`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 1 of 20 PageID #: 1281
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`
`ORCA SECURITY LTD.,
`
`
`Plaintiff,
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`
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`v.
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`WIZ, INC.,
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`
`
`
`Defendant.
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`
`
`
`
`C.A. No. 23-758 (JLH)
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`
`
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`)
`)
`)
`)
`)
`)
`)
`)
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`[PROPOSED] STIPULATED PROTECTIVE ORDER
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`WHEREAS, Plaintiff Orca Security Ltd. (“Orca”) and Defendant Wiz, Inc. (“Wiz”),
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`hereafter referred to as “the Parties,” believe that certain information that is or will be encompassed
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`by discovery demands by the Parties involves the production or disclosure of trade secrets,
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`confidential information, and/or proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in
`accordance with
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`Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`Each Party may designate as confidential for protection under this Order, in whole or in part,
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`any document, information or material that constitutes or includes, in whole or in part,
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`confidential or proprietary information or trade secrets of the Party or a Third Party to whom
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`the Party reasonably believes it owes an obligation of confidentiality with respect to such
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`document, information or material (“Protected Material”).
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`a. Protected Material shall be designated by the Party producing it by affixing a
`legend or stamp on such document, information or material as follows:
`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
`“RESTRICTED CONFIDENTIAL SOURCE CODE.”
` The words
`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
`“RESTRICTED CONFIDENTIAL SOURCE CODE” shall be placed clearly on
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`1.
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`

`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 2 of 20 PageID #: 1282
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`each page of the Protected Material (except native documents and deposition and
`hearing transcripts) for which such protection is sought.
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`b. For natively produced Protected Material, the filename shall be the production
`number and the confidentiality designation shall be placed in the filename of each
`such natively produced document, and the slip sheet corresponding to the Protected
`Material shall include the production number and the confidentiality designation.
`In the event the receiving Party of natively produced Protected Material chooses to
`print or otherwise make a copy of such materials, the printout or copy must be
`marked with the confidentiality designation.
`
`c. For deposition transcripts, Parties or testifying persons or entities may designate
`depositions and other testimony (or portion thereof) with the appropriate
`designation pursuant to this Order by indicating on the record at the time the
`testimony is given or by sending written notice of how the transcript or portions
`thereof are designated within thirty (30) days of receipt of the transcript of the
`testimony. Access to the transcript so designated shall be limited in accordance
`with the terms of this Order. If no indication on the record is made, all information
`disclosed during a deposition shall be deemed “CONFIDENTIAL - ATTORNEYS’
`EYES ONLY” until the time within which it may be appropriately designated as
`provided for herein has passed. Any Protected Material that is used in the taking
`of a deposition or hearing shall remain subject to the provisions of this Protective
`Order, along with the transcript pages of the deposition or hearing testimony
`dealing with such Protected Material. In such cases the court reporter shall be
`informed of this Protective Order and shall be required to operate in a manner
`consistent with this Protective Order. In the event the deposition is videotaped, the
`original and all copies of the videotape (or portions thereof) shall be marked by the
`video technician to indicate that the contents of the videotape are subject to this
`Protective Order, substantially along the lines of “This videotape may contain
`confidential testimony used in this case and is not to be viewed or the contents
`thereof to be displayed or revealed except pursuant to the terms of the operative
`Protective Order in this matter or pursuant to written stipulation of the parties.”
`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
`“RESTRICTED CONFIDENTIAL SOURCE CODE” shall be placed on the cover
`page of the transcript (if not already present on the cover page of the transcript
`when received from the court reporter) by each attorney receiving a copy of the
`transcript after that attorney receives notice of the designation of some or all of that
`transcript.
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`Any document produced before
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`this Order with the designation
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`issuance of
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`“CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY” shall receive
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`the same treatment as if designated as such under this Order, unless and until such document
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`is redesignated to have a different classification under this Order.
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`2
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`2.
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`

`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 3 of 20 PageID #: 1283
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`3.
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`With respect to documents, information or material designated “CONFIDENTIAL,
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`“CONFIDENTIAL
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`- ATTORNEYS’ EYES ONLY,”
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`or
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`“RESTRICTED
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`CONFIDENTIAL SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the
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`provisions herein and unless otherwise stated, this Order governs, without limitation: (a)
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`all documents, electronically stored information, and/or things as defined by the Federal
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`Rules of Civil Procedure; (b) all deposition testimony, or documents marked as exhibits or
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`for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings
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`and other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions,
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`extracts, digests and complete or partial summaries prepared from any DESIGNATED
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`MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such
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`under this Order.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL,” “CONFIDENTIAL -
`
`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”)
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`may be made at any time. Inadvertent or unintentional production of documents,
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`information or material that has not been designated as DESIGNATED MATERIAL shall
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`not be deemed a waiver in whole or in part of a claim for confidential treatment. Any Party
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`that inadvertently or unintentionally produces Protected Material without designating it as
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`DESIGNATED MATERIAL may request destruction of that Protected Material by notifying
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`the recipient(s), as soon as reasonably possible after the producing Party becomes aware of
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`the inadvertent or unintentional disclosure, and providing replacement Protected Material
`
`
`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
`class of materials designated as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES
`ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE,” both individually and
`collectively.
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`
`
`3
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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 4 of 20 PageID #: 1284
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`that is properly designated. The recipient(s) shall then destroy all copies of the inadvertently
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`or unintentionally produced Protected Materials and any documents, information or material
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`derived from or based thereon.
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`5.
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`“CONFIDENTIAL” documents, information and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating Party,
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`upon order of the Court, or as set forth in paragraph 14 herein:
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`a.
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`b.
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`c.
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`
`
`
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`outside counsel of record in this Action for the Parties, as well as partners,
`associates, and employees of such counsel assigned to and reasonably necessary
`to assist such counsel in the litigation of this Action;
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`up to and including one (1) in-house counsel for the Parties who either have
`responsibility for making decisions dealing directly with the litigation of this
`Action, or who are assisting outside counsel in the litigation of this Action provided
`that before access is given, the in-house counsel has completed the Undertaking
`attached as Appendix A hereto and the same is served upon the producing Party at
`least ten (10) days before access to the Protected Material is to be given to that in-
`house counsel. The producing Party may object by notifying the receiving Party in
`writing that it objects to disclosure of Protected Material to the in-house counsel.
`The Parties agree to promptly confer and use good faith to resolve any such
`objection. If the Parties are unable to resolve any objection, the objecting Party
`may file a motion with the Court within fifteen (15) days of the notice, or within
`such other time as the Parties may agree, seeking a protective order with respect to
`the proposed disclosure. The objecting Party shall have the burden of proving the
`need for a protective order. No disclosure shall occur until all such objections are
`resolved by agreement or Court order;
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`outside consultants or experts (i.e., not existing employees or affiliates of a Party or
`an affiliate of a Party) and their necessary support personnel retained for the
`purpose of this litigation, provided that: (1) such consultants or experts are not
`presently employed by the Parties hereto for purposes other than this Action2;
`(2) before access is given, the consultant or expert has completed the Undertaking
`attached as Appendix A hereto and the same is served upon the producing Party
`with a current curriculum vitae of the consultant or expert at least seven (7) days
`before access to the Protected Material is to be given to that consultant. As part of
`the curriculum vitae of the consultant or expert or in a separate document(s) served with
`the curriculum vitae, the receiving Party must disclose the following information
`regarding the consultant or expert to the producing Party: name, address, current
`
`
`2 For the avoidance of doubt, an independent expert or consultant retained (as opposed to
`employed) by a Party on another litigation would not be precluded under this section.
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`
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`4
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`

`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 5 of 20 PageID #: 1285
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`employer, employment history for the past four (4) years, a listing of cases in which the
`consultant or expert has testified as an expert at trial or by deposition within the
`preceding four (4) years, and an identification of any patents or patent applications in
`which the consultant or expert is identified as an inventor or applicant, is involved in
`prosecuting or maintaining, or has any pecuniary interest, to the extent such information
`is reasonably available. The producing Party may object by notifying the receiving
`Party in writing that it objects to disclosure of Protected Material to the consultant
`or expert. The Parties agree to promptly confer and use good faith to resolve any
`such objection. If the Parties are unable to resolve any objection, the objecting
`Party may file a motion with the Court within fifteen (15) days of the notice, or
`within such other time as the Parties may agree. The receiving Party shall have the
`burden of proving that such disclosure is warranted. No disclosure shall occur until
`all such objections are resolved by agreement or Court order;
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`d.
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`independent litigation support services, including persons working for or as court
`reporters, graphics or design services, translation services, jury or trial consulting
`services, mock jurors that have been retained specifically for the purpose of trial
`preparation, and photocopy, document imaging, and database services retained by
`counsel and reasonably necessary to assist counsel with the litigation of this
`Action; and
`
`e.
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`the Court and its personnel.
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`A Party shall designate documents, information or material as “CONFIDENTIAL” only
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`upon a good faith belief that the documents, information or material contains confidential
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`or proprietary information or trade secrets of the Party or a Third Party to whom the Party
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`reasonably believes it owes an obligation of confidentiality with respect to such documents,
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`information or material.
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`
`
`
`
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`6.
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`7.
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`Documents, information or material produced pursuant to any discovery request in this
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`Action that include Protected Material designated as DESIGNATED MATERIAL shall be
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`used by the Parties only in the litigation of this Action and shall not be used for any other
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`purpose, including without limitation any other litigation, patent prosecution or acquisition,
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`patent reexamination or reissue proceedings (subject to the provisions in paragraph 28), or
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`any business or competitive purpose or function. Any person or entity who obtains access
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`to DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not
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`
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`5
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`

`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 6 of 20 PageID #: 1286
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`make any copies, duplicates, extracts, summaries or descriptions of such DESIGNATED
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`MATERIAL or any portion thereof except as may be reasonably necessary in the litigation
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`of this Action. Any such copies, duplicates, extracts, summaries or descriptions shall be
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`classified DESIGNATED MATERIALS and subject to all of the terms and conditions of
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`this Order. Nothing in this paragraph shall prohibit any use, copying or otherwise, of
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`material that is publicly available (e.g., in a public filing).
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`8.
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`To the extent a producing Party believes that certain Protected Material qualifying to be
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`designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
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`limitation, the producing Party may designate such Protected Material “CONFIDENTIAL
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`- ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer
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`source code and/or live data (that is, data as it exists residing in a database or databases)
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`(“Source Code Material”), the producing Party may designate such Protected Material as
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`“RESTRICTED CONFIDENTIAL SOURCE CODE.” Source Code Material includes
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`computer code, firmware, driver code, scripts, assembly, binaries, object code, Hardware
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`Description Language (HDL) files, Register Transfer Level (RTL) files, Cadence and other
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`computer-aided design (CAD) files, and GDSII files. For example, Source Code Material
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`includes “.include,” “.s,” “c.,” “.vhd,” “.h,” “make,” “.mcm,” “.dra,” “.brd,” “.sip,” “.gds”
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`files.
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`9.
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`For Protected Material designated CONFIDENTIAL - ATTORNEYS’ EYES ONLY,
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`access to, and disclosure of, such Protected Material shall be limited to individuals listed
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`in paragraphs 5(a) and (c-e).
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`10.
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`For Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE, the
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`following additional restrictions apply:
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`
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`6
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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 7 of 20 PageID #: 1287
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`a. Access to a Party’s Source Code Material shall be provided only on “stand-alone”
`computer(s) (that is, the computer may not be linked to any network, including a
`local area network (“LAN”), an intranet or the Internet). The stand-alone
`computer(s) may be connected to a printer. The stand-alone computer(s) may only
`be located within the continental United States at the offices of the producing
`Party’s outside counsel that is capable of hosting source code review, or at such
`other location as the supplier and receiving Party mutually agree. The room
`containing the standalone computer(s) must have a minimum of 10’ x 10’ working
`space and be temperature-controlled. The stand-alone computer(s) shall have disk
`encryption and be password protected and shall have the Source Code stored on a
`hard drive contained inside the computer(s). Use or possession of any input/output
`device (e.g., mobile phone or tablet, camera or any camera-enabled device, CD,
`floppy disk, portable hard drive, laptop, or any device that can access the Internet
`or any other network or external system, etc.) is prohibited while accessing the
`computer containing the source code. The receiving Party may not directly copy
`the Source Code into notes. When used in notes composed by the receiving Party,
`function names, variable names, parameter names, and other individual identifiers
`do not constitute copying code. Such notes will be labeled “RESTRICTED
`CONFIDENTIAL SOURCE CODE.” No copies of all or any portion of the Source
`Code may leave the room in which any Source Code is inspected, except as
`otherwise provided herein. All persons entering the locked room containing the
`stand-alone computer(s) must agree to submit to reasonable security measures to
`ensure they are not carrying any prohibited items before they will be given access
`to the stand-alone computer(s), and shall sign a log that includes the names of
`persons who enter the room and the dates and times when they enter and depart.
`The producing Party may visually monitor the activities of the receiving Party’s
`representatives from outside the inspection room but only to such an extent as to
`ensure that no unauthorized electronic records of the Source Code Material and no
`unauthorized information concerning the Source Code Material is being created or
`transmitted. The producing Party shall only monitor the inspection room in such
`a way that their representative is not able to listen to the conversations of the
`receiving Party’s representatives or view the content of the written notes of the
`receiving Party;
`
`b. The supplier may employ security measures on the stand-alone computer such as
`physical measures to prevent or detect tampering with the stand-alone computer,
`and to implement disabling of communication ports and software functionality,
`data encryption, access logging limitations on access privileges by the receiving
`Party, and specification and configuration of the operating system and software
`tools to be used for inspecting the Source Code. The receiving Party shall not
`attempt to circumvent any security measures implemented by the supplier, under
`any circumstances. In order to verify that its Source Code has not later been
`altered, the supplier may benchmark the materials before and after they are
`provided, but shall not install any keystroke or other monitoring software on the
`stand-alone computer. No person other than the supplier may alter, dismantle,
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`7
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`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 8 of 20 PageID #: 1288
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`disassemble or modify the stand-alone computer in any way, or attempt to
`circumvent any security feature of the stand-alone computer.
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`The receiving Party shall make reasonable efforts to restrict its requests for such
`access to the stand-alone computer(s) to normal business hours, which for purposes
`of this paragraph shall be 9:00 a.m. through 5:00 p.m. local time of the outside
`counsel in possession of the review computer on business days (i.e., weekdays that
`are not Federal holidays). However, upon reasonable notice from the receiving
`party, the producing Party shall make reasonable efforts to accommodate the
`receiving Party’s request for access to the stand-alone computer(s) outside of normal
`business hours. The Parties agree to cooperate in good faith such that maintaining
`the producing Party’s Source Code Material at the offices of its outside counsel
`shall not unreasonably hinder the receiving Party’s ability to efficiently and
`effectively conduct the prosecution or defense of this Action. The receiving Party
`shall provide five (5) business days’ notice of its intent to inspect for its initial
`inspection of the Source Code Material that has been produced by the producing
`Party and identify in writing all qualified persons who will review the Source Code
`Material. The receiving Party shall provide three (3) business days’ notice prior to
`any additional inspection and identify in writing all qualified persons who will
`review the Source Code Material. The producing Party shall be reasonable in
`accommodating requests for inspection on shorter notice;
`
`The receiving Party’s outside counsel may request that commercially available
`software tools for viewing and searching Source Code Material, be installed on the
`stand-alone computer(s), provided, however, that (a) the receiving Party possesses
`an appropriate license to such software tools; (b) the producing Party approves
`such software tools, such approval not to be unreasonably withheld; and (c) such
`other software tools are reasonably necessary for the receiving Party to perform its
`review of the Source Code Material consistent with all of the protections herein.
`The receiving Party must provide the producing Party with the CD or DVD, or
`link, containing such licensed software tool(s) at least four (4) business days in
`advance of the date upon which the receiving Party wishes to have the additional
`software tools available for use on the stand-alone computer(s). To the extent any
`Source Code Material is provided in a proprietary format, the producing Party shall
`make software available to facilitate review of such Source Code Material;
`
`The producing Party shall provide the receiving Party with information explaining
`how to start, log on to, and operate the stand-alone computer(s) in order to access the
`produced Source Code Material;
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`The producing Party will produce Source Code Material in computer-searchable
`format on the stand-alone computer(s);
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`Access to Protected Material designated RESTRICTED CONFIDENTIAL
`SOURCE CODE shall be limited to outside counsel and up to four (4) outside
`
`
`c.
`
`
`d.
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`e.
`
`
`f.
`
`
`g.
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`
`
`8
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`

`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 9 of 20 PageID #: 1289
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`
`h.
`
`
`i.
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`consultants or experts3 (i.e., not existing employees or affiliates of a Party or an
`affiliate of a Party) retained for the purpose of this litigation and approved to access
`such Protected Materials pursuant to paragraph 5(c) above;
`
`To the extent portions of Source Code Material are quoted in a Source Code
`Document4, either (1) the entire Source Code Document will be stamped and treated
`as RESTRICTED CONFIDENTIAL SOURCE CODE or (2) those pages containing
`quoted Source Code Material will be separately stamped and treated as
`RESTRICTED CONFIDENTIAL SOURCE CODE;
`
`Except as set forth in this Order, absent express written permission from the
`producing Party, the receiving Party may not create electronic images, or any
`other images, or make electronic copies, of Source Code Material for use in any
`manner (including by way of example only, the receiving Party may not scan the
`Source Code Material to a PDF or photograph the code). The receiving Party
`shall not include excerpts of Source Code Material (either graphical copies or
`copied text) in correspondence between the Parties (references to production
`numbers shall be used instead). The receiving Party shall also omit images or
`copies of Source Code Material from pleadings and other papers unless such
`images or copies are necessary. Only if it is necessary, the receiving Party may
`include excerpts of Source Code Material in a pleading, exhibit, expert report,
`discovery document, deposition transcript, or other Court document, provided that
`the Source Code Documents are appropriately marked under this Order, restricted
`to those who are entitled to have access to them as specified herein, include the
`minimal amount of such Source Code Material information that is reasonably
`necessary, and, if filed with the Court, filed under seal in accordance with the
`Court’s rules, procedures and orders. Wherever possible, the receiving Party will
`make a reasonable and good-faith effort to limit this information to references
`to production numbers, file names, and line numbers;
`
`
`j.
`
`The receiving Party shall be permitted to print reasonable and not excessive
`portions of the Source Code Material. Unless otherwise agreed to by the producing
`Party, any printed portion of Source Code Material that consists of more than fifty
`(50) pages of a continuous block of Source Code shall be presumed to be excessive,
`and the burden shall be on the receiving Party to demonstrate the need for such a
`printed copy. Any request that would result in more than one thousand (1000) total
`pages of source code having been printed for the receiving Party shall likewise be
`presumed to be excessive. The receiving Party shall include the filename and full
`
`3 For the purposes of this paragraph, an outside consultant or expert is defined to include the outside
`consultant’s or expert’s direct reports and other support personnel, including for example
`translation services, such that the disclosure to a consultant or expert who employs others within
`his or her firm to help in his or her analysis shall count as a disclosure to a single consultant or
`expert.
`4 The term “Source Code Document” is used throughout this Protective Order to refer to any
`document that includes excerpts of Source Code Material.
`
`
`
`9
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`
`

`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 10 of 20 PageID #: 1290
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`path of the file on the header of each printout. The producing Party shall Bates
`number, copy, and label “RESTRICTED CONFIDENTIAL SOURCE CODE”
`any pages printed by the receiving Party. Within four (4) business days, the
`producing Party shall either (i) ship one copy set of such pages to the receiving
`Party or (ii) inform the receiving Party that it objects that the printed portions are
`excessive and/or not done for a permitted purpose. The Parties agree to promptly
`confer and use good faith to resolve any such objection. If the Parties are unable
`to resolve any objection, the producing Party may file a “Motion for
`Teleconference to Resolve [Discovery/Protective Order] Disputes” with the Court
`within five (5) business days of the producing Party’s objection, or within such
`other time as the Parties may agree. Upon any such motion to the Court, the burden
`shall be on the producing Party to show good cause for why the requested printed
`source code should not be provided. However, as discussed above, in the case of
`disputes related to the printing of continuous blocks of source code longer than
`fifty (50) pages or the printing of more than one thousand (1000) total pages, the
`receiving Party may
`file a “Motion
`for Teleconference
`to Resolve
`[Discovery/Protective Order] Disputes” with the Court within five (5) business
`days of the producing Party’s objection, or within such other time as the Parties
`may agree, and the burden shall be on the receiving Party to demonstrate the need
`for a printed copy that exceeds fifty (50) pages of a continuous block of source
`code. Although the receiving Party may print entire file(s) that have been
`identified as of interest, the receiving Party shall not print Source Code Material in
`order to review blocks of Source Code Material outside the stand-alone computers
`in the first instance, i.e., as an alternative to reviewing that Source Code Material
`electronically on the stand-alone computer(s);
`
`Except on a temporary basis in connection with a particular deposition, hearing, or
`specific Court proceeding, the receiving Party’s outside counsel may make no
`more than five (5) copies of any printed page of the Source Code Material received
`from a producing Party pursuant to paragraph 10(j). Outside vendors shall not be
`used to print or copy the computer code. The receiving Party’s outside counsel
`shall maintain a log of all such paper copies of the Source Code Material, including
`the recipients and storage locations of the same. All such copies shall be
`designated and clearly labeled “RESTRICTED CONFIDENTIAL SOURCE
`CODE.” Upon five (5) days advance notice to the receiving Party, the receiving
`Party shall provide a copy of this log to the producing Party, and in any event the
`receiving Party shall provide this log to the producing Party upon the conclusion
`of the litigation;
`
`If the receiving Party’s outside counsel, consultants, or experts obtain printouts or
`photocopies of Source Code Material, the receiving Party shall ensure that such
`outside counsel, consultants, or experts keep the printouts or photocopies in a
`secured locked area in the offices of such outside counsel, consultants, or expert.
`The receiving Party may also temporarily keep the printouts or photocopies at: (i) the
`Court for any proceedings(s) relating to the Source Code Material, for the dates
`associated with the proceeding(s); (ii) the sites where any deposition(s) relating to
`
`
`k.
`
`
`l.
`
`
`
`10
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`

`

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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 11 of 20 PageID #: 1291
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`
`m.
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`the Source Code Material are taken, for the dates associated with the deposition(s);
`and (iii) any intermediate location reasonably necessary to transport the printouts or
`photocopies (e.g., a hotel prior to a Court proceeding or deposition);
`
`A producing Party’s Source Code Material may only be transported by the receiving
`Party by a person authorized under paragraph 10(g) above to another person
`authorized under paragraph 10(g) above, on paper via hand carry or Federal
`Express. The receiving Party may not transmit the producing Party’s Source Code
`Material electronically over a network of any kind, including a LAN, an intranet,
`or the Internet. Copies of printed Source Code Material that are marked as
`deposition exhibits, may be provided to the Court Reporter during the deposition,
`but shall not be retained by the Court Reporter or attached to deposition transcripts;
`rather, the deposition record will identify the exhibit by its production numbers. All
`paper copies of Source Code Material brought to the deposition that are used as
`exhibits shall remain with the producing Party’s outside counsel; and
`
`n. Counsel for the Party in possession of a Party’s Source Code Material, including any
`printouts, shall immediately notify via email counsel for the producing Party if
`Source Code Material was lost or stolen or if the security of the Source Code Material
`was otherwise compromised, and shall provide details of the event and make all
`reasonable effort to retrieve the Source Code Material.
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`Any attorney representing a Party, whether in-house or outside counsel, and any person
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`associated with a Party and permitted to receive the other Party’s Protected Material that is
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`designated CONFIDENTIAL - ATTORNEYS’ EYES ONLY and/or RESTRICTED
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`CONFIDENTIAL SOURCE CODE (collectively “HIGHLY SENSITIVE MATERIAL”),
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`who obtains, receives, has access to, or otherwise learns, in whole or in part, the other
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`Party’s HIGHLY SENSITIVE MATERIAL under this Order shall not prepare, prosecute,
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`supervise, or assist in the preparation or prosecution of any patent application substantially
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`related
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`to
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`the particular
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`information disclosed
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`in such HIGHLY SENSITIVE
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`MATERIAL, from the time of receipt of such material through and including the first to
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`occur of (i) one year after the complete resolution of this Action through entry of a final
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`non-appealable judgment or order for which appeal has been exhausted and completion of
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`the requirements of this agreement; (ii) one year after the complete settlement of all claims
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`11
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`11.
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`Case 1:23-cv-00758-JLH Document 38 Filed 03/15/24 Page 12 of 20 PageID #: 1292
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`in this Action and completion of the requirements of this agreement; or (iii) one year after
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`the time the individual person(s) cease(s) to have access to such material. This provision
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`does not apply to participation in inter partes review or other post-grant proceedings,
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`except that persons covered by this prosecution bar shall not assist, supervise, or
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`participate in the proposal, drafting, or modification of any new or amended claims in such
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`proceedings. For purposes of clarity, a patent or patent application is not “related to” the
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`particular information disclosed if it both makes no use of that information and the claims
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`do not encompass, in whole or in part, any of the hardware, software, or technical
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`functionality to which the particular information relates.
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`12.
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`Nothing in this Order shall require production of documents, information or other material
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`that a Party contends is protected from disclosure by the attorney-client privilege, the work
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`product doctrine, or other privilege, doctrine, or immunity. If documents, information or
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`other material subject to a claim of attorney-client privilege, work product doctrine, or other
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`privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
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`production shall in no wa