Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 1 of 41 PageID #: 3699
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 20-1580 (LPS)
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`)))))))))
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`Defendant.
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`STIPULATED PROTECTIVE ORDER
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`GUARDANT HEALTH, INC.,
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`Plaintiff,
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`v.
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`FOUNDATION MEDICINE, INC.,
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`WHEREAS, pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, Plaintiff
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`Guardant Health, Inc. (“Guardant”) and Defendant Foundation Medicine, Inc. (“Foundation”)
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`(collectively, “the Parties”) have stipulated and agreed to the terms and entry of this Stipulated
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`Protective Order (the “Order”);
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`WHEREAS, because this Order is issued to facilitate discovery under the Local Rules of
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`this Court and the Federal Rules of Civil Procedure, unless modified pursuant to the terms
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`contained herein, this Order shall remain in effect through the conclusion of this lawsuit;
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`WHEREAS, documents and testimony containing confidential, proprietary business
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`information, and/or trade secrets (“Confidential Information”), as well as protected health
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`information subject to state or federal privacy laws (e.g., the Health Insurance Portability and
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`Accountability Act of 1996 (“HIPAA”) or other applicable personal information protection laws,
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`that bear significantly on the Parties’ claims or defenses are likely to be disclosed or produced
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`during the course of discovery in this lawsuit;
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`WHEREAS, counsel for a Party receiving Confidential Information may at the time of
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`production lack sufficient information to accept the representations made by the producing Party
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 2 of 41 PageID #: 3700
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`or non-Party as to the confidential, proprietary, and/or trade secret nature of such Confidential
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`Information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance
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`with Federal Rule of Civil Procedure 26(c) and, with respect to any individually identifiable or
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`otherwise protected health information subject to HIPAA, a HIPAA “qualified protective order”
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`in accordance with 45 C.F.R. §164.512(e)(1)(ii)(B) & (v) that authorizes and orders the parties to
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`produce responsive health information in discovery subject to the limitations set forth herein; and
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`WHEREAS, the Parties wish to protect their respective interests and the interests of non-
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`parties, and to facilitate the production of discovery in this Action (as defined below); now
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`therefore,
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`IT IS HEREBY STIPULATED AND AGREED, subject to the approval and order of the
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`Court, as follows:
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`1.
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`PURPOSES AND LIMITATIONS
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`The Parties assert that they may possess confidential information in the form of trade
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`secrets or other confidential business, personal and/or technical information related to the subject
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`matter of this Litigation (as defined below). The Parties recognize that it may be necessary to
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`disclose certain of the asserted confidential information during the course of this Litigation. As a
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`result, the Parties desire to limit disclosure and prevent use of such confidential information for
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`purposes other than the prosecution and defense of this Litigation. In addition, the Parties
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`contemplate that non-parties may produce confidential information.
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`This Order shall apply to all information, documents, and things within the scope of
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`discovery in this Litigation that are in the possession or custody of, or are owned or controlled by
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`the Parties or third parties, including but not limited to documents and things responsive to
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`requests for production of documents and things under Federal Rule of Civil Procedure 34
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`(including business records produced pursuant to Federal Rule of Civil Procedure 33(d));
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`answers to interrogatories under Federal Rule of Civil Procedure 33; responses to requests for
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`admission under Federal Rule of Civil Procedure 36; testimony provided at deposition pursuant
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`to Federal Rule of Civil Procedure 30 or 31; testimony provided at any hearing in this Litigation;
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`documents and things responsive to, and testimony provided pursuant to any subpoena issued in
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`this Litigation under Federal Rule of Civil Procedure 45; and documents, things, testimony, or
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`other information obtained through discovery from foreign third parties, including but not
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`limited to such discovery taken under the Hague Convention on the Taking of Evidence Abroad
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`in Civil or Commercial Matters.
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`2.
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`DEFINITIONS
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`a.
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`Designated Material: The term “Designated Material” shall mean and refer to all
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`information and material subject to this Order that constitutes or contains a trade secret or other
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`confidential information, including but not limited to non-public research, development,
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`technical, business, commercial or financial information, marketing plans, customer lists, vendor
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`lists and proposals, pricing and cost data, business plans, user information, and all information,
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`documents, and things referring or relating to the foregoing, including copies, abstracts, and
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`summaries of the same. “Designated Material” includes “CONFIDENTIAL INFORMATION,”
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`“OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION,” and “OUTSIDE ATTORNEYS’
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`EYES ONLY INFORMATION – SOURCE CODE” as those terms are defined below. The
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`scope of this Order shall be understood to encompass not only Designated Material that is
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`expressly designated as “CONFIDENTIAL INFORMATION,” “OUTSIDE ATTORNEYS’
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`EYES ONLY
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`INFORMATION,”
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`or
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`“OUTSIDE ATTORNEYS’ EYES ONLY
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`INFORMATION – SOURCE CODE,” but also any information copied therefrom, and all
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`copies, excerpts, and summaries thereof, as well as testimony and oral conversations which
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`reveal that information.
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`b.
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`Discovery Material: The term “Discovery Material” shall mean any document (as
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`defined below), material, item, testimony, information, or thing filed with or presented to the
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`Court or produced, disclosed, served, or generated in connection with the discovery process or
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`Federal Rule 26(a) disclosures in this Litigation, including without limitation, for example, initial
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`disclosures; exhibits; answers to interrogatories; responses to requests for admissions; responses
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`to requests for production; expert reports; subpoenas; declarations; affidavits; and deposition
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`testimony or transcripts; and all copies, extracts, summaries, compilations, presentation by
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`parties or counsel to or in court, designations, and portions thereof. This shall also include
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`Discovery Material, defined in the same way as above, from Guardant Health, Inc. v.
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`Foundation Medicine, Inc., No. 17-cv-01616-LPS-CJB.
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`c.
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`Confidential Information: The term “CONFIDENTIAL INFORMATION” means
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`information or material that a designating Party believes, in good faith, embodies, contains or
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`reflects confidential information or material that is used by the designating Party in, or pertaining
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`to, its business, which information or material is not generally known and which the designating
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`Party would normally not reveal to third parties, including but not limited to confidential
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`research, development, commercial, proprietary, technical, business, financial, sensitive or
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`private information or material.
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`d.
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`Outside Attorneys’ Eyes Only Information: The term “OUTSIDE ATTORNEYS’
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`EYES ONLY INFORMATION” means “CONFIDENTIAL INFORMATION” of a sufficiently
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`sensitive nature that a designating Party determines, in good faith, is likely to cause significant
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 5 of 41 PageID #: 3703
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`competitive harm to its existing or prospective commercial relationships if disclosed to third
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`parties or select employees or agents of the Receiving Party, or harm the interests of individuals
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`(e.g., research subjects or patients) who are not parties to this litigation. Such information shall
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`include, but is not limited to, unpublished pending domestic or foreign patent applications; non-
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`public financial, marketing, strategic, organizational, operational or competitive information;
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`highly sensitive technical information relating to the design, development, research, testing and
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`production of products; trade secrets; and protected health information that any Party is required
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`by law or agreement to maintain in confidence consistent with HIPAA, as amended, and its
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`implementing regulations, as well as any similar state laws or regulations governing the use or
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`disclosure of individually identifiable health or personal information.
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`e.
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`Outside Attorneys’ Eyes Only Information – Source Code: The term “OUTSIDE
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`ATTORNEYS’ EYES ONLY INFORMATION – SOURCE CODE” means “OUTSIDE
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`ATTORNEYS’ EYES ONLY INFORMATION” constituting source code that defines or
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`otherwise describes in detail the algorithms or structure of software or hardware designs. Source
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`code includes computer code, scripts, assembly, binaries, object code, source code listings,
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`object code listings and descriptions of object code, and similarly sensitive implementation
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`details, e.g., technical design documentation, that are afforded the same level of protection as
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`source code in the ordinary course of business.
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`f.
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`Document: The term “Document” shall mean every means of recording any form
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`of communication or representation upon any tangible thing, including letters, words, pictures,
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`sounds, or symbols, or combinations thereof, whether recorded by handwriting, printing,
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`photostatic, or photographic means, magnetic impulse, tape, computer disk, CD-ROM or any
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`other form of data storage, data compilation, or mechanical or electronic recording, and all other
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`tangible things which come within the meaning of “document” or “tangible thing” contained in
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`Rule 34 of the Federal Rules of Civil Procedure. This shall also include Documents, defined in
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`the same way as above, from Guardant Health, Inc. v. Foundation Medicine, Inc., No. 17-cv-
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`01616-LPS-CJB.
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`g.
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`Outside Counsel: The term “outside counsel” means attorneys who are not
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`employees of a Party to this Litigation but are retained to represent or advise a Party to this
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`Litigation and have appeared in this Litigation on behalf of that Party or are affiliated with a law
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`firm which has appeared on behalf of that Party.
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`h.
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`Party: The term “Party” means any party to this Litigation including all of its
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`officers, directors and employees, and (other than its outside legal counsel) consultants.
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`i.
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`Producing Party: The term “Producing Party” shall mean any Party to this
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`Litigation or any third party, including its counsel, retained experts, directors, officers,
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`employees, or agents, who produces any Discovery Material during discovery in connection with
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`this Litigation.
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`j.
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`Receiving Party: The term “Receiving Party” shall mean any Party to this
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`Litigation, including its counsel, retained experts, directors, officers, employees, or agents, who
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`receives any Discovery Material from a Producing Party.
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`k.
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`Litigation/Action: The terms “Litigation” and “Action” shall mean the above-
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`captioned case (No. 20-cv-01580-LPS) in the United States District Court for the District of
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`Delaware, including any appeals therefrom.
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 7 of 41 PageID #: 3705
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`3.
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`RELATED PROCEEDINGS
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`The Parties agree that all Discovery Material and Documents produced in Guardant
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`Health, Inc. v. Foundation Medicine, Inc., No. 17-cv-01616-LPS-CJB, in the United States
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`District Court for the District of Delaware may be used in this Litigation, subject to the
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`limitations set forth in this Order.
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`4.
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`PROCEDURE FOR MARKING PRODUCED DOCUMENTS
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`Copies of documents produced in this Litigation, whether pursuant to a formal discovery
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`request or otherwise, shall bear a unique identifying number, except such unique identifying
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`number is not required when documents are produced only for inspection.
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`5.
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`CATEGORIES OF DESIGNATED MATERIAL
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`a.
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`Types. Any Producing Party may mark Designated Material as follows and
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`pursuant to the procedures set forth in Section 5 below: (i) if containing “CONFIDENTIAL
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`INFORMATION,” by marking the Designated Material “CONFIDENTIAL”; (ii) if containing
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`“OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION,” by marking the Designated
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`Material “OUTSIDE ATTORNEYS’ EYES ONLY”: or (iii) if containing “OUTSIDE
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`ATTORNEYS’ EYES ONLY INFORMATION – SOURCE CODE,” by marking the Designated
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`Material “OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” if the Producing Party
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`reasonably believes in good faith that the Designated Material meets the requirements of
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`Paragraph 2(c), 2(d), or 2(e), above.
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`b.
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`Additional Categories. The Parties may agree to add additional categories of
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`Designated Material
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`(in addition
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`to CONFIDENTIAL
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`INFORMATION, OUTSIDE
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`ATTORNEYS’ EYES ONLY INFORMATION, and OUTSIDE ATTORNEYS’ EYES ONLY
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`INFORMATION – SOURCE CODE) from time to time as may be necessary or appropriate. If
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`the Parties cannot resolve the issue of whether this Order should be amended to include the
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`proposed new category of Designated Material, the dispute may be submitted to the Court via the
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`assigned district judge’s procedures for the raising of such matters. Disclosure of the Discovery
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`Material, however, shall still be made, but with the highest level of confidentiality available
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`under this Order, pending resolution of the objection by the Parties or the Court, as the case may
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`be.
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`6.
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`PROCEDURE FOR MARKING DESIGNATED MATERIAL
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`Marking Designated Material as CONFIDENTIAL, OUTSIDE ATTORNEYS’ EYES
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`ONLY, or OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE shall be made by the
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`Producing Party in the following manner:
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`a.
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`In the case of documents or any other tangible thing produced, designation shall
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`be made by placing the legend “CONFIDENTIAL,” “OUTSIDE ATTORNEYS’ EYES ONLY,”
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`or “OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” on each page of the document
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`or on the cover or in a prominent place on any other tangible thing prior to production of the
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`document or tangible thing;
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`b.
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`In the case of electronically stored information (“ESI”), (i) digital image files,
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`such as TIFFs, will be marked by the Producing Party with the appropriate designation on each
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`viewable page or image, and (ii) native documents and databases will be marked by the
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`Producing Party with the appropriate designation using a naming convention that conveys its
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`confidentiality status, or some other appropriate means to communicate the confidential nature of
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`the ESI that is agreed upon by the Parties;
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`c.
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`In producing original files and records for inspection, no marking need be made
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`by the Producing Party in advance of the inspection. For the purposes of the inspection, all
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`documents produced shall be considered as marked “OUTSIDE ATTORNEYS’ EYES ONLY.”
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`Thereafter, upon selection of specified documents for copying by the Receiving Party, the
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`Producing Party shall mark as “CONFIDENTIAL”, “OUTSIDE ATTORNEYS’ EYES ONLY”,
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`or “OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” the copies of such documents
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`as may contain confidential information at the time the copies are produced to the Receiving
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`Party;
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`d.
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`Any individual response to written interrogatories or requests for admissions or
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`any expert report that contains or constitutes Designated Material shall be labeled or marked by
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`the Producing Party as “CONFIDENTIAL,” “OUTSIDE ATTORNEYS’ EYES ONLY,” or
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`“OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” as the case may be, at the time it
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`is provided or disclosed to the Receiving Party, by indicating either at the outset of the document
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`embodying the response or in the body of each individual response, the designation applicable to
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`each response. With respect to responses to written interrogatories or requests for admissions
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`already served in this Litigation, the outside counsel for the respective Parties shall exchange
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`letters within 10 business days following entry of this Order identifying the designation, if any,
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`applicable to each; these materials shall be treated as if marked as “OUTSIDE ATTORNEYS’
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`EYES ONLY” until such designations are provided. Any document or thing created (e.g., any
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`abstract, summary, memorandum, or exhibit) containing Designated Material subject to this
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`Order, shall likewise be marked or labeled as “CONFIDENTIAL,” “OUTSIDE ATTORNEYS’
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`EYES ONLY,” or “OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” as the case
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`may be; and
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`e.
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`In the case of deposition testimony, transcripts or portions thereof, designation
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`shall be made by any Party either (i) orally on the record during the deposition, in which case the
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`portion of the transcript of the designated testimony shall be bound in a separate volume and
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`marked “CONFIDENTIAL,” “OUTSIDE ATTORNEYS’ EYES ONLY,” or “OUTSIDE
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`ATTORNEYS’ EYES ONLY – SOURCE CODE” by the reporter, as the Party may direct, or
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`(ii) by captioned, written notice to the reporter and all counsel of record, given within ten (10)
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`business days after receipt of the official transcript. All counsel receiving such notice shall be
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`responsible for marking the copies of the designated transcript or portion thereof in their
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`possession or control as directed by the Party or deponent. Pending expiration of the ten (10)
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`business days, all Parties and, if applicable, any third party witnesses or attorneys, shall treat the
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`deposition transcript as if it had been designated “OUTSIDE ATTORNEYS’ EYES ONLY
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`INFORMATION.” If the deposition is videotaped, the video technician shall mark the original
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`and all copies of the videotape to indicate that the contents of the videotape are subject to this
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`Order, substantially along the lines of “This videotape contains confidential testimony used in
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`this case. Its contents may not be viewed, displayed, or revealed except by order of the Court or
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`pursuant to written stipulation of the Parties.” No person shall attend the designated portions of
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`such depositions unless such person is an authorized recipient of Designated Material (based on
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`the designation of such Designated Material) under the terms of this Order.
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`7.
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`UNINTENTIONAL FAILURE TO DESIGNATE
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`If, through inadvertence, a Producing Party provides any Designated Material pursuant to
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`this Litigation without designating or marking the Designated Material as CONFIDENTIAL,
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`OUTSIDE ATTORNEYS’ EYES ONLY, or OUTSIDE ATTORNEYS’ EYES ONLY –
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`SOURCE CODE, or fails to designate or mark materials correctly, this does not, standing alone,
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`waive the Producing Party’s right to secure protection under this Order. The Producing Party
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`may subsequently inform the Receiving Party of the confidential nature of the disclosed
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`Designated Material, and the Receiving Party shall treat the disclosed Designated Material as
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`CONFIDENTIAL
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`INFORMATION,
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`OUTSIDE
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`ATTORNEYS’
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`EYES
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`ONLY
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`INFORMATION, or OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION – SOURCE
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`CODE, as the case may be, upon receipt of written notice from the Producing Party, to the extent
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`the Receiving Party has not disclosed this Designated Material. Disclosure of such Designated
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`Material to persons not authorized to receive that material prior to receipt of the confidentiality
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`designation shall not be deemed a violation of this Order. However, in the event the material has
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`been distributed in a manner inconsistent with the categorical designation, the Receiving Party
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`will take the steps necessary to conform distribution to the categorical designation, i.e., by
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`retrieving all copies of the Designated Material, or notes or extracts thereof, in the possession of
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`the persons not authorized under this Order to possess such Designated Material and advising the
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`person to whom disclosure was made that the material is confidential and should be treated as
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`provided in the Order.
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`8.
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`CONTESTING THE DESIGNATION
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`a.
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`No Party to this Litigation shall be obligated to challenge the propriety of any
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`designation by any Producing Party at the time the designation is made, and a failure to do so
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`shall not constitute a waiver or in any way preclude a subsequent challenge thereto unless a
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`prompt challenge to a Producing Party’s confidentiality designation is necessary to avoid
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`foreseeable, substantial unfairness, unnecessary economic burdens, or a later significant
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`disruption or delay of the Litigation.
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`b.
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`A Party may contest a claim of confidentiality. Such Party objecting to the
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`designation of any Discovery Material as Designated Material, such as CONFIDENTIAL
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`INFORMATION, OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION, or OUTSIDE
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`ATTORNEYS’ EYES ONLY INFORMATION – SOURCE CODE, must give outside counsel
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`for the Producing Party written notice that specifically identifies the documents or information
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`that the objecting Party contends should be differently designated and the grounds for the
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`objection. Outside counsel for the objecting Party and outside counsel for the Producing Party
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`are to then meet and confer in person, in writing, or by telephone in an effort to resolve the
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`contested designation. Failing resolution after service of the written notice of its reasons for the
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`objection, the Producing Party may, via the assigned district judge’s procedures for the raising of
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`such matters, seek an order changing or removing the designation. In the resolution of such
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`matter, the burden of establishing confidentiality shall be on the Party who made the claim of
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`confidentiality, i.e., the Producing Party, but information designated as CONFIDENTIAL
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`INFORMATION, OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION, or OUTSIDE
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`ATTORNEYS’ EYES ONLY INFORMATION – SOURCE CODE shall be deemed as such
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`until the matter is resolved.
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`9.
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`ACCESS TO DESIGNATED MATERIAL
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`a.
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`Basic Principles. A Receiving Party is authorized under this Order to use
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`Designated Material that is disclosed by another Party or by a non-Party in connection with this
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`case only for prosecuting, defending or attempting to settle this Litigation. Such Designated
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`Material may be disclosed only to those categories of persons and under the conditions described
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`in this Order.
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`Designated Material must be stored and maintained by a Receiving Party at a location
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`and in a secure manner that ensures that access is limited to the persons authorized under this
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`Order.
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`b.
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`Disclosure of “CONFIDENTIAL INFORMATION.” Designated Material marked
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`“CONFIDENTIAL” may be disclosed only to:
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`i.
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`ii.
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`any employee of the Producing Party;
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`any former counsel or employee of the Producing Party who was involved
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`with the matters to which the “CONFIDENTIAL INFORMATION” relates or refers;
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`iii.
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`the Court, its technical advisors (if appointed), its personnel, and the jury
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`in this Litigation;
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`iv.
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`the Receiving Party’s outside counsel, its staff, and its commercial
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`copying vendors, data processing vendors, electronic discovery vendors, and/or database
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`services;
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`v.
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`no more than two 2 in house counsel of the Receiving Party to whom
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`disclosure is reasonably necessary for this Litigation and who have signed the undertaking
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`attached as EXHIBIT A agreeing to be bound by the terms of this Order;
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`vi.
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`court reporters and videographers engaged for depositions, inspections,
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`and other proceedings in this Litigation;
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`vii.
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`subject to Paragraph 10, approved persons or entities engaged by a Party
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`or counsel as consultants, experts, translators, or interpreters to consult, testify, translate, or
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`interpret in the case, excluding employees, officers or directors of a named Party or of any
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`parent, subsidiary, or affiliate of any named Party, and provided that, prior to receiving
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`“CONFIDENTIAL INFORMATION,” such persons or entities execute an undertaking in the
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`form attached as EXHIBIT A agreeing to be bound by the terms of this Order;
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`viii.
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`persons or entities engaged by a Party or counsel for a Party to provide
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`jury or trial consulting services, provided that, prior to receiving “CONFIDENTIAL
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 14 of 41 PageID #: 3712
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`INFORMATION,” such persons or entities execute an undertaking in the form attached as
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`EXHIBIT A, agreeing to be bound by the terms of this Order;
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`ix.
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`mock jurors or focus group members, provided that, prior to receiving
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`“CONFIDENTIAL INFORMATION,” such persons execute an undertaking in the form attached
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`as EXHIBIT B, agreeing to be bound by the terms of this Order; and
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`x.
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`persons or entities engaged by a Party or counsel for a Party to prepare
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`graphic or visual aids, or demonstrative exhibits, provided
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`that, prior
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`to receiving
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`“CONFIDENTIAL INFORMATION,” such persons or entities execute an undertaking in the
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`form attached as EXHIBIT A, agreeing to be bound by the terms of this Order.
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`c.
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`Disclosure of “OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION.”
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`Designated Material marked “OUTSIDE ATTORNEYS’ EYES ONLY” may be disclosed only
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`to:
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`i.
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`the Receiving Party’s outside counsel, its staff, and its commercial
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`copying vendors, data processing vendors, electronic discovery vendors, and/or database
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`services;
`
`ii.
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`any person who (a) appears on the face of the Designated Material marked
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`“OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION” as an author, addressee, or
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`recipient thereof, or (b) is a witness during a deposition, court hearing, or trial where specific
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`documentary or testimonial evidence establishes that such person authored or received the
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`Designated Material marked “OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION” prior
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`to its production or disclosure in this Litigation;
`
`iii.
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`the Court, its technical advisors (if appointed), its personnel, and the jury
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`in this Litigation;
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`
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 15 of 41 PageID #: 3713
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`
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`iv.
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`court reporters and videographers engaged for depositions, inspections,
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`and other proceedings in this Litigation;
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`v.
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`subject to Paragraph 10, approved persons or entities engaged by a Party
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`or counsel as consultants, experts, translators, or interpreters to consult, testify, translate or
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`interpret in the case, excluding employees, officers or directors of a named Party or of any
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`parent, subsidiary, or affiliate of any named Party, and provided that, prior to receiving
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`“OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION,” such persons or entities execute
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`an undertaking in the form attached as EXHIBIT A agreeing to be bound by the terms of this
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`Order;
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`vi.
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`persons or entities engaged by a Party or counsel for a Party to provide
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`jury or trial consulting services, provided that, prior to receiving “OUTSIDE ATTORNEYS’
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`EYES ONLY INFORMATION,” such persons or entities execute an undertaking in the form
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`attached as EXHIBIT A, agreeing to be bound by the terms of this Order;
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`vii.
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`mock jurors or focus group members, provided that, prior to receiving
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`“CONFIDENTIAL INFORMATION,” such persons execute an undertaking in the form attached
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`as EXHIBIT B, agreeing to be bound by the terms of this Order; and
`
`viii.
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`persons or entities engaged by a Party or counsel for a Party to prepare
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`graphic or visual aids, or demonstrative exhibits, provided that, prior to receiving “OUTSIDE
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`ATTORNEYS’ EYES ONLY INFORMATION,” such persons or entities execute an
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`undertaking in the form attached as EXHIBIT A, agreeing to be bound by the terms of this
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`Order.
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`
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 16 of 41 PageID #: 3714
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`
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`d.
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`Disclosure of “OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION –
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`SOURCE CODE”: Designated Material marked “OUTSIDE ATTORNEYS’ EYES ONLY–
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`SOURCE CODE” (“Source Code”) may be disclosed only to:
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`and staff;
`
`i.
`
`ii.
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`jury in this litigation;
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`the Receiving Party’s outside counsel, including both the firm’s attorneys
`
`the Court, its technical advisor (if one is appointed), its personnel, and the
`
`iii.
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`court reporters and videographers engaged for depositions, inspections,
`
`and other proceedings in the above captioned cases. Court reporters and/or videographers shall
`
`not retain or be given copies of any portions of the Source Code. If used during a deposition, the
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`deposition record will identify the exhibit by its production numbers;
`
`iv.
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`subject to Paragraph 10, up to 3 outside experts or consultants and their
`
`staff engaged by a Party to consult or testify, excluding employees, officers or directors of a
`
`named Party or of any parent, subsidiary, or affiliate of any named Party, and provided that, prior
`
`to receiving “OUTSIDE ATTORNEYS’ EYES ONLY INFORMATION – SOURCE CODE,”
`
`such persons or entities execute an undertaking in the form attached as EXHIBIT A agreeing to
`
`be bound by the terms of this Order; and
`
`v.
`
`persons or entities engaged by a Party or counsel for a Party to prepare
`
`graphic or visual aids, or demonstrative exhibits, provided that, prior to receiving “OUTSIDE
`
`ATTORNEYS’ EYES ONLY INFORMATION – SOURCE CODE,” such persons or entities
`
`execute an undertaking in the form attached as EXHIBIT A, agreeing to be bound by the terms
`
`of this Order.
`
`
`
`
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 17 of 41 PageID #: 3715
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`
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`10.
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`CONDITIONS ON ACCESS TO DESIGNATED MATERIAL
`
`a.
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`Consultants and Experts. Prior to a Receiving Party giving, showing, disclosing,
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`making available or communicating Designated Material to any expert or consultant under
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`Paragraph 8(b)(vii), 9(c)(v) or Paragraph 8(d)(iv), the Receiving Party shall serve a written
`
`notice on the Producing Party that includes:
`
`i.
`
`ii.
`
`iii.
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`the person’s name and business address;
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`the person’s present employer and title (along with a job description);
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`a list of the cases in which the person has testified at deposition or trial
`
`and all companies with which the person has consulted or by which the person has been
`
`employed for the past five years;
`
`iv.
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` any previous or current relationship (personal or professional) with any of
`
`the Parties;
`
`v.
`
`all companies for which the person has consulted or by which the person
`
`has been employed, within the past five years, the years of such consulting or employment, and a
`
`brief description of the work performed (In the event such proposed expert or consultant is
`
`prohibited due to confidentiality obligations to a non-Party from disclosing a present or prior
`
`employment or consultancy, the expert or consultant shall so state and shall in that case disclose
`
`such information as the expert or consultant is permitted to provide regarding the nature of the
`
`employment or consultancy (such as, e.g., the industry or technology involved in that
`
`employment or consultancy; whether the employment or consultancy was for a competitor of a
`
`Party; and like information) to enable, to the extent possible, the Producing Party to determine
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`whether or not to object to the expert or consultant);
`
`
`
`
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`Case 1:20-cv-01580-LPS Document 25 Filed 02/23/21 Page 18 of 41 PageID #: 3716
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`
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`vi.
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`the person’s up-to-date curriculum vitae or resume (if the up-to-date
`
`curriculum vitae or resume of the expert or consultant provides the preceding information then
`
`the information need not be separately provided); and
`
`vii.
`
`a copy of the Acknowledgment of Protective Order, in the form attached
`
`as EXHIBIT A, signed by the proposed expert or consultant agreeing to be bound by the terms of
`
`this Order.
`
`b.
`
`Objections to Proposed Consultants and Experts. The Producing Party shall be
`
`entitled to obj