Case 1:17-cv-00770-RGA-MPT Document 53 Filed 11/02/21 Page 1 of 22 PageID #: 9519
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
`
`WIRTGEN AMERICA, INC.
`
`Plaintiff,
`
`v.
`
`CATERPILLAR INC.
`
`Defendant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`C. A. No. 17-770-RGA
`
`JURY TRIAL DEMANDED
`
` [PROPOSED] STIPULATED PROTECTIVE ORDER
`
`This Stipulated Protective Order (“Protective Order”) is made by and between Plaintiff
`Wirtgen America, Inc. (“Wirtgen America”) and Defendant Caterpillar Inc. (“Caterpillar”)
`(collectively, the “Parties”).
`
`WHEREAS, the Parties are in need of discovery in the above-captioned action (the “Civil
`Action”);
`
`WHEREAS, the Parties seek to prevent undue or unwarranted disclosure of non-public,
`confidential, personal, commercial, financial, proprietary, trade secret, know-how, and design
`information and/or materials which may be divulged pursuant to discovery in the Civil Action;
`
`WHEREAS, pursuant to this Court’s Scheduling Order, see D.I. 28, and due to the overlap
`between the Civil Action and In the Matter of Certain Road Milling Machines and Components
`Thereof, Investigation No. 337-TA-1067 (Int’l Trade Comm’n) (the “1067 Investigation”), the
`discovery produced or taken in the 1067 Investigation may be used as if produced or taken in the
`Civil Action;
`
`WHEREAS, the Parties also agree that due to the overlap between the Civil Action and In
`the Matter of Certain Road Construction Machines and Components Thereof, Investigation No.
`337-TA-1088 (Int’l Trade Comm’n) (the “1088 Investigation”), the discovery produced or taken
`in the 1088 Investigation may be used as if produced or taken in the Civil Action; and
`
`WHEREAS, the Parties further agree to and authorize the exchange and use of discovery
`produced or taken in the 1067 Investigation and the 1088 Investigation, including information of
`non-party corporate affiliates of the Parties, such as Wirtgen GmbH, designated in the 1067
`Investigation or the 1088 Investigation as “Confidential Business Information,” “Confidential
`Source Code, Outside Attorneys’ Eyes Only,” or any other designation under the protective orders
`in the 1067 Investigation or the 1088 Investigation (including any amendments) in this Civil
`Action in accordance with this Protective Order.
`
`NOW, THEREFORE, in consideration of the mutual promises herein and pursuant to the
`
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`Federal Rules of Civil Procedure, the Parties agree as follows:
`
`I.
`
`DEFINITIONS
`
`Discovery Material. “Discovery Material” means all items or information, or any part
`A.
`thereof, regardless of the medium or manner generated, stored, or maintained, including, among
`other things, documents, materials, information, responses, answers, testimony, transcripts, or
`tangible things, that are produced, provided, disclosed, or generated in connection with discovery
`in the Civil Action.
`
`Outside Counsel. “Outside Counsel” means the attorneys appearing as counsel for, or who
`B.
`are retained to represent or advise, a Party, and who are not employees of a Party, and each of their
`paralegals, support, and office staff.
`
`Designating Party. “Designating Party” means a Party or non-party person or entity,
`C.
`including a Producing Party (later defined), that designates Discovery Material as Protected
`Information.
`
`Producing Party. “Producing Party” means any Party or non-party person or entity that
`D.
`discloses or produces any Discovery Material in the Civil Action.
`
`Receiving Party. “Receiving Party” means any Party that requests or receives any
`E.
`Discovery Material in the Civil Action.
`
`Expert. “Expert” means a person with specialized knowledge or experience in a matter
`F.
`pertinent to the litigation who has been retained by a Party or its Outside Counsel to serve as an
`expert witness or as a consultant in this Civil Action. This definition includes a professional jury
`or trial consultant retained in connection with this litigation. For the avoidance of doubt, this
`definition of “Expert” excludes an officer, member, owner, or employee of a Party who serves as
`or is retained as an expert in this Civil Action.
`
`Protected Information. “Protected Information” means any Discovery Material that is
`G.
`designated as “CONFIDENTIAL” (later defined) or “HIGHLY CONFIDENTIAL-OUTSIDE
`ATTORNEYS’ EYES ONLY” (later defined), as provided in this Protective Order.
`
`II.
`
`DURATION; COMPUTATION OF TIME
`
`Duration of Protective Order. Even after a final resolution or termination of the Civil
`A.
`Action, including by mediation or settlement, including all appeals, the confidentiality obligations
`imposed by this Protective Order shall remain in effect until a Designating Party agrees otherwise,
`in writing, or the Court directs otherwise.
`
`Conformance with Federal Rules of Civil Procedure. The computation of any period of
`B.
`time prescribed or allowed by this Protective Order shall be governed by the provisions for
`computing time set forth in Federal Rules of Civil Procedure 6(a) and 6(d).
`
`2
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`III.
`
`SCOPE OF PROTECTIVE ORDER
`
`Scope of Protection. The protections conferred by this Protective Order shall cover all
`A.
`Protected Information, including any information copied or extracted therefrom, as well as all
`copies, excerpts, summaries, or other compilations thereof. Such protections shall also extend to
`any pleadings, testimony, conversations, or presentations by any Party or its counsel that might
`discuss, reflect, or reveal Protected Information.
`
`Other Proceedings. By entering this Protective Order and limiting the disclosure of
`B.
`information in this case, the Court does not intend to preclude another court from finding that
`information may be relevant and subject to disclosure in another case. Any person or Party subject
`to this Protective Order who becomes subject to a motion to disclose another Party’s information
`designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’
`EYES ONLY” pursuant to this Protective Order shall promptly notify that Party of the motion so
`that the Party may have an opportunity to appear and be heard on whether that information should
`be disclosed.
`
`Reservation of Rights. Notwithstanding the provisions herein, nothing in this Protective
`C.
`Order shall prevent or restrict a Designating Party’s disclosure or use of its own Protected
`Information for any purpose.
`
`No Prejudice. This Protective Order is entered into by the Parties without prejudice to the
`D.
`right of either Party to seek further or additional protection of any Discovery Material, or to seek
`to modify this Protective Order in any way.
`
`IV.
`
`DESIGNATION, USE, AND DISCLOSURE OF PROTECTED INFORMATION
`
`Designation of Protected Information. A designation of Discovery Material as
`A.
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY”
`constitutes a representation by the Designating Party that the Designating Party has a good faith,
`reasonable basis to believe that the Discovery Material so designated is, in fact, Protected
`Information appropriate for, and entitled to, confidential protection.
`
`Exclusion of Protected Information. The Designating Party shall not designate as
`B.
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY”
`any Discovery Material:
`
`i.
`
`that is or has become publicly known through no fault of the Receiving Party;
`
`ii.
`
`that was previously produced, disclosed, and/or provided to the Receiving Party by the
`Producing Party or a third-party person or entity without an obligation of confidentiality,
`not by inadvertence or mistake, and absent direct or indirect solicitation and/or indirect
`circumvention in breach of this Protective Order; or
`
`iii.
`
`that was authorized to be produced, disclosed, and/or provided to the person or individual
`owning or controlling the Protected Information, which may be the Designating Party or
`
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`
`
`
`the Producing Party.
`
`
`Designation of “CONFIDENTIAL” Discovery Material. The Designating Party may
`C.
`designate and visibly mark as “CONFIDENTIAL”:
`
`
`i. any of the Designating Party’s Discovery Material which the Designating Party believes
`contains non-public, confidential personal, commercial, financial, proprietary, trade
`secret, know-how, and design information; or
`
`ii. confidential information of a third-party person or entity to whom the Designating Party
`owes an obligation of confidentiality.
`
`
`Designation of “HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY”
`D.
`Discovery Material. The Designating Party may designate and visibly mark as “HIGHLY
`CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY”:
`
`
`i. any Protected Data (as defined herein); and
`
`ii. any Sensitive Information (as defined herein).
`
`
`For the purpose of designation pursuant to the Protective Order, designating Discovery Material
`as “HIGHLY CONFIDENTIAL” or “AEO” shall constitute a designation as “HIGHLY
`CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY.”
`
`Protected Data; Sensitive Information. “Protected Data” and “Sensitive Information” are
`E.
`defined herein as follows:
`
`
`i. Protected Data. “Protected Data” means any personally identifiable information (PII) or
`information that a Party believes to be subject to local, state, federal, or international
`data-protection laws or data-privacy regimes, including (without limitation): the Federal
`Trade Commission Act (FTCA), 5 U.S.C. §§ 41-58, as amended (personal information);
`the Gramm-Leach-Bliley Act (GLBA), 15 U.S.C. § 6801 et seq. (financial information);
`the Health Insurance Portability and Accountability Act (HIPAA) and the regulations
`thereunder, 45 C.F.R. Part 160 and Subparts A and E of Part 164 (health information);
`the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g
`(educational information); the General Data Protection Regulation (GDPR), identified as
`Regulation (EU) 2016/679
` (European Union personal information); Personal
`Information Protection and Electronic Documents Act (PIPEDA), S.C. 2000, c. 5
`(Canadian personal information); and the Federal Law on Protection of Personal Data
`held by Private Parties (published July 5, 2010) (Mexico personal information).
`
`ii. Sensitive Information. “Sensitive Information” means:
`
`a. the Parties’ non-public financial information, as it relates to costs, revenues, and
`profits;
`
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`
`
`
`
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`b. Source Code;
`
`c. information or documents of a third party designated as “Highly Confidential Outside
`Attorney’s Eyes Only,” or designated “Confidential Business Information” of a third
`party in the 1067 Investigation or in the 1088 Investigation, unless the third party
`agrees that such documents may be designated “CONFIDENTIAL” under this
`protective order.
`
`d. such other information or documents, not otherwise excluded from a Highly
`Confidential designation, that the Parties agree in writing should be so designated.
`
`
`F. Discovery produced or taken in the 1067 Investigation and the 1088 Investigation. On entry
`of this Protective Order, discovery the Parties or their corporate affiliates produced in the 1067
`Investigation and the 1088 Investigation with a confidentiality designation (“Confidential ITC
`Discovery”), will be treated as HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES
`ONLY under this Protective Order. After 90 days from entry of this order, any Confidential
`ITC Discovery originally produced with a designation of Confidential Business Information
`by the Parties or corporate affiliates of the Parties, such as Wirtgen GmbH, but excluding
`discovery produced by a third party, will be deemed designated CONFIDENTIAL under this
`Protective Order. If a Producing Party wishes to up-designate any Confidential ITC Discovery,
`it must provide for use in this Civil Action a replacement production or copies of any up-
`designated documents with the HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES
`ONLY designation, as well as a written identification of the up-designated documents.1
`
`G. Disclosure of “CONFIDENTIAL” Discovery Material. The Receiving Party shall not disclose
`Discovery Material designated as “CONFIDENTIAL,” except to the following persons and
`entities:
`
`
`i. to up to three designated in-house counsel for the Receiving Party (the “Designated In-
`House Counsel”);
`
`ii. to the Receiving Party’s Outside Counsel and the Outside Counsel’s attorneys,
`employees, contractors, and staff;
`
`iii. to Experts retained by the Receiving Party in connection with the Civil Action;
`
`iv. to court reporters and their staff, professional jury or trial consultants, mock jurors, and
`other professional vendors providing litigation-support services (e.g., photocopying;
`videotaping; translating; preparing exhibits or demonstrations; organizing, storing,
`retrieving data in any form or medium, etc.), to whom disclosure is reasonably necessary
`
`1 Production of Wirtgen GmbH documents from the 1067 Investigation and the 1088 Investigation is not
`intended, nor should it be construed, as an agreement by Wirtgen America that discovery is appropriate and may be
`taken from Wirtgen GmbH, or as a waiver of any objection to, or protection from, the production, use, or admission
`into evidence of any production from Wirtgen GmbH. Caterpillar reserves all rights to seek discovery from Wirtgen
`GmbH by any means available to Caterpillar.
`
`5
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`
`
`
`for the Civil Action;
`
`v. to any Receiving Party witnesses for deposition or trial, or in preparation for deposition
`or trial, in the Civil Action, but only if the witness had previously sent, received, created,
`or reviewed the Protected Information; provided, however, that such witnesses shall not
`be sent copies of the Protected Information, nor may they retain such copies;
`
`vi. to a witness for the Designating Party in deposition or trial in the Civil Action, but only
`if the witness is employed by the Designating Party or had previously sent, received,
`created, or reviewed the Protected Information;
`
`vii. to the Court and its personnel, including the Clerk;
`
`viii. to other persons or entities as may be designated by written stipulation of Outside
`Counsel for the Designating Party; and
`
`ix. by specific order of the Court in this Civil Action.
`
`Disclosure of “HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY”
`H.
`Discovery Material. The Receiving Party shall not disclose Discovery material designated as
`“HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY,” except to the following
`persons and entities:
`
`
`i. to the Receiving Party’s Outside Counsel and the Outside Counsel’s attorneys,
`employees, contractors, and staff;
`
`ii. to Experts retained by the Receiving Party in connection with the Civil Action, but only
`to the extent deemed by the Receiving Party’s Outside Counsel to be reasonably
`necessary for the proper representation of their clients in the Civil Action;
`
`iii. to court reporters and their staff, professional jury or trial consultants, mock jurors, and
`other professional vendors providing litigation-support services (e.g., photocopying;
`videotaping; translating; preparing exhibits or demonstrations; organizing, storing,
`retrieving data in any form or medium, etc.), to whom disclosure is reasonably necessary
`for the Civil Action;
`
`iv. to any Receiving Party witnesses for deposition or trial, or in preparation for deposition
`or trial, in the Civil Action, but only if the witness had previously sent, received, created,
`or reviewed the Protected Information; provided, however, that such witnesses shall not
`be sent copies of the Protected Information, nor may they retain such copies;
`
`v. to a witness for the Designating Party in deposition or trial in the Civil Action, but only
`if the witness is employed by the Designating Party or had previously sent, received,
`created, or reviewed the Protected Information;
`
`vi. to the Court and its personnel, including the Clerk;
`
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`
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`
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`vii. to other persons or entities as may be designated by written stipulation of counsel for the
`Designating Party; and
`
`viii. by specific order of the Court in this Civil Action.
`
`Disclosure of Protected Data. Certain Protected Data may compel alternative or additional
`I.
`protections for disclosure beyond those set forth in this Protective Order. To the extent certain
`Protected Data requires alternative or additional protections for disclosure, the Parties shall meet
`and confer in good faith to address or resolve said alternative or additional protections, and, if
`unsuccessful, shall move the Court for appropriate relief.
`
`
`Limitation on Use. Unless otherwise permitted by this Protective Order, all Discovery
`J.
`Material designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL-OUTSIDE
`ATTORNEYS’ EYES ONLY” shall not be disclosed or used:
`
`
`i. for any purpose other than for litigating, prosecuting, defending, settling, or attempting
`to settle the Civil Action; and
`
`ii. by any third-party person or entity, except as otherwise stated herein, unless there is an
`order of this Court to the contrary.
`
`
`K. Outside Counsel’s Ability to Advise Client. Nothing in this Order shall preclude or impede
`Outside Counsel’s ability to communicate with or advise their client in connection with this
`litigation based on such counsel’s review and evaluation of Protected Information, provided
`however, that such communications or advice shall not disclose or reveal the substance or
`content of any Protected Information other than as permitted under this Order.
`
`L. In-House Redacted Copies. A Receiving Party may create and provide a redacted copy of any
`litigation materials containing another Party’s HIGHLY CONFIDENTIAL-OUTSIDE
`ATTORNEYS’ EYES ONLY information (e.g. motions, briefs, filings, discovery responses,
`expert reports, deposition transcripts, etc.) to the Receiving Party’s Designated In-House
`Counsel. Such redacted copies need only redact HIGHLY CONFIDENTIAL-OUTSIDE
`ATTORNEYS’ EYES ONLY information of other Parties.
`
`PROSECUTION BAR
`
`
`V.
`
`Prosecution Bar. Notwithstanding the provisions of Sections IV.F-G, no attorney, patent
`A.
`agent, Expert, or other person who subscribes to the Protective Order on behalf of a Party:
`
`
`i. may disclose any “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL – OUTSIDE
`ATTORNEYS’ EYES ONLY” information to any counsel, patent agent, or other person
`who participates in the Patent Prosecution (defined below) of any patent application
`pertaining to cold planers, mixers, and/or road milling machines; or
`
`ii. may be involved in Patent Prosecution (defined below) relating to the subject matter of
`
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`cold planers, mixers, and/or road milling machines, before any foreign or domestic
`agency, including, but not limited to, the United States Patent and Trademark Office
`(USPTO) and the European Patent Office (EPO).
`
`Collectively, Section V.A. shall be referred to as the “Prosecution Bar.”
`
`No Imputation of Prosecution Bar. The Prosecution Bar is personal to any person
`B.
`subscribing to the Protective Order or Outside Counsel that actually receives CONFIDENTIAL or
`HIGHLY CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY Discovery Material and
`shall not be imputed to any other person or entity.
`
`Termination of Prosecution Bar. These prohibitions shall end three years and six months
`C.
`(3.5 years) after the earlier of the final resolution or termination, including by mediation or
`settlement, of the Civil Action, including all appeals, except if an attorney, patent agent, Expert,
`or other individual who subscribes to the Protective Order is not involved an any appeal, the
`prohibition shall end three years and six months (3.5 years) after the earlier of the final resolution
`or termination of the Civil Action.
`
`Definition of Patent Prosecution. “Patent Prosecution” means substantive patent
`D.
`prosecution activities involving “competitive decision making,” as set forth in In re Deutsche
`Bank, 605 F.3d 1373, 1378 (Fed. Cir. 2010), such as substantively supervising, assisting, or
`participating in (including advising on, consulting on, preparing, drafting, editing, amending, or
`otherwise prosecuting applications, claims, and responses to office actions) the prosecution of any
`pending or future patent application before the USPTO, any foreign patent office, or any other
`foreign or domestic agency, with respect to any patent application claiming (in whole or in part)
`the subject matter of: (a) cold planers, mixers, and/or road milling machines; or (b) any of the
`parents, grand-parents, or other predecessor applications in the chain, or descendants, of the
`patents-in suit. Notwithstanding the foregoing, “Patent Prosecution” shall not include representing
`a Party in, or otherwise participating in, interferences, reissue proceedings, ex parte reexamination,
`inter partes review, or post-grant review proceedings.
`
`VI.
`
`ACCESS OF PROTECTED INFORMATION AND PROCEDURE FOR DISCLOSURE
`
`Access to Protected Information. Each person, including those acting on behalf of the
`A.
`Parties, given access to Discovery Material designated as “CONFIDENTIAL” or “HIGHLY
`CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY,” or information derived therefrom,
`shall be advised that Protected Information is being disclosed pursuant and subject to the terms of
`this Protective Order and may not be disclosed other than pursuant to the terms hereof. Each person
`identified in sections IV.F.i., iii., or v., or identified in sections IV.G.ii., or iv., to whom such
`Protected Information is to be provided shall be required to sign, prior to receiving the Protected
`Information, an agreement in the form attached hereto as “Exhibit A,” the agreement of which
`shall be served on the Producing Party and any opposing Parties prior to disclosure of the Protected
`Information.
`
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`
`
`
`Procedure for Disclosure of Protected Information to Designated In-House Counsel Under
`B.
`IV.F.i. Disclosure or production of Discovery Material designated “CONFIDENTIAL” to
`Designated In-House Counsel under IV.F.i must proceed in accordance with the procedure below:
`
`
`i. Written Request. No less than seven (7) days prior to an initial disclosure of Protected
`Information to a Designated In-House Counsel, a Party seeking to disclose to a
`Designated In-House Counsel any Discovery Material that has been designated
`“CONFIDENTIAL” must make a written request to the Designating Party.
`
`
`
`ii. Objection. A Party that makes a written request may disclose “CONFIDENTIAL”
`Discovery Material to the Designated In-House Counsel unless, within seven (7) days of
`delivering the written request, the requesting Party receives a written objection from the
`designating Party. Any such objection must set forth in detail the grounds on which it is
`based.
`
`iii. Meet and Confer. After a timely written objection, the Parties must meet and confer to
`try to resolve the matter by agreement within seven (7) days of the written request. If no
`agreement is reached, the designating Party may file a motion with the Court seeking a
`protective order preventing disclosure to the Designated In-House Counsel and will bear
`the burden of persuasion in preventing disclosure. In presenting the request for a
`protective order, the designating Party must follow the procedure outlined for “Discovery
`Matters” before Magistrate Judge Thynge, as set forth in D.I. 30. If the designating Party
`does not contact chambers to schedule a telephone conference on the motion for a
`protective order within seven (7) days from the Parties’ meet and confer, the objection is
`deemed waived and Party seeking to disclose to a Designated In-House Counsel may do
`so.
`
`
`
`Procedure for Disclosure of Protected Information to Designated Experts Under IV.F.iii.
`C.
`or IV.G.ii. Disclosure or production of Discovery Material designated “CONFIDENTIAL” or
`“HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES ONLY” to designated Experts
`under IV.F.iii. or IV.G.ii must proceed in accordance with the procedure below:
`
`
`i. Written Request No less than seven (7) days prior to an initial disclosure of Protected
`Information to a designated Expert, a Party seeking to disclose to a designated Expert
`any Discovery Material that has been designated “CONFIDENTIAL” or “HIGHLY
`CONFIDENTIAL–OUTSIDE ATTORNEYS’ EYES ONLY” must make a written
`request to the Designating Party that:
`
`a. sets forth the full name of the designated Expert, and the city and state of his or her
`primary residence;
`
`b. attaches a copy of the designated Expert’s current resume or curriculum vitae;
`
`c. identifies the designated Expert’s current employer(s), as applicable;
`
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`
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`d. identifies each person or entity from whom the designated Expert has received
`compensation or funding for work in his or her areas of expertise or to whom the
`designated Expert has provided professional services, including in connection with a
`litigation, at any time during the preceding five (5) years; and
`
`e. identifies (by name and number of the case, filing date, and location of court) any
`litigation in connection with which the designated Expert has offered expert
`testimony, including through a declaration, report, or testimony at a deposition or
`trial, during the preceding five (5) years.
`
`ii. Objection. A Party that makes a written request and provides the information specified
`in the preceding respective paragraphs may disclose the “HIGHLY CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL” Discovery Material to
`the designated Expert unless, within seven (7) days of delivering the written request, the
`requesting Party receives a written objection from the designating Party. Any such
`objection must set forth in detail the grounds on which it is based.
`
`iii. Meet and Confer. After a timely written objection the Parties must meet and confer to try
`to resolve the matter by agreement within seven (7) days of the written request. If no
`agreement is reached, the designating party may file a motion with the Court seeking a
`protective order preventing disclosure to the designated Expert and will bear the burden
`of persuasion in preventing disclosure. In presenting the request for a protective order,
`the designating Party must follow the procedure outlined for Discovery Matters before
`Magistrate Judge Thynge, as set forth in D.I. 30. If the designating Party does not contact
`chambers to schedule a telephone conference on the motion for a protective order within
`seven (7) days from the Parties’ meet and confer, the objection is deemed waived and
`Party seeking to disclose to a designated Expert may do so.
`
`Procedure for Disclosure of Protected Information at Deposition. Disclosure or production
`D.
`of Discovery Material designated “HIGHLY CONFIDENTIAL-OUTSIDE ATTORNEYS’ EYES
`ONLY” or “CONFIDENTIAL” during a deposition must proceed in accordance with the
`procedure below:
`
`
`i. State on the Record. Either Party’s counsel may state on the record that the documents
`referred to or the testimony elicited constitutes Protected Information and that the
`transcript of that portion of the deposition should be filed in the manner prescribed below.
`
`ii. Departure from Deposition Setting. Either Party’s counsel may request that any person
`who is not authorized to receive Protected Information leave the room during the
`confidential portion of the deposition. The failure of such other individuals to comply
`with a request of this type shall constitute substantial justification for the Party’s counsel
`to advise the witness not to answer a question seeking revelation of Protected
`Information.
`
`iii. Designation of Protected Information. Either Party’s counsel may also designate any
`portion of a deposition
`transcript as “CONFIDENTIAL” or “HIGHLY
`
`10
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`VII.
`
`CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY.” Such designation shall
`be made within twenty-one (21) days after receipt of the transcript. All information
`contained in the transcript shall be deemed Protected Information until the expiration of
`this twenty-one (21) day period.
`
`FILING PROTECTED INFORMATION WITH THE COURT
`
`
`General Limitation on Filing Protected Information. Protected Information shall not be
`A.
`filed as a matter of course with the Court, but only when necessary for consideration by the Court
`or trier of fact and deemed by counsel to be necessary for the proper presentation of a pending
`motion, claim, defense, and/or resolution of the Civil Action.
`
`Filing under Seal. Any Protected Information submitted to the Court in connection with a
`B.
`motion, pleading, notice, or other filing shall be filed under seal. In connection with the foregoing,
`the filing Party shall publicly file a redacted version of said motion, pleading, notice, or other
`filing, along with a redacted version of any supporting papers (as applicable).
`
`
`Filing under Seal pursuant to CM/ECF and Scheduling Order. In accordance with D. Del.
`C.
`LR 5.1.3, Protected Information placed under seal must be filed in accordance with CM/ECF
`Procedures, unless otherwise ordered by the Court. In accordance with this Court’s Scheduling
`Order, see D.I. 28, when filing papers under seal, counsel shall deliver to the Clerk of the Court
`the required numbers of copies as required in paragraph 6 of the Scheduling Order. A redacted
`version of any sealed document must be filed electronically within seven (7) days of the filing of
`the sealed document.
`
`VIII. CONFIDENTIAL SOURCE CODE
`
`
`Definition of Confidential Source Code. “Confidential Source Code” shall mean human-
`A.
`readable programming language text that defines software, firmware, microcode, or electronic-
`hardware descriptions. “Confidential Source Code” further includes, without limitation:
`
`
`i. computer code, scripts, assembly, source code, object code, executable code, and source-
`code listings, object-code listings, executable-code listings, and descriptions of the
`foregoing (i.e., computer instructions and data definitions expressed in a form suitable
`for input to an assembler, compiler, or other translator);
`
`ii. hardware description language (HDL), very high-speed integrated circuit (VHSIC)
`hardware description language (VHDL), register transfer level (RTL) files that describe
`the hardware design of any application-specific integrated circuit (ASIC) or other chip,
`or other similarly sensitive implementation details;
`
`iii. files containing text written in “C,” “C++,” assembler, Verilog, and digital signal
`processor (DSP) programming languages;
`
`
`iv. MATLAB code or other signal processing simulation code;
`
`
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`
`
`
`v. “include” files, “make” files, link files, and diffs, as well as source files, intermediate
`output files, executable files, header files, resource files, library files, module definition
`files, map files, object files, linker files, browse info files, and debug files;
`
`vi. and other human-readable text files used in the generation and/or building of software
`executed on a processor, microprocessor, microcontroller, or DSP, including (without
`limitation), programmer notes, annotations, and other comments of any type related
`thereto and accompanying the code.
`
`
`Relationship to Protected Information. Confidential Source Code is a form of, and shall be
`B.
`afforded all of the same protections as, Protected Information, unless otherwise provided for by
`the Designating Party. For the avoidance of doubt, the restrictions herein on Confidential Source
`Code do not apply to publicly available source code available as open source code. To the extent
`production or disclosure of Confidential Source Code is required, the Designating Party may
`designate
`the Confidential Source Code as “HIGHLY CONF