Case 1:20-cv-00371-LPS Document 89 Filed 07/16/21 Page 1 of 33 PageID #: 2918
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF DELAWARE
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`FINJAN LLC,
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`Plaintiff,
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`v.
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`TRUSTWAVE HOLDINGS, INC., and
`SINGAPORE TELECOMMUNICATIONS
`LIMITED,
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`Defendants.
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`C.A. No. 20-371-LPS
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`PROTECTIVE ORDER GOVERNING THE DESIGNATION AND
`HANDLING OF CONFIDENTIAL MATERIALS
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`To expedite the flow of discovery material, to facilitate the prompt resolution of disputes
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`over confidentiality of discovery materials, to adequately protect information the parties are
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`entitled to keep confidential, to ensure that only materials the parties are entitled to keep
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`confidential are subject to such treatment, and to ensure that the parties are permitted reasonably
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`necessary uses of such materials in preparation for and in the conduct of trial, it is hereby
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`ORDERED THAT:
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`1.
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`DEFINITIONS. The terms defined in this Section 1 and parenthetically elsewhere
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`shall, throughout this Order, have the meanings provided. Defined terms may be used in the
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`singular or plural.
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`1.1.
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`1.2.
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`The “Action” means the above-captioned litigation.
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`“Party” means a party to the Action, including all of its officers, directors,
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`employees, consultants, retained experts, and outside counsel (and their support staff).
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`1.3.
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`“Material” means all information, documents, testimony, and things
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`produced, served, or otherwise provided in this action by any Party or by any non-party.
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`1.4.
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`“Designated Material” means any Material
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`that
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`is designated
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`“CONFIDENTIAL,”
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`“CONFIDENTIAL – OUTSIDE COUNSEL ONLY,”
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`and/or
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`“RESTRICTED CONFIDENTIAL – SOURCE CODE” under this Order. Designated Material
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`shall not include advertising or other materials that have been actually published or publicly
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`disseminated.
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`1.5.
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`“Designating Party” means a Party or non-party that designates any
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`Material in productions, in disclosures, or in responses to discovery as “CONFIDENTIAL,”
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`“CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” and/or “RESTRICTED CONFIDENTIAL
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`– SOURCE CODE.”
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`1.6.
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`“Producing Party” means any Party or non-party that discloses or produces
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`Material in this Action.
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`1.7.
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`“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,
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`development, or commercial information that is maintained in confidence by the Designating Party
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`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
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`that unrestricted disclosure to others would create a substantial risk of serious injury.
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`1.10. “Restricted Confidential – Source Code Material” means extremely
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`sensitive “Confidential Material” representing “Source Code,” (defined below), disclosure of
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`which to another Party or Non-Party would create a substantial risk of serious harm that could not
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`be avoided by less restrictive means.
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`1.11. “Source Code” means computer instructions and data definitions expressed
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`in a form suitable for input to an assembler or compiler and associated comments and revision
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`histories to the extent such comments and revision histories are contained within the source code
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`itself.
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`1.12. “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, and (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.
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`1.13. “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 become
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`an employee of a Party or of a competitor of a Party.
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`1.14. “Professional Vendors” means any persons or entities that provide litigation
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`support services and their employees and subcontractors who have been retained or directed by
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`Counsel of Record in this action, and who are not current employees of a Party or of a competitor
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`of a Party and who, at the time of retention, are not anticipated to become employees of a Party or
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`Case 1:20-cv-00371-LPS Document 89 Filed 07/16/21 Page 4 of 33 PageID #: 2921
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`of a competitor of a Party. Litigation support services include but are not limited to: photocopying;
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`videotaping; translating; designing and preparing exhibits, graphics, or demonstrations;
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`organizing, storing, retrieving data in any form or medium; etc. Professional Vendors include ESI
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`vendors and professional jury or trial consultants retained in connection with this litigation.
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`Professional Vendors do not include consultants who fall within the definition of Outside
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`Consultant.
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`1.15. “Termination” means the dismissal of the Action (whether through
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`settlement or otherwise), or the entry of final judgment and expiration of all periods to appeal or
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`to seek judicial review of such judgment or dismissal.
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`1.16. “Affiliate” shall mean, with respect to any Party, any other entity
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`controlling, controlled by, or under common control with that Party. As used in this definition, the
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`term “control” means the ownership of more than fifty percent (50%) of the ownership or equity
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`interests of such entity.
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`1.17. “Patent-in-Suit” means U.S. Patent No. 8,141,154 (the “’154 Patent”) and
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`any other patent asserted in this Action, as well as any related patents, patent applications,
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`provisional patent applications, continuations, and/or divisionals.
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`2.
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`SCOPE
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`2.1
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`The protections conferred by this Order cover not only Designated Material
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`(as defined above), but also any information copied or extracted therefrom, as well as all copies,
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`excerpts, summaries, or compilations thereof. Nothing herein shall alter or change in any way the
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`discovery provisions of the Federal Rules of Civil Procedure, the Local Rules of this Court, or the
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`Court’s deadlines provided in any scheduling order or discovery order issued by the Court.
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`Identification of any individual pursuant to this Order does not make that individual available for
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`Case 1:20-cv-00371-LPS Document 89 Filed 07/16/21 Page 5 of 33 PageID #: 2922
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`deposition, or any other form of discovery outside of the restrictions and procedures of the Federal
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`Rules of Civil Procedure, the Local Rules of this Court, and the Court’s deadlines provided in any
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`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 Party’s
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`own disclosure or use of its own Designated Material for any purpose, and nothing in this Order
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`shall preclude any Producing Party from showing its Designated Material to an individual who
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`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
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`or by order of the Court.
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`3.
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`MATERIAL DESIGNATED “CONFIDENTIAL.” Any Designating Party may
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`designate as “CONFIDENTIAL” any Material that the party believes in good faith constitutes
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`Confidential Material. Unless otherwise ordered by the Court or permitted in writing by the
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`Designating Party, a Receiving Party may disclose any Material designated “CONFIDENTIAL”
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`only to:
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`(a)
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`Persons who appear on the face of the Designated Material as an author,
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`addressee, or recipient thereof;
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`(b)
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`Up to three (3) in-house employees of a Receiving Party (including a parent
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`or affiliate of a Receiving Party), and necessary secretarial staff, who are responsible for providing
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`oversight of or assistance in the litigation, provided that any such employee or staff has signed the
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`“Acknowledgement and Agreement To Be Bound By Protective Order” attached hereto as Exhibit
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`A, and provided an executed copy to the Producing Party prior to receiving any Designated
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`Material;
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`Case 1:20-cv-00371-LPS Document 89 Filed 07/16/21 Page 6 of 33 PageID #: 2923
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`(c)
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`(d)
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`Counsel of Record for the Designating Party or the Receiving Party;
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`Outside Consultants of the Receiving Party (including necessary employees
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`of the Outside Consultants) provided that disclosure is only to the extent necessary to perform such
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`work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions of
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`this Order by signing a copy of the “Acknowledgement and Agreement To Be Bound By Protective
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`Order” attached hereto as Exhibit A, and the “Certification Of Consultant” attached hereto as
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`Exhibit B, with the provisions of Section 6 being complied with prior to receiving any Designated
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`Material; (b) such expert or consultant is not a current officer, director, or employee of a Party or
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`of a competitor of a Party, nor anticipated at the time of retention to become an officer, director or
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`employee of a Party or of a competitor of a Party; and (c) no unresolved objections to such
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`disclosure exist after proper notice has been given to all Parties as set forth in Section 6 below;
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`(e) Witnesses at deposition and/or trial consistent with the provisions of Section
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`7 below, provided that such witnesses may not retain copies of Designated Material unless
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`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
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`appoint, and any Jury impaneled in the Action;
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`(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;
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`(h)
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`(i)
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`Action;
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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
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`(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
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`Case 1:20-cv-00371-LPS Document 89 Filed 07/16/21 Page 7 of 33 PageID #: 2924
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`Bound By Protective Order” attached hereto as Exhibit A; and
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`(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
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`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
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`Designating Party, Material designated as “CONFIDENTIAL – OUTSIDE COUNSEL ONLY”
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`shall be treated as Material designated as “CONFIDENTIAL” with the further restriction that it
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`shall not be disclosed to any person identified in Section 3(b) above.
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`Notwithstanding the foregoing, each Receiving Party may designate one (1) in-house
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`employee (including an employee of a parent or affiliate of a Receiving Party) to review damages
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`discovery responses, damages disclosures, and damages expert reports (together, “Damages
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`Materials”), provided that the designated employee has signed the “Acknowledgement and
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`Agreement To Be Bound By Protective Order” attached hereto as Exhibit A, and provided an
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`executed copy to the Producing Party prior to receiving any such Damages Materials.
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`5.
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`MATERIAL DESIGNATED “RESTRICTED CONFIDENTIAL – SOURCE
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`CODE.” Any Designating Party may designate as “RESTRICTED CONFIDENTIAL – SOURCE
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`CODE” any Material that the party believes in good faith constitutes Restricted Confidential –
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`Source Code Material. Unless otherwise ordered by the Court or permitted in writing by the
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`Designating Party, Material designated as “RESTRICTED CONFIDENTIAL – SOURCE CODE”
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`shall be treated as Material designated as “CONFIDENTIAL – OUTSIDE COUNSEL ONLY”
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`with the further restriction that (i) it shall not be disclosed to any person identified in Sections 3(b),
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`Case 1:20-cv-00371-LPS Document 89 Filed 07/16/21 Page 8 of 33 PageID #: 2925
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`3(g), 3(i) or 3(j) above; and (ii) such Material is subject to the provisions of Section 8 of this Order.
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`Inclusion of this designation in this order by no means constitutes an agreement that the inspection
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`or production of source code material is necessary or justified in this Action and by no means
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`waives any objection to another Parties’ request for production or request to inspect such source
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`code material.
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`6.
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`DISCLOSURE TO OUTSIDE CONSULTANTS. No disclosure of Designated
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`Material to Outside Consultants shall occur until the notice and resolution of objection procedures
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`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
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`Designating Party, which notice shall include: (a) the individual’s name and business title; (b)
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`business address; (c) business or profession; (d) the individual’s CV; (e) any previous or current
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`relationship (personal or professional) with any of the Parties or any entity that the either Receiving
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`Party or the Outside Consultant has reason to believe is an Affiliate of any of the Parties; (f) a list
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`of other cases in which the individual has testified (at trial or by deposition) within the last four
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`years; (g) a list of all companies with which the individual has consulted or by which the individual
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`has been employed within the last four years; and (h) a signed copy of the “Acknowledgement and
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`Agreement To Be Bound By Protective Order” attached as Exhibit A, and the “Certification Of
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`Consultant” attached hereto as Exhibit B.
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`6.2
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`Objections. The Designating Party shall have five (5) business days from
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`receipt of the notice specified in Section 6.1 to object in writing to such disclosure. Any such
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`objection must set forth in detail the grounds on which it is based. After the expiration of the 5-
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`day period, if no objection has been asserted, then Designated Material may be disclosed to the
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`Outside Consultant pursuant to the terms of this Order. However, if the Designating Party objects
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`within the 5-day period, the Receiving Party may not disclose Designated Material to the
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`challenged individual absent resolution of the dispute or Court Order. In the event the Designating
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`Party makes a timely objection, the parties shall promptly meet and confer to try to resolve the
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`matter by agreement. If the parties cannot reach an agreement, the Objecting Party may, within
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`three (3) business days following the meet and confer, file a motion for a protective order
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`preventing disclosure of Designated Material to the Outside Consultant (using the Court’s letter
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`brief dispute procedure). If the Objecting Party files a timely motion for a protective order,
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`Designated Material shall not be disclosed to the challenged individual until and unless a final
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`ruling allowing such disclosure is made by this Court, or by the consent of the Objecting Party,
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`whichever occurs first. If the Objecting Party fails to file a motion for a protective order within the
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`prescribed period, the 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)
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`witness, and/or Outside Consultant of a Producing Party may be shown at deposition and examined
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`on all Designated Material that has been produced by that Party;
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`7.2
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`A former director, officer, agent and/or employee of a Producing Party may
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`be shown at deposition and examined on all Designated Material that has been produced by that
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`Party and that the Receiving Party’s Outside Counsel reasonably and in good faith believes to have
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`been received by the witness previously or that refers to matters within the witness’s personal
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`knowledge pertaining to the period or periods of his or her employment, engagement, or
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`relationship with the Producing Party;
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`7.3
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`Non-parties may be shown at deposition and examined on any document
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`containing Designated Material of a Producing Party that appears on its face, or which the
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`Receiving Party’s Outside Counsel reasonably and in good faith believes based on other
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`documents or testimony, to have been received from or communicated to the non-party. Any
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`person other than the witness, his or her attorney(s), and any person qualified to receive Designated
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`Material under this Order, shall be excluded from the portion of the examination concerning such
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`information, unless the Producing Party consents to persons other than qualified recipients being
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`present at the examination. If the witness is represented by an attorney who is not qualified under
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`this Order to receive such information, then prior to the examination, the attorney shall be
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`requested to sign the “Acknowledgement and Agreement To Be Bound By Protective Order”
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`attached as Exhibit A. In the event that such attorney declines to sign the Acknowledgement and
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`Agreement To Be Bound By Protective Order prior to the examination, the parties, by their
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`attorneys, shall jointly seek a protective order from the Court prohibiting such attorney from
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`disclosing such Designated Material.
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`7.4
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`A witness who previously had access to a document designated
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`“CONFIDENTIAL,” “CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” or “RESTRICTED
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`CONFIDENTIAL – SOURCE CODE” but who is not under a present non-disclosure agreement
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`with the Producing Party that covers that document, may be shown the document at deposition if
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`the witness is advised on the record of the existence of the Protective Order and that the protective
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`order requires the parties to keep confidential any questions, testimony or documents that are
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`designated as “CONFIDENTIAL,” “CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” or
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`“RESTRICTED CONFIDENTIAL – SOURCE CODE.” The witnesses may not copy, take notes
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`on, or retain copies of any Designated Material used or reviewed at the deposition. The witness
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`may not take out of the deposition room any exhibit that is marked “CONFIDENTIAL”,
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`“CONFIDENTIAL – OUTSIDE COUNSEL ONLY” or “RESTRICTED CONFIDENTIAL –
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`SOURCE CODE.” The Producing Party of any Designated Material used at the deposition may
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`also require that the transcript and exhibits not be copied by a witness who is not subject to this
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`Order or his counsel who is not subject to this Order, that no notes may be made of the transcript
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`or the exhibits, and that the transcript and exhibits may only be reviewed by the witness in the
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`offices of one of the counsel representing a party in this case (or another firm acting for one of the
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`counsel representing a party in this case and under the supervision of one of the lawyers who is
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`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 as
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`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
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`knowledge.
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`7.6
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`Notwithstanding any sub-Section of this Section 7, no copies of Designated
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`Material may be provided to any deponent or trial witness other than for purposes of the
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`examination without the written consent of the Producing Party.
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`8.
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`PRODUCTION OF SOURCE CODE. This Section shall govern the production
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`of Source Code in this Action.
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`8.1
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`Source Code designated as “RESTRICTED CONFIDENTIAL – SOURCE
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`CODE” shall be made available for the Receiving Party’s inspection, only by outside Counsel of
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`Record representing the Receiving Party and Outside Consultants retained by the Receiving Party
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`who have been approved under Section 6 of this Protective Order.
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`(a)
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`Source Code designated as “RESTRICTED CONFIDENTIAL – SOURCE
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`CODE” shall be maintained by the Producing Party and made available for inspection by the
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`Receiving Party on one or two (2) stand-alone computers as needed for one or more experts (that
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`is, a computer not connected to any network, the Internet, or any peripheral device other than a
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`keyboard, mouse, and monitor) and produced in electronic and searchable form in a manner
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`consistent with how the code being produced is maintained in the ordinary course of business (e.g.,
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`with folder hierarchies preserved).
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`(b)
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`The stand-alone computers 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 to
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`which shall be controlled by reasonable physical (e.g., locked doors) and electronic (e.g., password
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`or other access provisions) security measures. Use of any input/output device (e.g., USB memory
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`stick, CDs, floppy disk, portable hard drive, etc.) is prohibited while accessing the computer
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`containing the Source Code, and the Receiving Party shall not attempt to use any peripheral device
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`of any kind (other than the keyboard, mouse, and monitor provided by the Producing Party) with
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`the stand-alone computers, nor shall the Receiving Party attempt to install any software on the
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`stand-alone computer. No person other than the Producing Party may alter, dismantle,
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`disassemble, or modify the Standalone Computer in any way, or attempt to circumvent any security
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`feature of the Standalone Computer.
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`(c)
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`The Producing Party shall install tools and software that are sufficient for
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`viewing and searching the code produced on the platform produced, including any tools provided
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`by the Receiving Party in accordance with the provisions and restrictions of this sub-paragraph of
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`this Section. The Receiving Party’s outside counsel and/or experts may request that additional
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`commercially available software tools for viewing and searching Source Code be installed on the
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`secured computer, provided, however, that (i) the Receiving Party provides such software tools (or
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`links to such software tools) to the Producing Party at least ten (10) days in advance of the date
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`upon which the Receiving Party wishes to have the software tool(s) available for use on the
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`standalone computer; (ii) the Receiving Party possesses an appropriate license to such software
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`tools; (iii) the Producing Party approves such software tools (such approval shall not be
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`unreasonably withheld); and (iv) such other software tools are reasonably necessary for the
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`Receiving Party to perform its review of the Source Code consistent with all of the protections
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`herein.
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`8.2
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`The Receiving Party shall make any request to inspect the Producing Party’s
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`Source Code a reasonable time in advance of its desired inspection, and in no event less than five
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`(5) court-days’ notice. Inspection of Source Code shall be permitted during regular business hours
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`(i.e., 9:00 a.m. – 6:00 p.m.), although the Parties will be reasonable in accommodating requests to
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`conduct inspections at other times. The Receiving Party shall be given access to the Source Code
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`Computers during the pendency of this case, as requested.
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`8.3
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`At the Producing Party’s selection, the secure location will be at an office
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`of the Producing Party’s Counsel of Record or at the offices of the Producing Party. The Producing
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`Party will endeavor to make a separate, private room available for the Receiving Party to confer
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`or talk on the phone.
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`8.4
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`No person shall copy, e-mail, transmit, upload, download, print,
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`photograph, or otherwise duplicate any portion of Source Code, or documents or things designated
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`“RESTRICTED CONFIDENTIAL – SOURCE CODE,” except as follows:
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`(a)
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`The stand-alone computer may be connected to a printer, or include a print
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`driver capable of printing electronic copies for temporary storage on the “stand-alone” computer
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`for subsequent printing by the Producing Party for the limited purposes set forth herein. The
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`Case 1:20-cv-00371-LPS Document 89 Filed 07/16/21 Page 14 of 33 PageID #: 2931
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`Receiving Party may request printouts of limited portions of Source Code that are reasonably
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`necessary for the preparation of court filings, pleadings, expert reports, or other papers, or for
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`deposition or trial, but shall not request paper copies for the purposes of reviewing the Source
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`Code other than electronically. The Receiving Party shall be permitted to request printouts that do
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`not exceed (1) 600 total pages of the Producing Party’s Source Code; or (2) twenty (20) or more
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`pages of a continuous block of Source Code. The Producing Party shall provide all such Source
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`Code in paper form including bates numbers and the label “RESTRICTED CONFIDENTIAL –
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`SOURCE CODE” within three (3) court days of the Receiving Party’s request, subject to
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`subsection (b), below. Each printed document shall indicate the full path and file name of the
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`printed file, and each line of the source code listing shall be separately numbered, provided that
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`the Receiving Party has supplied a software tool for viewing and searching Source Code pursuant
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`to Section 8.1(c) that includes such information on print outs.
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`(b)
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`If the Producing Party has any objection to the print-outs, the Producing
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`Party must object in writing within three (3) business days from the request for print-outs from the
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`Receiving Party. The Parties shall meet and confer in an attempt to reach a resolution within four
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`(4) business days of the Receiving Party’s objection. If no resolution can be reached, the Producing
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`Party must file a motion for Protective Order with the Court no later than five (5) business days
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`from the Parties reaching an impasse.
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`(c)
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`The Receiving Party shall not make any electronic copies or images, nor
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`more than three (3) additional paper copies, of any printed pages of Source Code or other
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`documents or things designated as “RESTRICTED CONFIDENTIAL – SOURCE CODE,”
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`without the agreement of the Producing Party or further order of the Court. Notwithstanding the
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`foregoing, nothing in this sub-Paragraph shall prevent a Party from making such additional hard
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`or electronic copies or images of limited excerpts necessary to prepare as exhibits to or include in
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`depositions, expert reports, court filings, or court presentations.
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`(d)
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`Each time a person accesses the Source Code on a stand-alone computer,
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`the person shall sign a sign-in sheet prior to, and a sign-out sheet subsequent to, accessing the
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`Source Code, including the name of the person, the date and time in and out, and whether any
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`print-outs were requested. It shall be the responsibility of the Producing Party to provide and
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`maintain the sign-in sheet.
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`(e)
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`For any “RESTRICTED CONFIDENTIAL – SOURCE CODE” material
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`used as a deposition exhibit, the exhibit shall be identified on the record, by Bates number or
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`otherwise. The Receiving Party shall retain the original of any such exhibit and shall provide a
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`copy of the original exhibit to the Producing Party at the deposition. No source code Exhibits shall
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`be retained by the Court reporter at the conclusion of the deposition or appended to the transcript
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`by the Court Reporter. At the conclusion of the deposition, the Producing Party will collect and
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`shred any other copies of the source code that may have been distributed at the deposition, with
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`the exception of the Parties’ working copy(ies).
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`(f)
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`A Receiving Party that wants to file or otherwise submit any Source Code,
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`or other documents or things designated as “RESTRICTED CONFIDENTIAL – SOURCE
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`CODE,” to the Court in connection with a filing may make only as many copies, and only of the
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`specific pages as needed, for submission to the Court and shall file any and all such copies of the
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`materials with an application to file under seal. Unless agreed to by the Producing Party, images
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`or copies of source code shall not be included in correspondence between the parties.
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`8.5
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`No devices with network or recording functionality or a camera are
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`permitted in the secure room containing the stand-alone Computer, so long as the Receiving Party
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`is provided a separate secure room to store such devices during the review. During its review of
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`Source Code made available for inspection, the Receiving Party may take notes. To the extent the
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`Receiving Party desires to take notes electronically, it may do so using a computer not connected
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`to any network, the Internet, or any peripheral device other than a keyboard, mouse, and monitor,
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`consistent with all of the protections herein. Any notes (whether electronic or non-electronic) shall
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`not include copies or reproductions of portions of the source code, but may contain filenames,
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`directory names, module names, class names, parameter names, variable names, function names,
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`method names, or procedure names. The Producing Party may not inspect or review the notes of
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`the Receiving Party or its consultants.
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`8.6
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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 Counsel
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`of Record for the Receiving Party; (ii) the offices of Outside Consultants who have been approved
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`to access “RESTRICTED CONFIDENTIAL – SOURCE CODE” materials; (iii) the site where
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`any deposition is taken; (iv) the Court; or (v) any intermediate location necessary to transport the
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`information to a hearing, trial, or deposition. Paper copies stored in locations (i) and (ii) shall be
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`maintained at all times in a locked and secure area.
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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 Within 60 days of final termination of the suit as to the Producing Party, the
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`Receiving Party shall return all hard (non-electronic) copies of Source Code or certify through
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`counsel with personal knowledge that all such copies have been destroyed.
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`9.
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`PROCEDURE FOR DESIGNATING MATERIAL. Subject to the limitations
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`set forth in this Order, a Designating Party may: designate as “CONFIDENTIAL” information that
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`the Designating Party believes, in good faith, meets the definition of Confidential Material set forth
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`in Section 1.8 above; designate as “CONFIDENTIAL – OUTSIDE COUNSEL ONLY”
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`information that it believes, in good faith, meets the definition of Confidential – Outside Counsel
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`Only Material set forth in Section 1.9 above; and designate as “RESTRICTED CONFIDENTIAL
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`– SOURCE CODE” information that it believes, in good faith, meets the definition of Restricted
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`Confidential – Source Code Material set forth i