`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 1 of 39 PageID #: 6826
`Attorney or PeB@uthidQ-CV-01937-MFK-JLH Document 102 Filed 05/05/21 Page 1 of 39 PagelD #: 6826
`Jonathon Talcott
`BALLARD SPAHR LLP
`
`1 East Washington St Suite 2300
`Phoenix, AZ 85004
`TELEPHONENo.: (602) 798-5400
`
`Attorney for: Defendant Cross-Complainant GoDaddy.com, LLC
`
`Ref No.or File No.:
`
`00309304 XMO v GoDaddy.com
`
`Insert name of Court, and Judicial District and Branch Court:
`In UNITED STATES DISTRICT COURT
`
`Petitioner: Express Mobile Inc
`Respondent: GoDaddy.com, Inc.
`
`|
`
`
`
`CERTIFICATE OF SERVICE
`
`HEARING DATE:
`
`5/18/2021
`
`TIME:
`
`9:00 AM
`
`DEPT.:
`
`CASE NUMBER:
`
`1:19-cv-01937 RGA
`
`| declare under penalty of perjury underthe laws of the State of Arizona that the foregoing is true and correct. At the time of
`service | was at least 18 years of age and authorized to serve processin this case.
`
`t-served copies of the Subpoena to Testify ata Deposition In a Civil Action; Protective Order
`
`a. Party served
`
`Zurich Insurance Group, Ltd., Zurich American Insurance Company
`
`Pat Melzer- Legal Assistant/Authorized to Accept
`b. Person Served
`Age: 65 Race: Caucasian Sex: Female Eyes: Height: 5'5" Weight: 140 Hair: Gray
`
`Address where served: 1299 Zurich Way FI 5
`Schaumburg, IL 60196-5870
`
`5.
`
`| served the party
`a.
`| personally delivered the documents to the party or person authorized to
`receive service of processfor the party (1) on: 4/27/2021
`(2) at: 10:15 AM
`
`Person who served papers:
`NATIONWIDE Name: Ryan Flaska
`~
`~ County of Cook,
`3150 N. 24TH STREET, D-104
`Phoenix, AZ 85016
`(602) 256.9700
`www.nationwideasap.com
`
`The fee for service was: $ 150.00
`
`Date: April 29, 2021
`
`
`
`(Ryan Flaska)
`
`
`IMNITTOPEQQQUUOYULNA
`
`AZ226381
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 2 of 39 PageID #: 6827
`
`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`__________ District of __________
`
`Civil Action No.
`
`))))))
`
`Plaintiff
`v.
`
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`(Name of person to whom this subpoena is directed)
`’ Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
`or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
`those set forth in an attachment:
`
`
`
`Place:
`
`Date and Time:
`
`The deposition will be recorded by this method:
`
`’ Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`material:
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Deputy Clerk
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things, a notice
`and a copy of the subpoena must be served on each party in this case before it is served on the person to whom it is
`directed. Fed. R. Civ. P. 45(a)(4).
`
`District of Delaware
`
`Express Mobile, Inc.
`
`1:19-cv-01937-RGA
`
`GoDaddy.com, LLC
`
`Zurich Insurance Group, Ltd, Zurich American Insurance Company, Zurich American Insurance Company of
`Illinois
`1299 Zurich Way, 5th Fl., Schaumburg, IL 60196-1056
`
`4
`
`McCorkle Litigation Services, Inc.
`200 N. LaSalle St., Ste 2900
`Chicago, IL 60601
`
`05/18/2021 9:00 am
`
`Audiovisual means, with a court reporter present.
`
`4
`
`See attached Exhibit A.
`
`04/23/2021
`
`/s/ Brian S.S. Auerbach
`
`GoDaddy.com, LLC
`
`Brian Auerbach, Ballard Spahr LLP, 919 N. Market St., Wilmington, DE 19801, 302-252-4463
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 3 of 39 PageID #: 6828
`
`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`’ I served the subpoena by delivering a copy to the named individual as follows:
`
`’ I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`
`
`My fees are $
`
`for travel and $
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`for services, for a total of $
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`.
`
`.
`
`1:19-cv-01937-RGA
`
`0.00
`
`Print
`
`Save As...
`
`Add Attachment
`
`Reset
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 4 of 39 PageID #: 6829
`
`AO 88A (Rev. 12/13) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(i) disclosing a trade secret or other confidential research, development,
`or commercial information; or
` (ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
` (C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
` (i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
` (ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(c) Place of Compliance.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
`
`
` (2) Command to Produce Materials or Permit Inspection.
` (A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
` (B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
` (i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
`
` (A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`
` (i) fails to allow a reasonable time to comply;
` (ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
` (iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
` (iv) subjects a person to undue burden.
` (B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
` (A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
` (B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
` (C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
` (D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
` (A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
` (i) expressly make the claim; and
` (ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
` (B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 5 of 39 PageID #: 6830
`
`DEFINITIONS
`
`EXHIBIT A
`
`1.
`
`“You” or “Your” refers to Zurich Insurance Group together with any present and
`
`former agents, contractors, consultants, subsidiaries, affiliates, officers, directors, employees,
`
`agents, attorneys, representatives, and anyone else acting on your behalf.
`
`2.
`
`3.
`
`“All” means any and all.
`
`The term “Patents-in-Suit” means U.S. Patent No. 6,546,397, U.S. Patent No.
`
`7,594,168, U.S. Patent No. 9,063,755, U.S. Patent No. 9,471,287, and U.S. Patent No. 9,928,044
`
`collectively and individually.
`
`4.
`
`“Express Mobile” or “XMO” refers to Express Mobile, Inc., together with all of
`
`its past and present officers, directors, employees, representatives, agents, consultants, and
`
`attorneys, as well as any past or present predecessor, successor, parent, subsidiary, division, or
`
`affiliate thereof, whether domestic or foreign, whether owned in whole or in part, and including
`
`without limitation all entities acting in joint-venture or partnership relationships with Express
`
`Mobile, Inc., with respect to the Patents-in-Suit either directly or indirectly, and others acting on
`
`behalf of the entity.
`
`5.
`
`The terms “Document” or “Thing” shall be construed as being synonymous in
`
`meaning and equal in scope to the usage of that term in Federal Rule of Civil Procedure 34(a),
`
`and as provided for by applicable Local Rules of the United States District Court for the District
`
`of Delaware, and shall include all requested documents in Your possession, custody, or control,
`
`and includes without limitation all forms of written, printed, recorded, charted, taped, graphic,
`
`digital, electronic, magnetic, or photographic matter, sound reproductions, or computer input or
`
`output that is producible under the Federal Rules of Civil Procedure, including but not limited to,
`
`writings, contracts, agreements, letters, correspondence, memoranda, notes, emails, pleadings,
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 6 of 39 PageID #: 6831
`
`stored data, metadata, information, texts, voicemails, social media posts, electronic mail, USB
`
`and other storage drives, orders, papers, drawing, photographs or images, that are now or at any
`
`time were in the possession, custody, or control of you, your present or former agents, attorneys,
`
`accountants, consultants, officers, directors, employees, or any other person acting on your
`
`behalf. “Document” and “Thing” also include the original and any draft thereof, and all non-
`
`identical drafts and copies of documents and copies upon which notes have been made. “Things”
`
`also include tangible things, items, products, and/or software.
`
`6.
`
`“Communication” is a type of Document and included in that definition, and
`
`means every manner or means of disclosure, transfer, or exchange of information in your
`
`possession, custody, or control, including without limitation information conveyed via a
`
`document; electronic transmissions of information; Communications transmitted by or through a
`
`computer or computer network; and further including all conversations, discussions, reports,
`
`records, memoranda, emails, text messages, internet postings, facsimile transmissions, or letters.
`
`The term specifically includes, without limitation, electronic mail.
`
`7.
`
`8.
`
`“Including” and “include” means “including but not limited to.”
`
`Each of the functional words “each,” “every,” “any,” and “all” shall be deemed to
`
`include each of the other functional words.
`
`9.
`
`The singular shall be deemed to include the plural, and the plural shall be deemed
`
`to include the singular, as necessary to make the topic inclusive rather than exclusive.
`
`10.
`
`The terms “and” and “or” shall be construed either conjunctively or disjunctively
`
`as necessary to make the topic inclusive rather than exclusive.
`
`11.
`
`Any request phrased in the present tense shall be read as if propounded in the past
`
`tense and vice versa as necessary to make each topic inclusive rather than exclusive. All verbs
`
`2
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 7 of 39 PageID #: 6832
`
`shall be construed to include all tenses as necessary to make the topic inclusive rather than
`
`exclusive.
`
`12.
`
`Unless otherwise defined, all words and phrases used herein shall be accorded
`
`their usual meanings, and shall be interpreted in their common, ordinary sense.
`
`13.
`
`To the extent that any proper name used herein is incorrect, it is to be construed as
`
`the correct proper name, if the correct name is reasonably identifiable from the name used.
`
`INSTRUCTIONS
`
`1.
`
`This Subpoena includes requests for the production of all Documents, Things, and
`
`Communications listed below, whether prepared by or for You, or by any other party or any
`
`other person, in Your possession, custody, control, or in the possession, custody or control of
`
`Your attorneys, accountants, consultants, receivers, employees, agents, or any other person or
`
`entity acting on Your behalf.
`
`2.
`
`You must respond to each Request for Production of Documents below at least
`
`seven business days before the date set forth in the accompanying Subpoena by: (i) producing
`
`for inspection and copying all of the requested Documents at the location listed on the cover of
`
`the Subpoena (the “Document Response Location”); or (ii) delivering true, correct, and
`
`unredacted copies of all requested Documents to the Document Response Location, or an
`
`alternative location or by electronic means if that is agreed upon in writing.
`
`3.
`
`In responding to this Subpoena, You must divulge: (i) all information and
`
`Documents that are known to, or in the possession, custody, or control of You and Your
`
`attorneys, investigators, agents, employees, affiliates, subsidiaries, or other representatives; and
`
`(ii) all information and Documents that may be obtained upon the exercise of reasonable due
`
`diligence by You and Your attorneys, investigators, agents, employees, affiliates, subsidiaries, or
`
`other representatives.
`
`3
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 8 of 39 PageID #: 6833
`
`4.
`
`You are required to produce Documents in accordance with Rule 34(b)(2)(E) of
`
`the Federal Rules of Civil Procedure.
`
`5.
`
`Attached as Exhibit 1 is a copy of the operative Protective Order entered in this
`
`action. To the extent You produce any Documents containing confidential information, You may
`
`designate them under the terms of this Protective Order.
`
`6.
`
`Please produce all Documents responsive to each topic below that exist within
`
`Your possession, custody, or control, including Documents within the possession, custody, or
`
`control of Your attorneys, agents, partners, accountants, investigators, and representatives.
`
`7.
`
`If there are no Documents responsive to any one of the topics below, please state
`
`so in writing.
`
`8.
`
`If You object to the production of any Document on the basis of privilege (or any
`
`other protection or immunity from disclosure), You must provide the following information for
`
`each such document:
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`f.
`
`Title or description;
`
`Date;
`
`Author;
`
`Recipient(s);
`
`Subject matter; and
`
`The specific ground(s) for withholding the Document.
`
`9.
`
`If any Document or Communication requested by this Subpoena was formerly in
`
`Your actual or constructive care, custody or possession or control or that of any of Your
`
`employees, agents, representatives, and has been lost, discarded, destroyed, or otherwise
`
`disposed of, You shall submit a written statement explaining with specificity:
`
`4
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 9 of 39 PageID #: 6834
`
`a.
`
`b.
`
`c.
`
`d.
`
`e.
`
`Title or description;
`
`Author;
`
`Recipient(s);
`
`Subject matter;
`
`Circumstances under which it was lost, discarded,
`
`destroyed, or otherwise disposed of;
`
`f.
`
`All witnesses who have knowledge of the loss, discarding,
`
`destruction, or disposal.
`
`10.
`
`Your duty in complying with this Subpoena is continuing in nature. Therefore, if,
`
`at a later date, You obtain information or Documents that are different from, or in addition to, the
`
`information and Documents produced, then You must immediately produce the new or
`
`additional information or Documents.
`
`11.
`
`This Subpoena also includes Topics for Examination that will be the subject of an
`
`oral deposition of Zurich Insurance Group at the location listed on the cover page of the
`
`Subpoena, or an alternative location that is agreed upon in writing at least five business days
`
`before the deposition date.
`
`12.
`
`The deposition will be recorded by audiovisual and/or stenographic means, and
`
`will be taken in accordance with the applicable Federal Rules of Civil Procedure.
`
`REQUESTS FOR PRODUCTION OF DOCUMENTS
`
`5
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 10 of 39 PageID #: 6835
`
`Pursuant to Rule 45 of the Federal Rules of Civil Procedure, and in accordance with the
`
`instructions above, please produce all documents, communications, correspondence, reports,
`
`agreements, and things in your possession, custody, or control comprising or relating to the
`
`following Topics:
`
`1.
`
`All Documents and Things in Your possession, custody, or control referring or
`
`relating to the Patents-in-Suit, including, without limitation, any reference to the Patents-in-Suit
`
`or their value made in connection with a personal injury lawsuit involving Steven Rempell (e.g.,
`
`any email or other Communication referring to the value of Express Mobile or its patents, such
`
`as from a lawyer of Mr. Rempell with the last name of Welch).
`
`2.
`
`All Documents and Things in Your possession, custody, or control referring or
`
`relating to Express Mobile, including, without limitation, any reference to Express Mobile or the
`
`valuation of Express Mobile or its assets, including any patent assets, made in connection with a
`
`personal injury lawsuit involving Steven Rempell (e.g., any email or other Communication
`
`referring to the value of Express Mobile or its patents, such as from a lawyer of Mr. Rempell
`
`with the last name of Welch).
`
`3.
`
`All Documents and Things in Your possession, custody, or control referring or
`
`relating to Steven Rempell, including, without limitation, any reference to the value of Steven
`
`Rempell’s assets such as any patents he owned interest in or to made in connection with a
`
`personal injury lawsuit involving Steven Rempell (e.g., any email or other Communication
`
`referring to the value of Express Mobile or its patents, such as from a lawyer of Mr. Rempell
`
`with the last name of Welch).
`
`6
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 11 of 39 PageID #: 6836
`
`TOPICS FOR EXAMINATION
`
`1.
`
` All Documents produced in response to this Subpoena and requests for
`
`Documents listed above, including the authentication, dates, authors, custodians, chain of
`
`custody, and other foundation for such Documents.
`
`7
`
`

`

`Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 12 of 39 PageID #: 6837
`
`
`
`
`
`
`
`Exhibit 1
`
`
`
`

`

`
`
`Case 1:19-cv-01937-RGA Document 20 Filed 03/06/20 Page 1 of 27 PageID #: 532Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 13 of 39 PageID #: 6838
`
`IN THE UNITED ST ATES DISTRICT COURT
`FOR THE DISTRICT OF DELA WARE
`
`EXPRESS MOBILE, INC.
`
`Plaintiff,
`
`V.
`
`WEB.COM GROUP, INC.
`
`Defendant.
`
`EXPRESS MOBILE, INC.
`
`Plaintiff and Counterclaim
`Defendant,
`
`V.
`
`GODADDY.COM, LLC
`
`Defendant and
`Counterclaimant.
`
`C.A. No. 1:19-cv-01936-RGA
`
`JURY TRIAL DEMANDED
`
`C.A. No. 1:19-cv-01937-RGA
`
`JURY TRIAL DEMANDED
`
`CONFIDENTIALITY AND PROTECTIVE ORDER
`
`Before the court is the joint motion of the parties for the entry of a confidentiality and
`
`protective order ("Protective Order"). After careful consideration, it is hereby ORDERED as
`
`follows:
`
`I.
`
`DEFINITIONS
`
`1.
`
`"CONFIDENTIAL INFORMATION": Confidential information (regardless of
`
`how generated, stored, or maintained) or tangible things that include or incorporate such
`
`confidential information that the producing party: (i) would not normally reveal to third parties
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`except in confidence, or has undertaken with others to maintain in confidence, (ii) believes in good
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`faith is significantly sensitive, or (iii) believes in good faith is protected by a right to privacy under
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`federal or state law, or any other applicable privilege or right related to confidentiality or privacy.
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`1
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`

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`
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`Case 1:19-cv-01937-RGA Document 20 Filed 03/06/20 Page 2 of 27 PageID #: 533Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 14 of 39 PageID #: 6839
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`In this case, CONFIDENTIAL INFORMATION may be designated, consistent with the terms and
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`conditions of this Protective Order, as CONFIDENTIAL, CONFIDENTIAL - OUTSIDE
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`ATTORNEYS' EYES ONLY, or CONFIDENTIAL - OUTSIDE ATTORNEYS EYES ONLY
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`SOURCE CODE. All information produced in this litigation whether CONFIDENTIAL
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`INFORMATION or not shall be used exclusively for the purpose of pursuing good faith claims
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`and defenses in the above-entitled litigation and shall not be used for any other purpose or
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`litigation.
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`2.
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`"Source Code": includes human-readable programming language text that defines
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`software, firmware, (collectively, "software Source Code") and integrated circuits ("hardware
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`Source Code"). Text files containing Source Code shall hereinafter be referred to as "Source Code
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`files. " Software Source Code files shall include, but are not limited to, files containing Source
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`Code in "C," "C++," BREW, Java ME, J2ME, assembler, digital signal processor (DSP)
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`programming languages, and other human readable text programming languages. Software Source
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`Code files further include ".include files," "make" files, "link" files, and other human-readable
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`text files used in the generation and/or building of software directly executed on a microprocessor,
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`micro-controller, or DSP. Hardware Source Code files include, but are not limited to, files
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`containing Source Code in VDHL, Verilog, and other Hardware Description Language ("HDL")
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`formats, including but not limited to, Register Transfer Level ("RTL") descriptions.
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`3.
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`"Chip-Level Schematics": means symbolic representations of analog electric or
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`electronic circuits from which the physical structure of a chip is directly derived.
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`4.
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`CONFIDENTIAL - OUTSIDE ATTORNEYS ' EYES ONLY: This designation
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`shall be reserved for information that is believed to be unknown to the opposing party or parties,
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`or to the employees of a corporate party. For the purposes of this order, so-designated information
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`includes but is not limited to product development information, design information, testing
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`information, technical specifications, technical descriptions, non-public financial information,
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`pricing information, non-public product marketing information, customer identification data,
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`certain study methodologies, and related communications.
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`Information may be designated
`
`2
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`Case 1:19-cv-01937-RGA Document 20 Filed 03/06/20 Page 3 of 27 PageID #: 534Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 15 of 39 PageID #: 6840
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`CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY if it was maintained in confidence
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`by the Producing Party and disclosed, if at all, pursuant to an understanding of non-disclosure
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`whether set forth in a written confidentiality agreement or otherwise.
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`5.
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`"CONFIDENTIAL- OUTSIDE ATTORNEYS ' EYES ONLY SOURCE CODE"
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`Material: CONFIDENTIAL INFORMATION that includes, describes, or otherwise discloses
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`Source Code and Chip-Level Schematics that constitute proprietary technical or commercially
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`sensitive competitive information that the Producing Party maintains as highly confidential in its
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`business, the disclosure of which is likely to cause harm to the competitive position of the
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`Producing Party. This includes Source Code and Chip-Level Schematics in the Producing Party's
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`possession, custody, or control, and made available for inspection by the Producing Party.
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`6.
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`"Designated Source Code Material":
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`material
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`that
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`1s
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`designated
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`"CONFIDENTIAL - OUTSIDE ATTORNEYS' EYES ONLY SOURCE CODE" under this
`
`Protective Order.
`
`7.
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`"Personnel Retained by a Receiving Party in this Action" means any consultants,
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`experts, or outside counsel (including their support staff) that have been and continue to be retained
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`by a Receiving Party in this action. For the sake of clarity, any person who was retained by a
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`Receiving Party in this action will no longer fall under this definition if that person ceases to be
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`retained by a Receiving Party in this action.
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`8.
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`"Party" means any Party to the above-captioned action, including all of its officers,
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`directors, employees, consultants, retained experts, and all support staff thereof.
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`9.
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`"Producing Party" means a party or non-party that discloses or produces
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`CONFIDENTIAL INFORMATION in the above-captioned actions. The "Producing Party" shall
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`include but is not limited to the Party who serves the documents on the Receiving Party as well as
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`the designating party whose CONFIDENTIAL INFORMATION is reflected therein.
`
`10.
`
`"Receiving Party" a Party that receives CONFIDENTIAL INFORMATION from
`
`a Producing Party in the above-captioned actions.
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`11.
`
`"Authorized Reviewer(s)"
`
`shall mean persons
`
`authorized
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`to
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`review
`
`3
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`

`

`
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`Case 1:19-cv-01937-RGA Document 20 Filed 03/06/20 Page 4 of 27 PageID #: 535Case 1:19-cv-01937-MFK-JLH Document 102 Filed 05/05/21 Page 16 of 39 PageID #: 6841
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`CONFIDENTIAL INFORMATION material in accordance with this Protective Order.
`
`12.
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`"Counsel of Record": (i) Outside counsel who appears on the pleadings, or has
`
`entered an appearance in this action, as counsel for a Party, and (ii) partners, principals, counsel,
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`associates, employees, and contract attorneys of such Outside counsel to whom it is reasonably
`
`necessary to disclose the information for this litigation, including supporting personnel employed
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`by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks and shorthand
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`reporters.
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`13.
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`"Outside Consultant": a person with specialized knowledge or experience in a
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`matter pertinent to the litigation who has been retained by Counsel of Record to serve as an expert
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`witness or a litigation consultant in this action (including any necessary support personnel of such
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`person to whom disclosure is reasonably necessary for this litigation), and who is not a current
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`employee of a Party or of a competitor of a Party and who, at the time of retention, is not anticipated
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`to become an employee of, or a non-litigation consultant of a Party or Competitor of a Party.
`
`14.
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`"Professional Vendors": persons or entities that provide litigation support services
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`( e.g., photocopying; videotaping; translating; designing and preparing exhibits, graphics, or
`
`demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and their
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`employees and subcontractors who have been retained or directed by Counsel of Record in this
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`action, and who are not current employees of a Party or competitors of a Party, and who, at the
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`time of retention, are not anticipated to become employees of a Party or competitor of a Party.
`
`This definition includes ESI vendors, and professional jury or trial consultants retained in
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`connection with this litigation to assist a Party, Counsel of Record, or any Outside Consultant in
`
`their work. Professional vendors do not include consultants who fall within the definition of
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`Outside Consultant.
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`II.
`
`SCOPE