or
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`recordable device. No electronic devices, including but not limited to, laptops, USB drives,
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`floppy drives, cellular telephones, cameras, personal digital assistants, and voice recorders, are
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`permitted in the secured room. The Receiving Party may take notes during inspection, but may
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`not copy the source code into the notes. The Producing Party shall install tools that are sufficient
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`for viewing and searching the code produced, on the platform produced. The parties may further
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`confer on installing additional tools for viewing and searching the code produced. The Receiving
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`Party’s outside counsel and/or experts may also request that additional reasonable free,
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`Case 1:16-cv-00290-MN Document 52 Filed 01/23/18 Page 17 of 27 PageID #: 1553
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`shareware, or commercially available4 software tools for viewing and searching Source Code be
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`installed on the secured computer. The Producing Party may visually monitor the activities of the
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`Receiving Party’s representatives during any source code review, but only to ensure that there is
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`no unauthorized recording, copying, or transmission of the source code.
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`(d)
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`The Receiving Party shall provide at least seven (7) days’ notice to the Producing
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`Party prior to any inspection of source code. The Receiving Party shall have a maximum of 80
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`hours over no more than 15 days, which do not have to be consecutive, to complete the review.
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`No Source Code review shall occur after close of discovery unless by agreement of the
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`Producing Party. No more than a total of 10 individuals identified by the Receiving Party shall
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`have access to the secure room. Immediately prior to each grant of access to the secure room or
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`the source code, each authorized person shall provide proper identification for the Producing
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`Party or the Producing Party’s counsel to verify identity. Proper identification requires showing,
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`at a minimum, a photo identification card sanctioned by the government of any State of the
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`United States or by the nation state of the authorized person’s current citizenship. Access to the
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`secure room or the source code may be denied, at the discretion of the Producing Party, to any
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`individual who fails to provide prope