`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`C.A. No. 16-453 (RGA)
`
`C.A. No. 16-454 (RGA)
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`C.A. No. 16-455 (RGA)
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`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ACTIVISION BLIZZARD, INC.
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`ELECTRONIC ARTS INC.,
`
`Defendant.
`ACCELERATION BAY LLC,
`
`Plaintiff,
`
`v.
`
`TAKE-TWO INTERACTIVE
`SOFTWARE, ) INC., ROCKSTAR
`GAMES, INC. and 2K SPORTS, INC.,
`
`Defendant.
`
`[PROPOSED] PROTECTIVE ORDER GOVERNING THE
`DESIGNATION AND HANDLING OF CONFIDENTIAL MATERIALS
`
`To expedite the flow of discovery material, to facilitate the prompt resolution of disputes
`
`over confidentiality of discovery materials, to adequately protect information the parties are
`
`entitled to keep confidential, to ensure that only materials the parties are entitled to keep
`
`confidential are subject to such treatment, and to ensure that the parties are permitted reasonably
`
`
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`Case 1:16-cv-00455-RGA Document 50-1 Filed 02/15/17 Page 2 of 36 PageID #: 2291
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`necessary uses of such materials in preparation for and in the conduct of trial, it is hereby
`
`ORDERED THAT:
`
`1.
`
`DEFINITIONS.
`
`The terms defined in this Section 1 and parenthetically
`
`elsewhere shall, throughout this Order, have the meanings provided. Defined terms may be used
`
`in the singular or plural.
`
`1.1
`
`1.2
`
`The “Action” means the above-captioned litigations.
`
`“Party” means a party to the Action, including all of its officers, directors,
`
`employees, consultants, retained experts, and outside counsel (and their support staff).
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`1.3
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`“Material” means all
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`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
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`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
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`Material in this Action.
`
`1.7
`
`“Receiving Party” means any Party receiving production or disclosure of
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`Material in this Action.
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`1.8
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`“Confidential Material” means information, documents, and things the
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`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
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`Party and not generally known to others.
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`1.9
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`“Confidential -- Outside Counsel Only Material” means Confidential
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`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
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`describe in detail the algorithms or structure of software or hardware designs, disclosure of
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`which to another Party or Non-Party would create a substantial risk of serious harm that could
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`not be avoided by less restrictive means.
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`1.11
`
`“Counsel of Record” means (i) outside counsel who has entered an
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`appearance as counsel for a Party and has not subsequently withdrawn, (ii) partners, principals,
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`counsel, associates, employees and contract attorneys of such outside counsel to whom it is
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`reasonably necessary to disclose the information for this Action, including supporting personnel
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`employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks and
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`shorthand reporters, and/or (iii) independent legal translators retained to translate in connection
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`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
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`experience in a matter pertinent to this Action who has been retained by Counsel of Record to
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`serve as an expert witness, or as a consultant in this Action, and who is not a current employee of
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`a Party or of a competitor of a Party and who, at the time of retention, is not anticipated to
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`become an employee of a Party or of a competitor of a Party.
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`1.13
`
`“Professional Vendors” means any persons or entities that provide
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`litigation support services and their employees and subcontractors who have been retained or
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`directed by Counsel of Record in this action, and who are not current employees of a Party or of
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`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
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`demonstrations; organizing, storing, retrieving data in any form or medium; etc. Professional
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`Vendors include ESI vendors and professional jury or trial consultants retained in connection
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`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,
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`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
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`Action, as well as any related patents, patent applications, provisional patent applications,
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`continuations, and/or divisionals.
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`2.
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`SCOPE
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`2.1
`
`The protections conferred by this Order cover not only Designated
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`Material (as defined above), but also any information copied or extracted therefrom, as well as
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`all copies, excerpts, summaries, or compilations thereof. Nothing herein shall alter or change in
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`any way the discovery provisions of the Federal Rules of Civil Procedure, the Local Rules of this
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`Court, or the Court’s deadlines provided in any scheduling order or discovery order issued by the
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`Court. Identification of any individual pursuant to this Order does not make that individual
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`available for deposition, or any other form of discovery outside of the restrictions and procedures
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`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.
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`2.2
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`Nothing in this Protective Order shall prevent or restrict a Producing
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`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
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`who prepared the Designated Material.
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`2.3
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`Nothing in this Order shall be construed to prejudice any Party’s right to
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`use any Designated Material in court or in any court filing with the consent of the Producing
`
`Party or by order of the Court.
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`2.4
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`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
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`shall preclude such production.
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`Notwithstanding the provisions of this Protective Order, any Designated Material designated by
`
`a Defendant shall not be disclosed by the Plaintiff to any other Defendant or Defendant’s counsel
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`(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.
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`3.
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`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)
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`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
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`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)
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`Counsel of Record for the Designating Party or the Receiving Party;
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`Outside Consultants of
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`the Receiving Party (including necessary
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`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
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`the provisions of this Order by signing a copy of the “Acknowledgement and Agreement To Be
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`Bound By Protective Order” attached hereto as Exhibit A, and the “Certification Of Consultant”
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`attached hereto as Exhibit B, with the provisions of Section 6 being complied with prior to
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`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;
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`(e)
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`Witnesses at deposition and/or trial consistent with the provisions of
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`Section 7 below, provided that such witnesses may not retain copies of Designated Material
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`unless permitted by other provisions of this Order;
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`(f)
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`The Court and its personnel, any technical advisor that the Court may
`
`appoint, and any Jury impaneled in the Action;
`
`(g)
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`Any designated arbitrator or mediator who is assigned to hear this matter,
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`or who has been selected by the Parties, and his or her staff;
`
`(h)
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`(i)
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`Court reporters and videographers employed in connection with this case;
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`Professional Vendors to whom disclosure is reasonably necessary for this
`
`Action;
`
`(j)
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`Jury consultants, trial consultants, or mock jurors selected by counsel in
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`preparation for trial, provided they have signed the “Acknowledgement and Agreement To Be
`
`Bound By Protective Order” attached hereto as Exhibit A; and
`
`(k)
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`Any other person authorized by written agreement of the Producing Party
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`and the Receiving Party or by order of the Court.
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`4.
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`MATERIAL DESIGNATED “CONFIDENTIAL -- OUTSIDE COUNSEL
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`ONLY.” Any Designating Party may designate as “CONFIDENTIAL -- OUTSIDE COUNSEL
`
`ONLY” any Material that the party believes in good faith constitutes Confidential -- Outside
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`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.
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`5.
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`MATERIAL DESIGNATED “RESTRICTED CONFIDENTIAL – SOURCE
`
`CODE.” Any Designating Party may designate as “RESTRICTED CONFIDENTIAL –
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`SOURCE CODE” any Material that the party believes in good faith constitutes Restricted
`
`Confidential – Source Code Material. Unless otherwise ordered by the Court or permitted in
`
`writing by the Designating Party, Material designated as “RESTRICTED CONFIDENTIAL –
`
`SOURCE CODE” shall be treated as Material designated as “CONFIDENTIAL-- OUTSIDE
`
`COUNSEL ONLY” with the further restriction that (i) it shall not be disclosed to any person
`
`identified in Sections 3(g), 3(i) or 3(j) above; (ii) shall be disclosed to no more than three persons
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`identified in Section 3(d) above; and (iii) such Material is subject to the provisions of Section 8
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`of this Order.
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`6.
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`DISCLOSURE TO OUTSIDE CONSULTANTS. No disclosure of Designated
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`Material
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`to Outside Consultants shall occur until
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`the notice and resolution of objection
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`procedures of this Section are followed.
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`6.1
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`Notice. If a Receiving Party wishes to disclose another Party’s Designated
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`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;
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`(b) business address; (c) business or profession; (d) the individual’s CV; (e) any previous or
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`current relationship (personal or professional) with any of the Parties or any entity that the either
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`Receiving Party or the Outside Consultant has reason to believe is an Affiliate of any of the
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`Parties; (f) a list of other cases in which the individual has testified (at trial or by deposition)
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`within the last four years; (g) a list of all companies with which the individual has consulted or
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`by which the individual has been employed within the last four years; and (h) a signed copy of
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`the “Acknowledgement and Agreement To Be Bound By Protective Order” attached as Exhibit
`
`A, and the “Certification Of Consultant” attached hereto as Exhibit B.
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`6.2
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`Objections. The Designating Party shall have seven (7) business days from
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`receipt of the notice specified in Section 6.1 to object in writing to such disclosure (plus three (3)
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`extra days if notice is given other than by hand delivery, e-mail transmission or facsimile
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`transmission). Any such objection must set forth in detail the grounds on which it is based. After
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`the expiration of the 7-day (plus 3-days, if appropriate) period, if no objection has been asserted,
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`then Designated Material may be disclosed to the Outside Consultant pursuant to the terms of
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`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
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`disclosure of Designated Material to the Outside Consultant, or for other appropriate relief. If the
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`Objecting Party files a timely motion for a protective order, Designated Material shall not be
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`disclosed to the challenged individual until and unless a final ruling allowing such disclosure is
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`made by this Court, or by the consent of the Objecting Party, whichever occurs first. If the
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`Objecting Party fails to file a motion for a protective order within the prescribed period the
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`Designated Material may thereafter be disclosed to such individual.
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`7.
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`USE AT DEPOSITION
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`7.1
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`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
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`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
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`Protective Order” attached as Exhibit A. In the event that such attorney declines to sign the
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`Acknowledgement and Agreement To Be Bound By Protective Order prior to the examination,
`
`the parties, by their attorneys, shall jointly seek a protective order from the Court prohibiting
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`such attorney from disclosing such Designated Material.
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`7.4
`
`A witness who previously had access to a document designated
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`“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
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`protective order requires the parties to keep confidential any questions, testimony or documents
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`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
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`“CONFIDENTIAL”, “CONFIDENTIAL-- OUTSIDE COUNSEL ONLY” or “RESTRICTED
`
`CONFIDENTIAL – SOURCE CODE”. The Producing Party of any Designated Material used at
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`the deposition may also require that the transcript and exhibits not be copied by a witness who is
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`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
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`firm acting for one of the counsel representing a party in this case and under the supervision of
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`one of the lawyers who is bound by the terms of this Order).
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`7.5
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`Except as may be otherwise ordered by the Court, and without limitation
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`as to any of the other provisions of this section, any person may be examined as a witness by
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`deposition, and may testify concerning all Designated Material of which such person has prior
`
`knowledge.
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`7.6
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`Notwithstanding any sub-Section of
`
`this Section 7, no copies of
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`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.
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`8.
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`PRODUCTION OF SOURCE CODE. To the extent any Party’s Source Code
`
`is relevant and discoverable in this Action, this Section shall govern the production of Source
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`Code in this Action. The provision of this section shall also be available for the production of
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`Source Code by non-parties, however, such production may be governed by a supplemental
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`confidentiality order negotiated between the Receiving Party and the non-party.
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`8.1
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`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
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`computers shall be considered in good faith and not be unreasonably withheld.
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`(b)
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`The stand-alone computer shall be maintained in a secured location at the
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`offices of the Producing Party’s outside counsel or at the offices of the Producing Party, access
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`to which shall be controlled by reasonable physical (e.g., locked doors) and electronic (e.g.,
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`password or other access provisions) security measures. Use of any input/output device (e.g.,
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`USB memory stick, CDs, floppy disk, portable hard drive, etc.) is prohibited while accessing the
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`computer containing the Source Code, and the Receiving Party shall not attempt to use any
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`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
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`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.
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`(d)
`
`The Receiving Party’s outside counsel and/or experts may request that
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`additional commercially available software tools for viewing and searching Source Code be
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`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,
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`the parties shall meet and confer in good faith to attempt to resolve the issue. If the parties cannot
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`resolve the issue, the Producing Party may bring a motion to the Court, but the pendency of the
`
`motion will not be used as a basis to withhold access by the Receiving Party of the source code
`
`for review using other tools. For emphasis, it should be noted that the tools for reviewing source
`
`code may not be used to circumvent the protections of this Protective Order in any way.
`
`(e)
`
`The foregoing terms do not foreclose the Receiving Party from seeking the
`
`production of source code in different formats or foreclose the Producing Party from seeking
`
`additional protections or a protective order. The parties will meet and confer promptly and in
`
`good faith in such circumstances.
`
`8.2
`
`Inspection of Source Code shall be permitted during regular business
`
`hours (weekdays 9:00 a.m. to 6:00 p.m. at law firms) although the Parties will be reasonable in
`
`accommodating requests to conduct inspections at other times.
`
`8.3
`
`At the Producing Party’s selection, the secure location will be at an office
`
`of the Producing Party’s Counsel of Record or at the offices of the Producing Party. The
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`Producing Party shall also be entitled to have a person who is not an attorney monitor the
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`Receiving Party’s activities in the source code viewing room, but only to ensure compliance with
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`the provisions of this Order governing source code. The person who monitors the review of
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`source code cannot be unreasonably close in proximity to the Reviewing Party’s counsel and
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`consultants/experts such that he or she can listen to conversations between the Reviewing Party’s
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`counsel and experts, and is prohibited from engaging in any conduct that interferes with the
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`review. The Producing Party will make a separate, private room available for the Receiving Party
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`to confer or talk on the phone.
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`8.4
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`No person shall copy, e-mail,
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`transmit, upload, download, print,
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`photograph, or otherwise duplicate any portion of Source Code, or documents or things
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`designated “RESTRICTED CONFIDENTIAL – SOURCE CODE,” except as follows:
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`(a)
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`The Receiving Party may request a reasonable number of pages of
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`Source Code to be printed. A reasonable number of pages means no more than 250 pages of
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`Source Code per game, and in any case, no more than 35 contiguous pages of Source Code, on
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`8.5” x 11” paper with a font no smaller than Courier 12pt. The parties agree to negotiate printing
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`beyond these page limits in good faith should the need arise. The Producing Party shall provide a
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`printer with water-marked (or colored), bates-number paper with the legend “RESTRICTED
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`CONFIDENTIAL – SOURCE CODE” such that the Receiving Party can print the source code
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`during the review. After the Receiving Party has completed its review and printing for the day,
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`the Receiving Party shall provide the print-outs to the Producing Party for review. In the instance
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`of a multiple day review, the Producing Party shall maintain copies printed during the course of
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`the review until the conclusion of the review. The printed pages shall constitute part of the
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`source code produced by the Producing Party in this action. If there is no objection, within three
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`(3) business days, the Producing Party shall provide the print-outs to the Receiving Party. If the
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`Producing Party has any objection to the print-outs, the Producing Party must object in writing
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`within three (3) business days from receiving the print-outs from the Receiving Party. If no
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`resolution can be reached, the Producing Party must file a motion for Protective Order with the
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`Court no later than five (7) business days from receiving the print-outs from the Receiving Party.
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`(b)
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`Any printed pages of Source Code, and any other documents or
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`things designated as “RESTRICTED CONFIDENTIAL – SOURCE CODE,” may be
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`photocopied, but not digitally imaged,
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`e-mailed,
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`transmitted, uploaded, downloaded,
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`photographed, or otherwise duplicated, to be provided to Outside Consultants. Apart from such
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`photocopies, any printed pages of Source Code, and any other documents or things designated as
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`“RESTRICTED CONFIDENTIAL – SOURCE CODE,” may not be copied, digitally imaged, e-
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`mailed, transmitted, uploaded, downloaded, photographed, or otherwise duplicated, except in
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`limited excerpts necessary to prepare as exhibits to depositions, expert reports, court filings, or
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`court presentations.
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`(c)
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`A Receiving Party that wants to use any Source Code, or other
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`documents or things designated as “RESTRICTED CONFIDENTIAL – SOURCE CODE,” at a
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`deposition may, no earlier than 72 hours prior to any such deposition, make only as many copies,
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`and only of the specific pages, as it
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`intends to actually use at
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`the deposition. For any
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`RESTRICTED CONFIDENTIAL – SOURCE CODE material used as a deposition exhibit, the
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`exhibit shall be identified on the record, by Bates number or otherwise. The Receiving Party
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`shall retain the original of any such exhibit and shall provide a copy of the original exhibit to the
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`Producing Party at the conclusion of the deposition. No source code Exhibits shall be retained by
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`the Court reporter at the conclusion of the deposition or appended to the transcript by the Court
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`Reporter. At the conclusion of the deposition, the Producing Party will collect and shred any
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`other copies of the source code that may have been distributed at the deposition, with the
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`exception of the Parties’ working copy(ies).
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`(d)
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`A Receiving Party that wants to file or otherwise submit any
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`Source Code, or other documents or things designated as “RESTRICTED CONFIDENTIAL –
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`SOURCE CODE,” to the Court in connection with a filing may, no earlier than 72 hours prior to
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`the relevant filing, make only as many copies, and only of the specific pages as needed, for
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`submission to the Court and shall file any and all such copies of the materials with an application
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`to file under seal. Unless agreed to by the Producing Party, images or copies of source code shall
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`not be included in correspondence between the parties.
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`8.5
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`Any paper copies, documents, or things designated “RESTRICTED
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`CONFIDENTIAL – SOURCE CODE” shall be stored or viewed only at (i) the offices of
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`Counsel of Record for the Receiving Party; (ii) the offices of Outside Consultants who have been
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`approved to access “RESTRICTED CONFIDENTIAL – SOURCE CODE” materials; (iii) the
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`site where any deposition is taken; (iv) the Court; or (v) any intermediate location necessary to
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`transport the information to a hearing, trial, or deposition. Paper copies stored in locations (i) and
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`(ii) shall be maintained at all times in a locked and secure area.
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`8.6
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`The Producing Party may maintain a Source Code Access Log identifying,
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`for each and every time any Source Code is viewed, or accessed at the secure location: (1) the
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`name of each person who accessed the Source Code; (2) the date and time of access; (3) the
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`length of time of access; and (4) describing any photocopying or printing of Source Code (e.g.
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`what was printed, how many copies, etc.). The log shall be produced to the Producing Party upon
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`request if the Producing Party has a justifiable belief that the printed source code has been
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`improperly disclosed.
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`8.7
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`No Party shall physically, magnetically, digitally, optically, or otherwise
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`copy by any means, any Source Code, or documents or things that another Party has designated
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`“RESTRICTED CONFIDENTIAL – SOURCE CODE,” subject to the exceptions enumerated
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`above.
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`8.8
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`The Receiving Party may not
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`take any form of camera, computer,
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`computer storage device, or smartphone into the sou