i !
`f
`l
`i
`
`I
`
`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 1 of 36 PageID #: 2508
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`)
`)
`)
`)
`) c.A. No. 16-453 (RGA)
`)
`)
`)
`)
`~~~~~~~~D_e_fe_n_d_an_t_. ~~)
`ACCELERATION BAY LLC,
`)
`)
`)
`)
`) C.A. No. 16-454 (RGA)
`)
`)
`)
`)
`)
`)
`)
`)
`) C.A. No. 16-455 (RGA)
`)
`)
`)
`)
`)
`)
`)
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`~~~~~~~~~~~~~~
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE
`SOFTWARE,) INC., ROCKSTAR
`GAMES, INC. and 2K SPORTS, INC.,
`
`Defendant.
`
`~PROTECTIVE ORDER GOVERNING THE
`DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS
`
`To expedite the flow of discovery material; to facilitate the prompt resolution of disputes
`
`over confidentiality of discovery materials, to adequately protect information the parties are
`
`entitled to keep confidential, to ensure that only materials the parties are entitled to keep
`
`confidential are subject to such treatment, and to ensure that the parties are permitted reasonably
`
`

`

`I
`I
`I
`l
`t
`
`~
`
`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 2 of 36 PageID #: 2509
`
`necessary uses of such materials in preparation for and in the conduct of trial, it is hereby
`
`ORDERED THAT:
`
`1.
`
`DEFINITIONS. The terms defined in this Section 1 and parenthetically elsewhere
`
`shall, throughout this Order, have the meanings provided. Defined terms may be used in the
`
`singular or plural.
`
`1.1
`
`The "Action" means the above-captioned litigations.
`
`1.2
`
`"Party" means a party to the Action, including all of its officers, directors,
`
`employees, consultants, retained experts, and outside counsel (and their support staff).
`
`1.3
`
`"Material" means all information, documents, testimony, and things
`
`produced, served or otherwise provided in this action by any Party or by any non-party.
`
`1.4
`
`"Designated Material" means any Material
`
`that
`
`is designated
`
`"CONFIDENTIAL",
`
`"CONFIDENTIAL--
`
`OUTSIDE COUNSEL ONLY",
`
`and/or
`
`"RESTRICTED CONFIDENTIAL - SOURCE CODE" under this Order. Designated Material
`
`·shall not include advertising or other materials that have been actually published or publicly
`
`disseminated.
`
`1.5
`
`"Designating Party" means a Party or non-party that designates any
`
`Material in productions, in disclosures, or in responses to discovery as "CONFIDENTIAL",
`
`"CONFIDENTIAL-- OUTSIDE COUNSEL ONLY", and/or "RESTRICTED CONFIDENTIAL
`
`- SOURCE CODE."
`
`1.6
`
`"Producing Party" means any Party or non-party that discloses or produces
`
`Material in this Action.
`
`1. 7
`
`"Receiving Party" means any Party receiving production or disclosure of
`
`Material in this Action.
`
`2
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 3 of 36 PageID #: 2510
`
`1.8
`
`"Confidential Material" means information, documents, and things the
`
`Designating Party believes in good faith constitutes trade secret or other confidential research,
`
`development, or commercial information that is maintained in confidence by the Designating Party
`
`and not generally known to others.
`
`1.9
`
`"Confidential -- Outside Counsel Only Material" means Confidential
`
`Material that the Designating Party believes in good faith has significant competitive value such
`
`that unrestricted disclosure to others would create a substantial risk of serious injury.
`
`1.10
`
`"Restricted Confidential - Source Code Material" means extremely
`
`sensitive "Confidential Material" representing computer code and associated comments and
`
`revision histories, formulas, engineering specifications, or schematics that define or otherwise
`
`describe in detail the algorithms or structure of software or hardware designs, disclosure of which
`
`to another Party or Non-Party would create a substantial risk of serious harm that could not be
`
`avoided by less restrictive means.
`
`1.11
`
`"Counsel of Record" means (i) outside counsel who has entered an
`
`appearance as counsel for a Party and has not subsequently withdrawn, (ii) partners, principals,
`
`counsel, associates, employees and contract attorneys of such outside counsel to whom it is
`
`reasonably necessary to disclose the information for this Action, including supporting personnel
`
`employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks and
`
`shorthand reporters, and/or (iii) independent legal translators retained to translate in connection
`
`with this Action, or independent shorthand reporters retained to record and transcribe testimony in
`
`connection with this Action.
`
`1.12
`
`"Outside Consultant" means any person with specialized knowledge or
`
`experience in a matter pertinent to this Action who has been retained by Counsel of Record to
`
`3
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 4 of 36 PageID #: 2511
`
`serve as an expert witness, or as a consultant in this Action, and who is not a current employee of
`
`a Party or of a competitor of a Party and who, at the time of retention, is not anticipated to become
`
`an employee of a Party or of a competitor of a Party.
`
`1.13
`
`"Professional Vendors" means any persons or entities that provide litigation
`
`support services and their employees and subcontractors who have been retained or directed by
`
`Counsel of Record in this action, and who are not current employees of a Party or of a competitor
`
`of a Party and who, at the time of retention, are not anticipated to become employees of a Party or
`
`of a competitor of a Party. Litigation support services include but are not limited to: photocopying;
`
`videotaping;
`
`translating; designing and preparing exhibits, graphics, or demonstrations;
`
`organizing, storing, retrieving data in any form or medium; etc. Professional Vendors include ESI
`
`vendors and professional jury or trial consultants retained in connection with this litigation.
`
`Professional Vendors do not include consultants who fall within the definition of Outside
`
`Consultant.
`
`1.14
`
`"Termination" means the dismissal of the Action (whether through
`
`settlement or otherwise), or the entry of final judgment and expiration of all periods to appeal or
`
`to seek judicial review of such judgment or dismissal.
`
`1.15
`
`"Affiliate" shall mean, with respect to any Party, any other entity
`
`controlling, controlled by, or under common control with that Party. As used in this definition, the
`
`term "control" means the ownership of more than fifty percent ( 50%) of the ownership or equity
`
`interests of such entity.
`
`1.16
`
`"Patents-in-Suit" means U.S. Patent Nos. 6,701,344 (the "344 Patent"),
`
`6,714,966 (the "966 Patent"), 6,732,147 (the "147 Patent"), 6,829,634 (the "634 Patent"),
`
`6,910,069 (the "069 Patent"), 6,920,497 (the "497 Patent"), and any other patent asserted in this
`
`4
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 5 of 36 PageID #: 2512
`
`Action, as well as any related patents, patent applications, provisional patent applications,
`
`continuations, and/or divisionals.
`
`2.
`
`SCOPE
`
`2.1
`
`The protections conferred by this Order cover not only Designated Material
`
`(as defined above), but also any information copied or extracted therefrom, as well as all copies,
`
`excerpts, summaries, or compilations thereof. Nothing herein shall alter or change in any way the
`
`discovery provisions of the Federal Rules of Civil Procedure, the Local Rules of this Court, or the
`
`Court's deadlines provided in any scheduling order or discovery order issued by the Court.
`
`Identification of any individual pursuant to this Order does not make that individual available for
`
`deposition, or any other form of discovery outside of the restrictions and procedures of the Federal
`
`Rules of Civil Procedure, the Local Rules of this Court, and the Court's deadlines provided in any
`
`scheduling order or discovery order issued by the Court.
`
`2.2
`
`Nothing in this Protective Order shall prevent or restrict a Producing Party's
`
`own disclosure or use of its own Designated Material for any purpose, and nothing in this Order
`
`shall preclude any Producing Party from showing its Designated Material to an individual who
`
`prepared the Designated Material.
`
`2.3
`
`Nothing in this Order shall be construed to prejudice any Party's right to
`
`use any Designated Material in court or in any court filing with the consent of the Producing Party
`
`or by order of the Court.
`
`2.4
`
`This Order does not confer any right to any Defendant's in-house attorney
`
`to access the Designated Material of any other Defendant. Furthermore, absent a specific
`
`agreement, no Defendant is required to produce its Designated Material to any other Defendant or
`
`Defendant's counsel, but nothing in this Order shall preclude such production. Notwithstanding
`
`5
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 6 of 36 PageID #: 2513
`
`the provisions ohhis Protective Order, any Designated Material designated by a Defendant shall
`
`not be disclosed by the Plaintiff to any other Defendant or Defendant's counsel (except in Court
`
`filings otherwise complying with this Order) absent explicit written agreement from the producing
`
`Defendant, but nothing herein shall prohibit Counsel of Record for any party from access to
`
`complete Court filings or oral argument in Court if necessary.
`
`3.
`
`MATERIAL DESIGNATED "CONFIDENTIAL." Any Designating Party may
`
`designate as "CONFIDENTIAL" any Material that the party believes in good faith constitutes
`
`Confidential Material. Unless otherwise ordered by the Court or permitted in writing by the
`
`Designating Party, a Receiving Party may disclose any Material designated "CONFIDENTIAL"
`
`only to:
`
`(a)
`
`Persons who appear on the face of the Designated Material as an author,
`
`addressee, or recipient thereof;
`
`(b)
`
`Up to two (2) in-house employees of a Receiving Party (including a parent
`
`or affiliate of a Receiving Party), and necessary secretarial staff, who are responsible for providing
`
`oversight of or assistance in the litigation, provided that any such employee or staff has signed the
`
`"Acknowledgement and Agreement To Be Bound By Protective Order" attached hereto as Exhibit
`
`A, and provided an executed copy to the Producing Party prior to receiving any Designated
`
`Material;
`
`( c)
`
`( d)
`
`Counsel of Record for the Designating Party or the Receiving Party;
`
`Outside Consultants of the Receiving Party (including necessary employees
`
`of the Outside Consultants) provided that disclosure is only to the extent necessary to perform such
`
`work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of
`
`this Order by signing a copy of the "Acknowledgement and Agreement To Be Bound By Protective
`
`6
`
`i
`
`I
`I
`I
`I
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 7 of 36 PageID #: 2514
`
`Order" attached hereto as Exhibit A, and the "Certification Of Consultant" attached hereto as
`
`Exhibit B, with the provisions of Section 6 being complied with prior to receiving any Designated
`
`Material; (b) such expert or consultant is not a current officer, director, or employee of a Party or
`
`of a competitor of a Party, nor anticipated at the time of retention to become an officer, director or
`
`employee of a Party or of a competitor of a Party; ( c) such expert or consultant accesses the
`
`materials in the United States only, and does not transport them to or access them from any foreign
`
`jurisdiction; and (d) no unresolved objections to such disclosure exist after proper notice has been
`
`given to all Parties as set forth in Paragraph 6 below;
`
`( e) Witnesses at deposition and/or trial consistent with the provisions of Section
`
`7 below, provided that such witnesses may not retain copies of Designated Material unless
`
`permitted by other provisions of this Order;
`
`( f)
`
`The Court and its personnel, any technical advisor that the Court may
`
`appoint, and any Jury impaneled in the Action;
`
`(g)
`
`Any designated arbitrator or mediator who is assigned to hear this matter,
`
`or who has been selected by the Parties, and his or her staff;
`
`(h)
`
`Court reporters and videographers employed in connection with this case;
`
`(i)
`
`Professional Vendors to whom disclosure is reasonably necessary for this
`
`Action;
`
`(j)
`
`Jury consultants, trial consultants, or mock jurors selected by counsel in
`
`preparation for trial, provided they have signed the "Acknowledgement and Agreement To Be
`
`Bound By Protective Order" attached hereto as Exhibit A; and
`
`(k)
`
`Any other person authorized by written agreement of the Producing Party
`
`and the Receiving Party or by order of the Court.
`
`7
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 8 of 36 PageID #: 2515
`
`4.
`
`MATERIAL DESIGNATED "CONFIDENTIAL -- OUTSIDE COUNSEL
`
`ONLY." Any Designating Party may designate as "CONFIDENTIAL -- OUTSIDE COUNSEL
`
`ONLY" any Material that the party believes in good faith constitutes Confidential -- Outside
`
`Counsel Only Material. Unless otherwise ordered by the Court or permitted in writing by the
`
`Designating Party, Material designated as "CONFIDENTIAL-- OUTSIDE COUNSEL ONLY"
`
`shall be treated as Material designated as "CONFIDENTIAL" with the further restriction that it
`
`shall not be disclosed to any person identified in Section 3(b) above.
`
`5.
`
`MATERIAL DESIGNATED "RESTRICTED CONFIDENTIAL - SOURCE
`
`CODE." Any Designating Party may designate as "RESTRICTED CONFIDENTIAL- SOURCE
`
`CODE" any Material that the party believes in good faith constitutes Restricted Confidential -
`
`Source Code Material. Unless otherwise ordered by the Court or permitted in writing by the
`
`Designating Party, Material designated as "RESTRICTED CONFIDENTIAL- SOURCE CODE"
`
`shall be treated as Material designated as "CONFIDENTIAL-- OUTSIDE COUNSEL ONLY"
`
`with the further restriction that (i) it shall not be disclosed to any person identified in Sections 3(g),
`
`3(i) or 3U) above; (ii) shall be disclosed to no more than three persons identified in Section 3(d)
`
`above; and (iii) such Material is subject to the provisions of Section 8 of this Order.
`
`6.
`
`DISCLOSURE TO OUTSIDE CONSULTANTS. No disclosure of Designated
`
`Material to Outside Consultants shall occur until the notice and resolution of objection procedures
`
`of this Section are followed.
`
`6.1
`
`Notice. If a Receiving Party wishes to disclose another Party's Designated
`
`Material to any Outside Consultant, such Receiving Party must provide notice to counsel for the
`
`Designating Party, which notice shall include: (a) the individual's name and business title;
`
`(b) business address; ( c) business or profession; ( d) the individual's CV; ( e) any previous or current
`
`8
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 9 of 36 PageID #: 2516
`
`relationship (personal or professional) with any of the Parties or any entity that the either Receiving
`
`Party or the Outside Consultant has reason to believe is an Affiliate of any of the Parties; (f) a list
`
`of other cases in which the individual has testified (at trial or by deposition) within the last four
`
`years; (g) a list of all companies with which the individual has consulted or by which the individual
`
`has been employed within the last four years; and (h) a signed copy of the "Acknowledgement and
`
`Agreement To Be Bound By Protective Order" attached as Exhibit A, and the "Certification Of
`
`Consultant" attached hereto as Exhibit B.
`
`6.2
`
`Objections. The Designating Party shall have seven (7) business days from
`
`receipt of the notice specified in Section 6.1 to object in writing to such disclosure (plus three (3)
`
`extra days if notice is given other than by hand delivery, e-mail transmission or facsimile
`
`transmission). Any such objection must set forth in detail the grounds on which it is based. After
`
`the expiration of the 7-day (plus 3-days, if appropriate) period, if no objection has been asserted,
`
`then Designated Material may be disclosed to the Outside Consultant pursuant to the terms of this
`
`Order. However, if the Designating Party objects within the 7-day (plus 3-days, if appropriate)
`
`period, the Receiving Party may not disclose Designated Material to the challenged individual
`
`absent resolution of the dispute or Court Order. In the event the Designating Party makes a timely
`
`objection, the parties shall promptly meet and confer to try to resolve the matter by agreement. If
`
`the parties cannot reach an agreement, the Objecting Party may, within five (5) business days
`
`following the meet and confer, file a motion for a protective order preventing disclosure of
`
`Designated Material to the Outside Consultant, or for other appropriate relief. If the Objecting
`
`Party files a timely motion for a protective order, Designated Material shall not be disclosed to the
`
`challenged individual until and unless a final ruling allowing such disclosure is made by this Court,
`
`or by the consent of the Objecting Party, whichever occurs first. If the Objecting Party fails to file
`
`9
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 10 of 36 PageID #: 2517
`
`a motion for a protective order within the prescribed period the Designated Material may thereafter
`
`be disclosed to such individual.
`
`7.
`
`USE AT DEPOSITION
`
`7 .1
`
`A present director, officer, agent, employee, designated Rule 30(b )( 6)
`
`witness, and/or Outside Consultant of a Producing Party may be shown at deposition and examined
`
`on all Designated Material that has been produced by that Party;
`
`7.2
`
`A former director, officer, agent and/or employee of a Producing Party may
`
`be shown at deposition and examined on all Designated Material that has been produced by that
`
`Party and that the Receiving Party's Outside Counsel reasonably and in good faith believes to have
`
`been received by the witness previously or that refers to matters within the witness's personal
`
`knowledge pertaining to the period or periods of his or her employment, engagement, or
`
`relationship with the Producing Party;
`
`7.3
`
`Non-parties may be shown at deposition and examined on any document
`
`containing Designated Material of a Producing Party that appears on its face, or which the
`
`Receiving Party's Outside Counsel reasonably and in good faith believes based on other
`
`documents or testimony, to have been received from or communicated to the non-party. Any
`
`person other than the witness, his or her attorney( s ), and any person qualified to receive Designated
`
`Material under this Order, shall be excluded from the portion of the examination concerning such
`
`information, unless the Producing Party consents to persons other than qualified recipients being
`
`present at the examination. If the witness is represented by an attorney who is not qualified under
`
`this Order to receive such information, then prior to the examination, the attorney shall be
`
`requested to sign the "Acknowledgement and Agreement To Be Bound By Protective Order"
`
`attached as Exhibit A. In the event that such attorney declines to sign the Acknowledgement and
`
`10
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 11 of 36 PageID #: 2518
`
`Agreement To Be Bound By Protective Order prior to the examination, the parties, by their
`
`attorneys, shall jointly seek a protective order from the Court prohibiting such attorney from
`
`disclosing such Designated Material.
`
`7.4
`
`A witness who previously had access
`
`to a document designated
`
`"CONFIDENTIAL," "CONFIDENTIAL-- OUTSIDE COUNSEL ONLY," or "RESTRICTED
`
`CONFIDENTIAL - SOURCE CODE" but who is not under a present non-disclosure agreement
`
`with the Producing Party that covers that document, may be shown the document at deposition if
`
`the witness is advised on the record of the existence of the Protective Order and that the protective
`
`order requires the parties to keep confidential any questions, testimony or documents that are
`
`designated as "CONFIDENTIAL," "CONFIDENTIAL-- OUTSIDE COUNSEL ONLY," or
`
`"RESTRICTED CONFIDENTIAL- SOURCE CODE." The witnesses may not copy, take notes
`
`on or retain copies of any Designated Material used or reviewed at the deposition. The witness
`
`may not take out of the deposition room any exhibit that is marked "CONFIDENTIAL",
`
`"CONFIDENTIAL-- OUTSIDE COUNSEL ONLY" or "RESTRICTED CONFIDENTIAL -
`
`SOURCE CODE". The Producing Party of any Designated Material used at the deposition may
`
`also require that the transcript and exhibits not be copied by a witness who is not subject to this
`
`Order or his counsel who is not subject to this Order, that no notes may be made of the transcript
`
`or the exhibits, and that the transcript and exhibits may only be reviewed by the witness in the
`
`offices of one of the counsel representing a party in this case (or another firm acting for one of the
`
`counsel representing a party in this case and under the supervision of one of the lawyers who is
`
`bound by the terms of this Order).
`
`7 .5
`
`Except as may be otherwise ordered by the Court, and without limitation as
`
`to any of the other provisions of this section, any person may be examined as a witness by
`
`11
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 12 of 36 PageID #: 2519
`
`deposition, and may testify concerning all Designated Material of which such person has prior
`
`knowledge.
`
`7.6
`
`Notwithstanding any sub-Section of this Section 7, no copies of Designated
`
`Material may be provided to any deponent or trial witness other than for purposes of the
`
`examination without the written consent of the Producing Party.
`
`8.
`
`PRODUCTION OF SOUBCE CODE. To the extent any Party's Source Code is
`
`relevant and discoverable in this Action, this Section shall govern the production of Source Code
`
`in this Action. The provision of this section shall also be available for the production of Source
`
`Code by non-parties, however, such production may be governed by a supplemental confidentiality
`
`order negotiated between the Receiving Party and the non-party.
`
`8.1
`
`Source Code designated as "RESTRICTED CONFIDENTIAL - SOURCE
`
`CODE" shall be made available for the Receiving Party's inspection.
`
`(a)
`
`Source Code designated as "RESTRICTED CONFIDENTIAL - SOURCE
`
`CODE" shall be maintained by the Producing Party and made available for inspection by the
`
`Receiving Party only on a single stand-alone computer (that is, a computer not connected to any
`
`network, the Internet, or any peripheral device other than a keyboard, mouse, and monitor) and
`
`produced in electronic and searchable form in a manner consistent with how the code being
`
`produced is maintained in the ordinary course of business (e.g. with folder hierarchies preserved).
`
`Any reasonable request for production of Source Code on additional stand-alone computers shall
`
`be considered in good faith and not be unreasonably withheld.
`
`(b)
`
`The stand-alone computer shall be maintained in a secured location at the
`
`offices of the Producing Party's outside counsel or at the offices of the Producing Party, access to
`
`which shall be controlled by reasonable physical (e.g., locked doors) and electronic (e.g., password
`
`12
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 13 of 36 PageID #: 2520
`
`or other access provisions) security measures. Use of any input/output device (e.g., USB memory
`
`stick, CDs, floppy disk, portable hard drive, etc.) is prohibited while accessing the computer
`
`containing the Source Code, and the Receiving Party shall not attempt to use any peripheral device
`
`of any kind (other than the keyboard, mouse, and monitor provided by the Producing Party) with
`
`the stand-alone computer, nor shall the Receiving Party attempt to install any software on the
`
`stand-alone computer.
`
`(c)
`
`The Producing Party shall install tools and software that are sufficient for
`
`viewing and searching the code produced on the platform produced, including any tools provided
`
`by the Receiving Party in accordance with the provisions and restrictions of sub-paragraph ( d) of
`
`this section.
`
`(d)
`
`The Receiving Party's outside counsel and/or experts may request that
`
`additional commercially available software tools for viewing and searching Source Code be
`
`installed on the secured computer, provided, however, that (a) the Receiving Party possesses an
`
`appropriate license to such software tools; (b) the Producing Party approves such software tools;
`
`and (c) such other software tools are reasonably necessary for the Receiving Party to perform its
`
`review of the Source Code consistent with all of the protections herein. The Producing Party may
`
`notify the Receiving Party that it declines to install any requested inspection software if the
`
`software represents any unreasonable risk of compromising security of the source code or the
`
`Source Code Computer, or the software could be used for any other illegitimate purpose in
`
`contravention of the Protective Order. Within 3 days of such notification by the Producing Party,
`
`the parties shall meet and confer in good faith to attempt to resolve the issue. If the parties cannot
`
`resolve the issue, the Producing Party may bring a motion to the Court, but the pendency of the
`
`motion will not be used as a basis to withhold access by the Receiving Party of the source code for
`
`13
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 14 of 36 PageID #: 2521
`
`review using other tools. For emphasis, it should be noted that the tools for reviewing source code
`
`may not be used to circumvent the protections of this Protective Order in any way.
`
`(e)
`
`The foregoing terms do not foreclose the Receiving Party from seeking the
`
`production of source code in different formats or foreclose the Producing Party from seeking
`
`additional protections or a protective order. The parties will meet and confer promptly and in good
`
`faith in such circumstances.
`
`8.2
`
`Inspection of Source Code shall be permitted during regular business hours
`
`(weekdays 9:00 a.m. to 6:00 p.m. at law firms) although the Parties will be reasonable in
`
`accommodating requests to conduct inspections at other times.
`
`8.3
`
`At the Producing Party's selection, the secure location will be at an office
`
`of the Producing Party's Counsel of Record or at the offices of the Producing Party. The Producing
`
`Party shall also be entitled to have a person who is not an attorney monitor the Receiving Party's
`
`activities in the source code viewing room, but only to ensure compliance with the provisions of
`
`this Order governing source code. The person who monitors the review of source code cannot be
`
`unreasonably close in proximity to the Reviewing Party's counsel and consultants/experts such
`
`that he or she can listen to conversations between the Reviewing Party's counsel and experts, and
`
`is prohibited from engaging in any conduct that interferes with the review. The Producing Party
`
`will make a separate, private room available for the Receiving Party to confer or talk on the phone.
`
`8.4
`
`No person shall copy, e-mail,
`
`transmit, upload, download, print,
`
`photograph, or otherwise duplicate any portion of Source Code, or documents or things designated
`
`"RESTRICTED CONFIDENTIAL - SOURCE CODE," except as follows:
`
`(a)
`
`The Receiving Party may request a reasonable number of pages of
`
`Source Code to be printed. A reasonable number of pages means no more than 250 pages of Source
`
`14
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 15 of 36 PageID #: 2522
`
`Code per game, and in any case, no more than 35 contiguous pages of Source Code, on 8.5" x 11"
`
`paper with a font no smaller than Courier l 2pt. The parties agree to negotiate printing beyond these
`
`page limits in good faith should the need arise. The Producing Party shall provide a printer with
`
`water-marked
`
`(or colored), bates-number paper with
`
`the
`
`legend
`
`"RESTRICTED
`
`CONFIDENTIAL - SOURCE CODE" such that the Receiving Party can print the source code
`
`during the review. After the Receiving Party has completed its review and printing for the day, the
`
`Receiving Party shall provide the print-outs to the Producing Party for review. In the instance of a
`
`multiple day review, the Producing Party shall maintain copies printed during the course of the
`
`review until the conclusion of the review. The printed pages shall constitute part of the source code
`
`produced by the Producing Party in this action. If there is no objection, within three (3) business
`
`days, the Producing Party shall provide the print-outs to the Receiving Party. If the Producing
`
`Party has any objection to the print-outs, the Producing Party must object in writing within three
`
`(3) business days from receiving the print-outs from the Receiving Party. If no resolution can be
`
`reached, the Producing Party must file a motion for Protective Order with the Court no later than
`
`five (7) business days from receiving the print-outs from the Receiving Party.
`
`(b)
`
`Any printed pages of Source Code, and any other documents or
`
`things designated as "RESTRICTED CONFIDENTIAL- SOURCE CODE," may be photocopied,
`
`but not digitally imaged, e-mailed, transmitted, uploaded, downloaded, photographed, or otherwise
`
`duplicated, to be provided to Outside Consultants. Apart from such photocopies, any printed pages
`
`of Source Code, and any other documents or things designated as "RESTRICTED
`
`CONFIDENTIAL - SOURCE CODE," may not be copied, digitally imaged, e- mailed,
`
`transmitted, uploaded, downloaded, photographed, or otherwise duplicated, except in limited
`
`15
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 16 of 36 PageID #: 2523
`
`excerpts necessary to prepare as exhibits to depositions, expert reports, court filings, or court
`
`presentations.
`
`( c)
`
`A Receiving Party that wants to use any Source Code, or other
`
`documents or things designated as "RESTRICTED CONFIDENTIAL - SOURCE CODE," at a
`
`deposition may, no earlier than 72 hours prior to any such deposition, make only as many copies,
`
`and only of the specific pages, as it intends to actually use at the deposition. For any RESTRICTED
`
`CONFIDENTIAL - SOURCE CODE material used as a deposition exhibit, the exhibit shall be
`
`identified on the record, by Bates number or otherwise. The Receiving Party shall retain the
`
`original of any such exhibit and shall provide a copy of the original exhibit to the Producing Party
`
`at the conclusion of the deposition. No source code Exhibits shall be retained by the Court reporter
`
`at the conclusion of the deposition or appended to the transcript by the Court Reporter. At the
`
`conclusion of the deposition, the Producing Party will collect and shred any other copies of the
`
`source code that may have been distributed at the deposition, with the exception of the Parties'
`
`working copy(ies).
`
`( d)
`
`A Receiving Party that wants to file or otherwise submit any Source
`
`Code, or other documents or things designated as "RESTRICTED CONFIDENTIAL - SOURCE
`
`CODE," to the Court in connection with a filing may, no earlier than 72 hours prior to the relevant
`
`filing, make only as many copies, and only of the specific pages as needed, for submission to the
`
`Court and shall file any and all such copies of the materials with an application to file under seal.
`
`Unless agreed to by the Producing Party, images or copies of source code shall not be included in
`
`correspondence between the parties.
`
`8.5
`
`Any paper copies, documents, or things designated "RESTRICTED
`
`CONFIDENTIAL- SOURCE CODE" shall be stored or viewed only at (i) the offices of Counsel
`
`16
`
`

`

`Case 1:16-cv-00454-RGA Document 53 Filed 02/22/17 Page 17 of 36 PageID #: 2524
`
`of Record for the Receiving Party; (ii) the offices of Outside Consultants who have been approved
`
`to access "RESTRICTED CONFIDENTIAL - SOURCE CODE" materials; (iii) the site where
`
`any deposition is taken; (iv) the Court; or (v) any intermediate location necessary to transport the
`
`information to a hearing, trial, or deposition. Paper copies stored in locations (i) and (ii) shall be
`
`maintained at all times in a locked and secure area.
`
`8.6
`
`The Producing Party may maintain a Source Code Access Log identifying,
`
`for each and every time any Source Code is viewed, or accessed at the secure location: (1) the
`
`name of each person who accessed the Source Code; (2) the date and time of access; (3) the length
`
`of time of access; and ( 4) describing any photocopying or printing of Source Code (e.g. what was
`
`printed, how many copies, etc.). The log shall be produced to the Producing Party upon request if
`
`th