Case 1:22-cv-00305-RGA-JLH Document 98 Filed 08/21/23 Page 1 of 43 PageID #: 4196
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
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`ROBOCAST, INC.,
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`Plaintiff,
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`v.
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`YOUTUBE, LLC and GOOGLE, LLC,
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`Defendants.
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`
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`ROBOCAST, INC.,
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`v.
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`NETFLIX, INC.,
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`Plaintiff and
`Counterclaim
`Defendant,
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`Defendant and
`Counterclaim
`Plaintiff.
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`
`
`
`
`
`
`
`
`Civil Action No. 1:22-cv-00304-
`RGA-JLH
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`JURY TRIAL DEMANDED
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`
`
`
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`Civil Action No. 1:22-cv-00305-
`RGA-JLH
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`JURY TRIAL DEMANDED
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`
`
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`STIPULATED PROTECTIVE ORDER
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`Plaintiff Robocast, Inc. (“Robocast” or “Plaintiff”) and Defendants YouTube, LLC
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`(“YouTube”), Google, LLC (“Google”) and Netflix, Inc. (“Netflix”) (collectively, “Defendants”),
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`each being referred to herein as a “party”, and recognizing that each may have confidential,
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`proprietary, and/or trade secret information relevant to the subject matter of this lawsuit that would
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`otherwise be subject to discovery, have agreed to hereby petition the Court for entry of the
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`following Stipulated Protective Order governing the disclosure and discovery of such confidential
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`information.
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`Upon review of this petition for entry of the following Stipulated Protective Order, the
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`Court has determined that the petition is well taken and should be GRANTED.
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`

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`Case 1:22-cv-00305-RGA-JLH Document 98 Filed 08/21/23 Page 2 of 43 PageID #: 4197
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`Accordingly, to expedite the flow of discovery material, to facilitate the prompt resolution
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`of disputes over confidentiality of discovery materials, to adequately protect information the
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`parties are entitled to keep confidential, to ensure that only materials the parties are entitled to
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`keep confidential are subject to such treatment, and to ensure that the parties are permitted
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`reasonably necessary uses of such materials in preparation for and in the conduct of trial, pursuant
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`to Fed. R. Civ. P. 26(c), it is hereby ORDERED THAT:
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`INFORMATION SUBJECT TO THIS ORDER
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`1.
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`For purposes of this Protective Order (“Order”), “CONFIDENTIAL” information
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`or items shall mean all information, tangible things, material, documents, or electronically stored
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`information that is produced or disclosed, either through the formal discovery process or
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`informally, to a receiving party; which a producing party, including any party to either of these
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`actions and any non-party producing information or material voluntarily or pursuant to a subpoena
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`or a court order, considers to constitute or to contain sensitive financial, patent, trademark,
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`copyright, trade secret, marketing, customer, research, manufacture, regulatory, commercial,
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`business, product development information, or any other confidential technical or non-technical
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`information or know-how that qualifies for protection under Federal Rule Of Civil Procedure
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`26(c), whether embodied in physical objects, documents, or the factual knowledge of persons, the
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`disclosure of which is likely to harm that party’s competitive position, or the disclosure of which
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`would contravene an obligation of confidentiality to a third party or to a Court; and which has
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`been so designated by the producing party.
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`2.
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`For purposes of this Order, “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
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`ONLY” information or items shall be limited to that subset of CONFIDENTIAL information or
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`items constituting or containing: (1) highly sensitive information, including, but not limited to,
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`2
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`

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`information pertaining to scientific and technical data, product research, product development,
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`licensing, projected future sales, pricing, business strategies, business arrangements, volumes,
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`revenues, costs, or profits for accused technology, intellectual property and their components and
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`operations, the disclosure of which to another party or third-party would create a substantial risk
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`of serious harm that could not be avoided by less restrictive means; or (2) sensitive information of
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`third parties, the disclosure of which is likely to significantly harm that third party’s competitive
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`position, or the disclosure of which would contravene an obligation of confidentiality to a third
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`party or to a Court, and which has been so designated by the producing party.
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`3.
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`For purposes of this Order, “HIGHLY CONFIDENTIAL - SOURCE CODE”
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`refers to computer code, as discussed in Paragraph 28 below.
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`4.
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`The following information does not qualify as CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE information (collectively, “Protected Material”) within the meaning of this Order:
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`a)
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`any information that at the time of disclosure in these lawsuits to the
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`receiving party is in the public domain;
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`b)
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`any information that, after its disclosure in these lawsuits to the receiving
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`party, becomes part of the public domain as a result of publication not involving a violation of this
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`Order or breach of an obligation of confidentiality to the producing or receiving party;
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`c)
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`any information known to the receiving party prior to disclosure during
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`these lawsuits which had been previously obtained independently from any party or from a third
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`party under no obligation of confidentiality; and
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`3
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`d)
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`any information obtained by the receiving party after the disclosure from a
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`source who obtained the information lawfully and under no obligation of confidentiality to the
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`producing party.
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`5.
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`All information produced in these litigations designated CONFIDENTIAL,
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`HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL -
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`SOURCE CODE (pursuant to Paragraphs 6-16 below) shall be used solely in connection with and
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`for purposes of these lawsuits and shall not be used for any business purpose, in connection with
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`any other legal proceeding, or directly or indirectly for any other purpose whatsoever. When the
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`litigation has been terminated, a receiving party must comply with the provisions of Paragraph 52
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`below. Any use of such information that is outside of this strict scope of use shall be a violation of
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`this Order. This Order specifically contemplates and acknowledges the potential for the existence
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`of information understood to be confidential and exchanged between the parties prior to this
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`lawsuit. Such information may be properly designated confidential information as to all parties.
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`DESIGNATION OF INFORMATION AS CONFIDENTIAL, HIGHLY CONFIDENTIAL
`- ATTORNEYS’ EYES ONLY, OR HIGHLY CONFIDENTIAL – SOURCE CODE
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`6.
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`The producing party’s designation of information as CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE means that such party believes in good faith, upon reasonable inquiry, that the information
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`qualifies as such. Each party or third party that designates information or items for protection under
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`this Order must take care to limit any such designation to specific material that qualifies under the
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`appropriate standards. Mass,
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`indiscriminate, or routinized designations are prohibited.
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`Designations that are shown to be clearly unjustified or that have been made for an improper
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`purpose (e.g., to unnecessarily encumber or retard the case development process or to impose
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`unnecessary expenses and burdens on other Parties) expose the designating party to sanctions. If
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`4
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`it comes to a designating party’s attention that information or items that it designated for protection
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`do not qualify for protection at all or do not qualify for the level of protection initially asserted,
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`that designating party must promptly notify all other parties that it is withdrawing the mistaken
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`designation.
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`7.
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`Except as otherwise provided in this Order, or as otherwise stipulated or ordered,
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`material that qualifies for protection under this Order must be clearly so designated before the
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`material is disclosed or produced.
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`8.
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`Any document or electronically stored information (excluding transcripts of
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`depositions or other pretrial or trial proceedings) containing or including any CONFIDENTIAL,
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`HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL -
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`SOURCE CODE information may be designated as such by the producing party by marking it, or
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`a coversheet corresponding thereto if a document or electronically stored information is produced
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`in native electronic format, CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’
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`EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE prior to or at the time production
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`is made to the receiving party.
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`9.
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`A party or third-party that makes original documents or materials available for
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`inspection need not designate them for protection until after the inspecting party has indicated
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`which material it would like copied and produced. During the inspection and before the
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`designation, all of the material made available for inspection shall be deemed HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY. After the inspecting party has identified the
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`documents it wants copied and produced, the producing party must determine which documents
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`qualify for protection under this Order. Then, before producing the specified documents, the
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`producing party must affix
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`the appropriate
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`legend
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`(CONFIDENTIAL, HIGHLY
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`5
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE)
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`to each page
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`that contains material designated CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE.
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`10.
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`In the case of written discovery responses and information contained therein,
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`designation shall be made by marking the cover page of the response and all subsequent pages
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`containing the confidential information as CONFIDENTIAL, HIGHLY CONFIDENTIAL -
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`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE.
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`11.
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`Parties shall use reasonable efforts to give the other parties reasonable notice (a
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`minimum of three (3) business days) if they reasonably expect a hearing, trial, or other proceeding
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`to
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`include material designated CONFIDENTIAL OR HIGHLY CONFIDENTIAL
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`-
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`ATTORNEYS’ EYES ONLY so that the other Parties can ensure that only authorized individuals
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`who have signed the “Acknowledgment and Agreement to Be Bound” (Attachment A) are present
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`at those proceedings. Failure to comply with the requirements of this Paragraph shall not be a basis
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`to bar use of Protected Material at any hearing, trial, or other proceeding, but the limits on
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`disclosure of such Protected Material remain in force as stated in Paragraphs 21, 22, and 28 of this
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`Order.
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`12.
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`The original and all copies of any deposition transcript shall be treated as HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE
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`CODE for twenty-one (21) days after the receipt of the deposition transcript. Thereafter, portions
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`of
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`the
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`transcript may be designated by
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`the parties as CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE by advising the opposing party and the stenographer and videographer in writing, that the
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`6
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`information is CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,
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`or HIGHLY CONFIDENTIAL - SOURCE CODE. The parties agree to mark the first page of all
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`copies of deposition transcripts containing either CONFIDENTIAL, HIGHLY CONFIDENTIAL
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`- ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE information
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`with the appropriate designation.
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`13.
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`Information produced in some form other than documentary and any other tangible
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`items shall be designated by affixing in a prominent place on the exterior of the container or
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`containers in which the information or item is stored the legend CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE.
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`14.
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`All CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
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`ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE information not reduced to
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`documentary, tangible or physical form or which cannot be conveniently designated as set forth in
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`Paragraphs 8-13, shall be designated by promptly informing the receiving party of the designation
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`in writing. To the extent the receiving party subsequently generates copies of this information,
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`whether electronic or hard-copy, it shall mark such copies with the appropriate confidentiality
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`designations. When documents are produced in electronic form, the producing party shall include
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`a confidentiality designation on the medium containing the documents. If a receiving party uses
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`a hard-copy of a native format document, the receiving party shall mark each such page of the
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`document with the applicable confidentiality designation.
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`15. Without written permission from the Designating Party or a Court order secured
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`after appropriate notice to all interested persons, a party may not file in the public record in these
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`actions any CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or
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`
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`7
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`HIGHLY CONFIDENTIAL - SOURCE CODE material. Such material that is filed with the Court
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`shall be filed under seal in compliance with D. Del. LR 5.1.3 and shall remain under seal until
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`further order of the Court. The filing party shall be responsible for informing the Clerk of the Court
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`that the filing should be sealed and for placing the legend “FILED UNDER SEAL PURSUANT
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`TO PROTECTIVE ORDER” above the caption and conspicuously on each page of the filing.
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`Exhibits to a filing shall conform to the labeling requirements set forth in this Order. If a pretrial
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`pleading filed with the Court, or an exhibit thereto, discloses or relies on confidential documents,
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`information or material, such confidential portions shall be redacted to the extent necessary in the
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`pleading or exhibit filed publicly with the Court.
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`16.
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`A person who has designated information as CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE may withdraw the designation by: (a) written notification to all parties in the case; and (b)
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`reproducing the information with a different or no designation.
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`CHALLENGES TO CONFIDENTIALITY DESIGNATIONS
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`17.
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`The parties shall use reasonable care when designating documents or information
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`CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL - SOURCE CODE. The acceptance by a party of documents or information
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`designated CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or
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`HIGHLY CONFIDENTIAL - SOURCE CODE shall not constitute an agreement, admission, or
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`concession, or permit an inference, that the materials are in fact properly subject to protection
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`under Federal Rule of Civil Procedure 26(c) or on any other basis. Nothing in this Order shall be
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`construed
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`to prevent any party from objecting
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`to any CONFIDENTIAL, HIGHLY
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`
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`8
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE designation as outside the scope of this Order or of Federal Rule of Civil Procedure 26(c).
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`18.
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`A party shall not be obliged to challenge the propriety of a designation of
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`CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL - SOURCE CODE at the time such designation is made, and failure to do so
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`shall not preclude a subsequent challenge thereto. Unless a prompt challenge to a designating
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`party’s confidentiality designation is necessary to avoid foreseeable, substantial unfairness,
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`unnecessary economic burdens, or a significant disruption or delay of the litigation, a party does
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`not waive its right to challenge a confidentiality designation by electing not to mount a challenge
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`promptly after the original designation is disclosed.
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`19.
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` If after receiving information designated as CONFIDENTIAL, HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE, a receiving party believes that such information does not meet the requirements for such
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`designation, the receiving party shall notify the producing party in writing and request that the
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`designation be removed. The receiving party shall identify on a document by document basis (or
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`relevant groups of documents) the reason it believes such information does not meet the
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`requirements for the confidentiality designation and shall supply the rationale for the claim that
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`the documents should be re-designated. Within fourteen (14) calendar days after receipt of such
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`notice, the parties shall attempt to resolve each challenge in good faith and must begin the process
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`by conferring directly (in voice to voice dialogue; other forms of communication are not
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`sufficient). The receiving party shall seek to reach agreement with the producing party to re-
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`designate the information and give the designating party an opportunity to review the designated
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`9
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`material, to reconsider the circumstances, and, if no change in designation is offered, to explain
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`the basis for the chosen designation.
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`20.
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`Only if agreement cannot be reached between counsel after the challenging party
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`has engaged in this meet and confer process first or establishes that the designating party is
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`unwilling to participate in the meet and confer process in a timely manner, the receiving party may
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`initiate the “Discovery Matters Procedures and Disputes Relating to Protective Orders” procedure
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`contained in the Court’s Joint Scheduling Order (C.A. No. 22-304, D.I. 53 Sec. 3(f); C.A. No. 22-
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`305, D.I. 47 Sec. 3(f)) within twenty-one (21) calendar days of the initial notice of challenge or
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`within fourteen (14) calendar days of the parties agreeing that the meet and confer process will not
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`resolve their dispute, whichever is earlier, requesting a ruling removing the designation from
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`specified documents or testimony. However, the burden of establishing that any document or
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`information is properly designated as CONFIDENTIAL, HIGHLY CONFIDENTIAL -
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`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE remains on the
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`producing party. The challenging party’s submission to the Court shall be accompanied by a
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`competent declaration affirming they have complied with the meet and confer requirements
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`imposed in the preceding paragraph.
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` Any documents or information designated as
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`CONFIDENTIAL, HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL - SOURCE CODE, and any filing made under seal to which challenge has been
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`made, shall not be disclosed in any manner inconsistent with this Order until such challenge has
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`been resolved in favor of the receiving party by agreement of the parties or by Court Order. The
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`documents at issue shall be treated in accordance with the designation the producing party has
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`applied until the Court rules on the disputed issue.
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`10
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`PERSONS QUALIFIED TO RECEIVE CONFIDENTIAL OR
`HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY INFORMATION
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`21.
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`Information or items designated as HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY, and confidential portions of filings made under seal with such material, may be
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`inspected by and disclosed only to the following persons and only for the purpose of conducting
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`this lawsuit unless otherwise ordered by the Court or permitted in writing by the designating party:
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`a)
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`the Court and its employees;
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`b)
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`any person who authored or received a document containing the
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`information in the ordinary course of business or other person who otherwise personally possessed
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`or personally knows the information (or a corporate representative, for example a Fed. R. Civ. P.
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`30(b)(6) designee of the disclosing party);
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`c)
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`outside counsel of record for the parties and their employees, including
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`supporting personnel assigned to and necessary to assist counsel in the preparation and trial of
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`these actions, such as paralegals, secretaries, clerks, other non-lawyer personnel, document
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`copying or scanning services, and data entry or data processing staff;
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`d)
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`outside expert witnesses or consultants with whom counsel may deem it
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`necessary to consult concerning technical, financial, or other aspects of these litigations for the
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`preparation or trial thereof, and their respective secretarial, clerical, and supporting personnel to
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`whom disclosure is reasonably necessary for this litigation and subject to the conditions set forth
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`in Paragraphs 23 and 24;
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`e)
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`third-party court reporting services (e.g., stenographers and videographers
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`and their respective staff) who record or transcribe any proceedings in these actions, translators,
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`interpreters, and outside vendors such as duplicating, document handling and/or imaging services
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`as part of discovery or preparation to trial in these actions, who (1) have been retained by a party
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`11
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`or its counsel to provide litigation support services with respect to these actions to whom disclosure
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`is reasonably necessary for this litigation and subject to the conditions set forth in Paragraphs 23
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`and 24;
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`f)
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`persons who have been retained by the receiving party or its counsel
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`specifically to consult with regard to jury- or trial-related matters, including the composition of
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`the jury in these matters (collectively referred to as “Trial Consultants”), and persons regularly
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`employed by them, to the extent necessary when working under the supervision of such a Trial
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`Consultant in connection with these matters, who (1) have been retained by a party or its counsel
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`to provide litigation support services with respect to these actions, to whom disclosure is
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`reasonably necessary for this litigation and subject to the conditions set forth in Paragraphs 23 and
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`24;
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`g)
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`persons who have been retained by the receiving party or its counsel of
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`record specifically to prepare demonstrative or other exhibits for deposition, trial or other court
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`proceedings in these matters (collectively referred to as “Graphic Designers”), and persons
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`regularly employed by them, to the extent necessary when working under the supervision of such
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`a Graphic Designer in connection with these matters, who (1) have been retained by a party or its
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`counsel to provide litigation support services with respect to these actions, to whom disclosure is
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`reasonably necessary for this litigation and subject to the conditions set forth in Paragraphs 23 and
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`24; and
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`h)
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`any other persons upon such terms and conditions as the parties may agree
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`or as the Court may order.
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`22.
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`In addition to the categories of persons allowed to see HIGHLY CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY information in Paragraphs 21(a)-(h) above, persons allowed to
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`12
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`see CONFIDENTIAL information shall also include two (2) in-house representatives of each party
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`who have signed an undertaking pursuant to Paragraph 24.
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`23. Material designated CONFIDENTIAL or HIGHLY CONFIDENTIAL
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`-
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`ATTORNEYS’ EYES ONLY may be disclosed only to the persons as described in Paragraphs 21
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`and 22 and under the conditions described in this Order.1 Any person who makes any disclosure
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`in confidence under this Order of CONFIDENTIAL or HIGHLY CONFIDENTIAL -
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`ATTORNEYS’ EYES ONLY documents, responses, testimony or filings made under seal, shall
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`advise each person to whom such disclosure is made of this Order. The persons described in
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`Paragraphs 21 and 22 above are enjoined from disclosing CONFIDENTIAL or HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY documents and information to any other person
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`except in conformance with this Order. Designated material must be stored and maintained by a
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`receiving party at a location and in a secure manner that ensures that access is limited to the persons
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`authorized under this Order. Designated material shall only be copied or otherwise reproduced by
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`a receiving party for use consistent with the terms of this Protective Order. To the extent the
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`receiving party wants to copy or otherwise reproduce material designated CONFIDENTIAL or
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`HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY to show it to someone who is not
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`permitted access under this Protective Order, the receiving party shall not do so without prior
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`written consent of the producing party or by further order of the Court.
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`
`1 In the event a Non-Party witness is authorized to receive Protected Material that is to be used
`during his/her deposition but is represented by an attorney not authorized under this Order to
`receive such Protected Material, the attorney must provide prior to commencement of the
`deposition an executed “Acknowledgment and Agreement to Be Bound” in the form attached
`hereto as Attachment A. In the event such attorney declines to sign the “Acknowledgment and
`Agreement to Be Bound” prior to the examination, the Parties, by their attorneys, shall jointly seek
`a protective order from the Court prohibiting the attorney from disclosing Protected Material in
`order for the deposition to proceed.
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`13
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`24.
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`Before materials designated CONFIDENTIAL or HIGHLY CONFIDENTIAL -
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`ATTORNEYS’ EYES ONLY may be disclosed to persons identified in Paragraph 21(d), the
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`person to whom the disclosure is to be made shall first complete and sign the undertaking attached
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`hereto as Attachment A stating that he or she has read and understands this Order and agrees to be
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`bound by its terms. A copy of the completed and signed undertaking by persons identified in
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`Paragraph 21(d) shall be sent via email to opposing counsel of record in the respective lawsuit(s).
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`Before materials designated CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS’
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`EYES ONLY may be disclosed to persons identified in Paragraphs 21(e)-(g), the person to whom
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`the disclosure is to be made shall first complete and sign the undertaking attached hereto as
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`Attachment A stating that he or she has read and understands this Order and agrees to be bound
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`by its terms.
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`25.
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`Ten (10) business days’ written notice must be given to the designating party before
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`materials designated CONFIDENTIAL or HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
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`ONLY may be disclosed to persons identified in Paragraph 21(d). The notice shall include
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`(i) identification of the expert witness or consultant, (ii) a copy of the current curriculum vitae for
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`that expert witness or consultant, including their employer(s) for at least the last four (4) years and
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`the city and state of his or her primary residence, (iii) a list of current and past consulting
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`relationships undertaken within the last four (4) years (including an identification of each entity
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`consulted, dates of the beginning and end of the consultancy, and any litigation matters in which
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`the consultant or expert has testified by way of expert report, deposition, or testimony at hearing
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`or trial), but excluding legal consulting roles, the existence of which are protected from disclosure
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`under the attorney work-product doctrine, (iv) any patents or patent applications in which the
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`proposed expert or consultant is identified as an inventor or applicant, is involved in prosecuting
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`or maintaining, or has any pecuniary interest; and (v) a completed and signed undertaking, attached
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`hereto as Attachment A. In addition, any employee who will assist the persons identified in
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`Paragraph 21(d) and who will have access to confidential information shall first complete and sign
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`the undertaking attached hereto as Attachment A. A copy of the completed and signed
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`undertaking(s) shall then be sent via email to counsel of record for each party in each lawsuit.
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`26.
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`Any objection to the disclosure of confidential information to a party’s designated
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`expert or consultant shall be lodged in accordance with the procedures set forth in Paragraph 30
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`below.
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`27.
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`Nothing in this Order shall be construed to prevent disclosure of a party’s own
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`confidential information to its own current or former employees, corporate representatives,
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`experts, or consultants.
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`COMPUTER CODE
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`28.
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`At least one party to this Order has agreed to produce its source code in
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`accordance with the terms set forth in Paragraphs 28(i)-(xiii) below, and respectfully requests
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`the Court to enter these terms as binding on all parties: For purposes of this Order, the term
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`“computer code” shall include human-readable and machine-readable program codes, source code,
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`including any necessary compilers, bit maps and flow charts, data files as well as executable code,
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`and includes any non-public computer code, computer generated images and simulations, build
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`environments, and associated comments and revision histories incorporated in the code.
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`Additional protections for computer code are warranted, and therefore the manner by which the
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`producing party will produce computer code, and by which the receiving party will handle
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`computer code is subject to the following provisions:
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`Case 1:22-cv-00305-RGA-JLH Document 98 Filed 08/21/23 Page 16 of 43 PageID #: 4211
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`i. Unless otherwise ordered by the Court or permitted in writing by the Designating
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`Party, a Receiving Party may disclose any information or item designated HIGHLY
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`CONFIDENTIAL – SOURCE CODE only to the same categories permitted for
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`information designated as HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES
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`ONLY with the following further limitations:
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`a)
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`outside counsel of
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`record eligible
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`to access HIGHLY
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`CONFIDENTIAL – SOURCE CODE information or items;
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`b)
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`only up to four (4) expert witnesses or consultants of the receiving
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`party (i) to whom disclosure is reasonably necessary for this litigation, (ii)
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`who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Attachment A), and (iii) as to whom the procedures set forth in Paragraph
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`25, above and specifically identified as eligible to access HIGHLY
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`CONFIDENTIAL – SOURCE CODE information or items, have been
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`followed; and
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`c)
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`while testifying at deposition or trial in this action only: any person
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`who authored or received (other than in connection with this litigation), was
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`directly involved in creating, modifying, or editing the HIGHLY
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`CONFIDENTIAL – SOURCE CODE information or items, as evident from
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`its face or reasonably certain in view of other testimony or evidence, or
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`whose relationship to the producing party otherwise allowed them
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`reasonable access to the HIGHLY CONFIDENTIAL – SOURCE CODE
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`information or
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`items. Persons
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`authorized
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`to view HIGHLY
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`CONFIDENTIAL – SOURCE CODE information or items pursuant to this
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`
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`Case 1:22-cv-00305-RGA-JLH Document 98 Filed 08/21/23 Page 17 of 43 PageID #: 4212
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`sub-paragraph shall not retain or be given copies of the HIGHLY
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`CONFIDENTIAL – SOURCE CODE information or items except while so
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`testifying. Only printed copies of the source code will be provided to
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`testifying witnesses during their testimony.
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`ii.
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`each producing party will make relevant portions of the computer code, if any,
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`available for inspection by the receiving party in electronically searchable source
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`code files and/or executable code files on a single, secured, stand-alone, password-
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`protected computer(s) (that is, the computer may not be linked to any network,
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`including a local area network (“LAN”), an intranet or the Internet). The stand-
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`alone computer(s) is/are to be maintained in a secure locked room at the producing
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`party’s outside counsel’s office within the United States, a mutually agreeable