UNITED STATES INTERNATIONAL TRADE COMMISSION
`Washington, D.C.
`
`
`
`In the Matter of
`
`CERTAIN WEARABLE ELECTRONIC
`DEVICES WITH ECG FUNCTIONALITY
`AND COMPONENTS THEREOF
`
`
`
`
`
`Inv. No. 337-TA-1266
`
`
`ORDER NO. 7:
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`
`
`
`AMENDING THE PROTECTIVE ORDER
`
`(August 18, 2021)
`
`Complainant AliveCor, Inc. and Respondent Apple Inc. (collectively, “the Private Parties”)
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`moved (1266-002) to amend the Protective Order (Order No. 1) that issued on May 26, 2021, to
`
`include enhanced confidentiality provisions for source code. The Private Parties submit that the
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`Commission Office of Import Investigations Staff does not oppose the proposed amendments. Mot.
`
`at 3.
`
`The Private Parties’ joint motion (1266-002) is hereby granted. The provisions set forth in
`
`Appendix A to this order shall be incorporated as Paragraph Nos. 18-28 of the Protective Order in
`
`this investigation.
`
`SO ORDERED.
`
`
`
`
`
`
`
`
`
`_____________________________
`Cameron Elliot
`Administrative Law Judge
`
`

`

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`
`
`
`
`
`
`
`APPENDIX A
`
`18.
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`Source Code. A Producing Party may designate documents, information, or things
`
`that constitute or contain non-public Source Code as “HIGHLY CONFIDENTIAL SOURCE
`
`CODE SUBJECT TO PROTECTIVE ORDER.” Nothing in this Order shall be construed as a
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`representation or admission that Source Code is properly discoverable in this action, or to obligate
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`any Party to produce any Source Code.
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`19.
`
`Definitions.
`
`A.
`
`B.
`
`“Producing Party” shall mean any Private Party or non-party that makes
`Source Code available for review.
`“Receiving Party” shall mean any Party or non-party other than the
`Producing Party that reviews Source Code provided by the Producing
`party.
`“Source Code” shall mean computer code, scripts, assembly, binaries,
`object code, source code listings (e.g., file names and path structure),
`descriptions of source code (e.g., descriptions of declarations, functions,
`and parameters), object code listings and descriptions of object code,
`Hardware Description Language (HDL) or Register Transfer Level (RTL)
`files that describe the hardware design of any ASIC or other chip, and
`Computer Aided Design (CAD) files that describe the hardware design of
`any component.
`Source Code Qualified Persons. Unless otherwise ordered by the Administrative
`
`C.
`
`20.
`
`Law Judge or permitted in writing by a Producing Patty, materials designated “HIGHLY
`
`CONFIDENTIAL SOURCE CODE SUBJECT TO PROTECTIVE ORDER” shall not be
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`disclosed to anyone except the following persons (“SOURCE CODE QUALIFIED PERSONS”):
`
`A.
`
`B.
`
`Outside Counsel of Record who have signed the Agreement to be bound
`by the Protective Order in this Investigation, and staff assisting such
`counsel who are necessarily incident to the litigation of this Investigation;
`The Commission, the Administrative Law Judge, the Commission
`Investigative Staff, Commission personnel and contract personnel who are
`acting in the capacity of Commission employees as indicated in
`Paragraphs 3 and 4 of this Protective Order;
`
`

`

`C.
`
`D.
`
`E.
`
`F.
`
`G.
`
`Court reporters, stenographers and videographers transcribing or recording
`testimony at depositions, hearings, or trial in this Investigation, who have
`signed an acknowledgment to be bound by the Protective Order, as
`indicated in Paragraph 6 of this Protective Order;
`Qualified experts or consultants retained by a Private Party for purposes of
`this Investigation under Paragraphs 11 and 21 of this Protective Order
`(hereinafter, “Qualified Experts”);
`Any third parties who are witnesses during a deposition, court hearing, or
`trial where specific documentary or testimonial evidence establishes that
`the Highly Confidential Source Code portion of the Highly Confidential
`Source Code was authored or received by the witness without any
`violation of any confidentiality obligation owed to any Party in this
`Investigation; and
`Anyone else to whom the Producing Party consents, as long as such
`individual signs an acknowledgment to be bound by the Protective Order,
`and, if applicable, the “Certification of Consultant Regarding Protective
`Order” attached hereto as Exhibit A, and such consent is expressly
`provided in writing by Outside Counsel of Record for the Producing Party.
`Nothing in this paragraph shall prevent a Producing Party from disclosing
`its Source Code to the Producing Party’s own employees or Qualified
`Experts.
`21. Qualified Experts. A Qualified Expert may only
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`review HIGHLY
`
`CONFIDENTIAL SOURCE CODE SUBJECT TO PROTECTIVE ORDER after:
`
`A.
`
`B.
`
`C.
`D.
`
`Being expressly identified to the Producing Party as seeking access to
`HIGHLY CONFIDENTIAL SOURCE CODE SUBJECT TO
`PROTECTIVE ORDER at least five (5) business days prior to said
`Qualified Expert’s first inspection of HIGHLY CONFIDENTIAL
`SOURCE CODE SUBJECT TO PROTECTIVE ORDER;
`Providing the Producing Party with signed copies of acknowledgments to
`be bound by the Protective Order, and the “Certification of Consultant
`Regarding Protective Order” attached hereto as Exhibit A;
`Complying with the notice provisions of Paragraphs 11 and 22; and
`Disclosing the proposed expert’s educational and detailed employment
`history to the Producing Party, which shall include at least
`i. an up-to-date curriculum vitae of the Qualified Expert
`(including the Qualified Expert’s business/professional title
`and business address);
`ii. any previous or current relationship with any of the Private
`Parties to this Investigation, including direct relationships and
`relationships through entities owned or controlled by the
`
`
`
`2
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`

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`E.
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`Qualified Expert;
`iii. a list of other cases in which the Qualified Expert has testified
`(at trial or deposition) within the last five (5) years;
`iv. a list of all companies by which the proposed Qualified Expert
`has consulted or by which the proposed Qualified Expert has
`been employed within the last five (5) years, the dates of the
`consultancy or employment, a brief description of the subject
`matter of the consultancy or employment; and
`v. an identification of all pending patent applications on which
`the Qualified Expert is named as an inventor, in which the
`Qualified Expert has any ownership interest, or as to which the
`Qualified Expert has had or presently anticipates in the future
`any involvement in advising on, consulting on, preparing,
`prosecuting, drafting, editing, amending, or otherwise affecting
`the scope of the claims.
`Further, the Party seeking to disclose protected material shall provide such
`other information regarding the Qualified Expert’s professional activities
`reasonably requested by the Producing Party for it to evaluate whether
`good cause exists to object to the disclosure of protected material to the
`Qualified Expert, including but not limited to an identification of any
`individual or entity with or for whom the Qualified Expert is employed or
`provides consulting services relating to the functionality, operation, and
`design of wearable electronic devices with ECG and PPG functionalities
`for purposes of detecting atrial fibrillation (generally or as described in
`any patent in suit).
`This paragraph does not require the disclosing party to disclose aspects of
`any expert’s business or profession or companies with which the proposed
`expert has consulted or by which the proposed expert has been employed
`to the extent such information is confidential or subject to a non-disclosure
`agreement; in any such instance, the disclosing party will describe the
`confidential experience in such a manner so as to enable the other parties
`to determine that no valid concerns exist regarding the disclosing party’s
`retention of that expert.
`Notice. In accordance with Paragraph 21 of this Protective Order, and if the
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`F.
`
`22.
`
`Producing Party objects to the disclosure of such HIGHLY CONFIDENTIAL SOURCE CODE
`
`SUBJECT TO PROTECTIVE ORDER to a Qualified Expert as inconsistent with the language or
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`intent of this order or on other grounds, it shall notify the Receiving Party in writing of its objection
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`and the grounds therefore no more than 10 business days after the above-described written
`
`submission of the Qualified Expert by the Receiving Party, or no less than 3 business days prior
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`
`
`3
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`

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`to the initial disclosure of HIGHLY CONFIDENTIAL SOURCE CODE SUBJECT TO
`
`PROTECTIVE ORDER to the Qualified Expert (whichever of the two periods is shorter as
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`measured from the date that the Receiving Party’s identification of the Qualified Expert under
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`Paragraph 21). If the dispute is not resolved on an informal basis within five days of receipt of
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`such notice of objections, the Producing Party shall submit immediately each objection to the
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`Administrative Law Judge for a ruling. If the investigation is before the Commission, the matter
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`shall be submitted to the Commission for resolution. The submission of such HIGHLY
`
`CONFIDENTIAL SOURCE CODE SUBJECT TO PROTECTIVE ORDER to Qualified Expert
`
`shall be withheld pending the ruling of the Commission or the Administrative Law Judge. The
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`terms of this paragraph shall be inapplicable to experts within the Commission or to experts from
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`other governmental agencies who are consulted with or used by the Commission.
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`23.
`
`Production of HIGHLY CONFIDENTIAL SOURCE CODE SUBJECT TO
`
`PROTECTIVE ORDER. Source code shall be provided with the following additional
`
`protections:
`
`A.
`
`B.
`
`Any Source Code that is produced by Complainant shall be made
`available for inspection in electronic format at the [[
`]] office
`of its outside counsel, Quinn Emanuel Urquhart & Sullivan, LLP, or any
`other location mutually agreed by the Parties. Any Source Code that is
`produced by Apple Inc. will be made available for inspection at the
`[[
`]] office of its outside counsel, Fish & Richardson,
`P.C., or any other location mutually agreed by the Parties. Source Code
`will be made available for inspection between the hours of 9 a.m. and 6
`p.m. local time on business days (i.e., weekdays that are not Federal
`holidays), although the Parties will be reasonable in accommodating
`reasonable requests to conduct inspections at other times. Unless
`otherwise requested or agreed to by the Parties in advance of any
`inspection of Source Code, all Source Code produced by the Producing
`Party shall be made available simultaneously at the same review location,
`and if possible on the same Source Code Computer. For the avoidance of
`doubt, this does not require all Parties’ Source Code to be made available
`at a single, same location or on a single, same Source Code Computer.
`Prior to the first inspection of Source Code, the Receiving Party shall
`
`
`
`4
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`

`

`C.
`
`provide seven (7) days’ notice that the Receiving Party intends to inspect
`the Source Code. The Receiving Party shall provide no fewer than
`seventy-two (72) hours’ notice prior to any subsequent inspections of
`Source Code. The foregoing first inspection notice period shall not apply
`in the event that the Producing Party makes Additional Source Code
`available during an ongoing inspection by the Receiving Party that was
`not previously produced when the Receiving Party’s inspection began—in
`which case the Producing Party will use best efforts to make the
`Additional Source Code available to the Receiving Party during the
`ongoing review or at the soonest time after the ongoing review that is
`mutually acceptable to the Parties. Permission for access outside of the
`aforementioned times will not be unreasonably withheld, in light of, and to
`accommodate for COVID-19 in-person review limitations.
`Source Code that is designated “HIGHLY CONFIDENTIAL SOURCE
`CODE SUBJECT TO PROTECTIVE ORDER” shall be produced for
`inspection and review subject to the following provisions, unless
`otherwise agreed by the Producing Party:
`i. All Source Code shall be made available by the Producing Party to the
`Receiving Party’s outside counsel and/or experts in a secure room on a
`secured computer without Internet access or network access to other
`computers and on which all access ports have been disabled (except
`for one printer port), as necessary and appropriate to prevent and
`protect against any unauthorized copying, transmission, removal or
`other transfer of any Source Code outside or away from the computer
`on which the Source Code is provided for inspection (the “Source
`Code Computer” in the “Source Code Review Room”). The
`Producing Party shall install tools that are sufficient for viewing and
`searching the code produced, on the platform produced, if such tools
`exist and are presently used in the ordinary course of the Producing
`Party’s business. The Receiving Party’s outside counsel and/or
`experts may request that commercially available software tools for
`viewing and searching Source Code be installed on the secured
`computer, provided, however, that (a) the Receiving Party possesses
`an appropriate license to such software tools; (b) the Producing Party
`approves such software tools (with approval not being unreasonably
`withheld); and (c) such other software tools are reasonably necessary
`for the Receiving Party to perform its review of the Source Code
`consistent with all of the protections herein. Such commercially
`available software tools shall not be capable of compiling, assembling,
`or building the source code and must otherwise be consistent with the
`security purposes of this Protective Order and, for example, shall not
`re-activate the secure computer’s ports, reactivate any of its wireless
`devices or capabilities, re-activate electronic or physical copying, or
`otherwise defeat the security provisions. The Receiving Party must
`provide the Producing Party with the CD or DVD containing such
`licensed software tool(s) at least five (5) business days in advance of
`
`
`
`5
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`

`

`iii.
`
`iv.
`
`the date upon which the Receiving Party wishes to have the additional
`software tools available for use on the Source Code Computer.
`ii. No recordable media or recordable devices, including without
`limitation sound recorders, computers, cellular telephones, peripheral
`equipment, cameras, CDs, DVDs, or drives of any kind, shall be
`permitted into the Source Code Review Room.
`The Receiving Party’s outside counsel and/or experts shall be entitled
`to take notes relating to the Source Code but may not copy or include
`any portions or sections of the Source Code into the notes and may not
`take such notes electronically on the Source Code Computer itself or
`any other computer.
`The Producing Party may visually monitor the activities of the
`Receiving Party’s representatives during any Source Code review, but
`only to ensure that no unauthorized electronic records of the Source
`Code and no information concerning the Source Code are being
`created or transmitted in any way.
`v. No copies of all or any portion of the Source Code may leave the room
`in which the Source Code is inspected except as otherwise provided
`herein. Further, no other written or electronic record of the Source
`Code is permitted except as otherwise provided herein.
`a. The Producing Party shall make available a laser printer with
`commercially reasonable printing speeds for on-site printing
`during inspection of the Source Code. The Receiving Party
`may print limited portions of the Source Code that the
`Receiving Party believes in good faith are necessary to understand
`a relevant feature of an accused product.
`b. Any printed portion that consists of more than fifteen (15)
`pages of a continuous block of Source Code shall be presumed
`to be excessive, absent the agreement of the Producing Party or
`an order from the Administrative Law Judge. The burden shall
`be on the Receiving Party to demonstrate the need for such a
`printed copy of continuous block of Source Code in excess of
`the fifteen (15) page limit. The Receiving Party may print out
`no more than one-hundred and fifty (150) pages total for any
`Source Code software release (i.e., version). With respect to
`both the ten-page limit of continuous block of Source Code and
`the one-hundred-fifty-page limit of total Source Code
`referenced in this subsection, the Parties agree to meet and
`confer in good faith to resolve any dispute should it become
`evident once review of Source Code starts that these limits are
`too low. The burden to demonstrate they are too low shall
`remain with the Receiving Party. One page of printed Source
`Code shall mean one column of Source Code printed in size 12
`font on one single-sided sheet of paper, measuring 8 and 1/2
`
`
`
`6
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`

`

`inches by 11 inches. The Receiving Party shall not print
`Source Code in order to review blocks of Source Code
`elsewhere in the first instance, i.e., as an alternative to
`reviewing that Source Code electronically on the Source Code
`Computer, as the Parties acknowledge and agree that the
`purpose of the protections herein would be frustrated by
`printing portions of code for review and analysis elsewhere,
`and that printing is permitted only when necessary to prepare
`court filings or pleadings or other papers (including a testifying
`expert’s expert report). Upon printing any such portions of
`Source Code, the printed pages shall be collected by the
`Producing Party. The Producing Party shall Bates number,
`copy, and label “HIGHLY CONFIDENTIAL SOURCE CODE
`SUBJECT TO PROTECTIVE ORDER” any pages printed by
`the Receiving Party. Within three (3) business days, the
`Producing Party shall either (i) provide one (1) hard copy set of
`such pages to the Receiving Party or (ii) inform the Receiving
`Party that it objects because the printed portions are excessive
`and/or not done for a permitted purpose. The Producing Party
`and Receiving Party agree to meet and confer within two (2)
`business days of service of the Producing Party’s objection to
`attempt to resolve such objection. If the Supplier and Receiving
`Party cannot resolve such objection during this meet and
`confer, the Receiving Party may file a motion to compel the
`production of the requested Source Code. The burden shall be
`on the Receiving Party to demonstrate that such printed
`portions are no more than is reasonably necessary for a
`permitted purpose and not merely printed for the purposes of
`review and analysis elsewhere. The printed pages shall
`constitute part of the Source Code produced by the Producing
`Party in this action.
`c. During the review of Source Code, if the Receiving Party believes
`in good faith that contemporaneous access to print-outs of
`particular pages of the Source Code is necessary to further the
`Source Code review, the Receiving Party may request and the
`Producing Party shall promptly provide one (1) hard copy print
`out of such pages. All printed copies of such Source Code shall
`be returned to the supplying party after such contemporaneous
`access by the Receiving Party, and at a minimum at the end of
`each day of source code review. The Receiving Party shall limit
`its requests for contemporaneous access to printouts to those
`pages actually necessary to conduct the Source Code review.
`Further, the limits of Section 23(C)(v)(b) of this addendum shall
`apply to this provision also for purposes of printing on any given
`day. For the avoidance of doubt, printing under this Section
`23(C)(v)(c) shall not apply to the production limit of one-
`hundred-fifty (150) pages total for printed source code under
`
`
`
`7
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`

`

`Section 23(C)(v)(b).
`vi. All persons who will review a Producing Party’s Source Code on
`behalf of a Receiving Party, including members of a Receiving Party’s
`outside law firm and Qualified Experts, shall be identified in writing to
`the Producing Party at least five (5) days in advance of the first time
`that such person reviews such Source Code. Such identification shall
`be in addition to any other disclosure required under this Order. All
`persons viewing Source Code shall sign on each day they view Source
`Code a log that will include the names of persons who enter the locked
`room to view the Source Code and when they enter and depart. The
`Producing Party shall be entitled to a copy of the log upon one (1)
`business day’s advance notice to the Receiving Party.
`vii. Unless otherwise agreed in advance by the Parties in writing,
`following each day on which inspection is done under this Order, the
`Receiving Party’s outside counsel and/or experts shall remove all
`notes, documents, and all other materials from the Source Code
`Review Room. The Producing Party shall not be responsible for any
`items left in the room following each inspection session, and the
`Receiving Party shall have no expectation of confidentiality for any
`items left in the room following each inspection session without a
`prior agreement to that effect. Proper identification of all authorized
`persons shall be provided prior to any access to the secure room or the
`computer containing Source Code. Proper identification requires
`showing, at a minimum, a photo identification card sanctioned by the
`government of any State of the United States, by the government of
`the United States, or by the nation state of the authorized person’s
`current citizenship. Access to the secure room or the Source Code
`Computer may be denied, at the discretion of the supplier, to any
`individual who fails to provide proper identification.
`viii. Other than as provided above, the Receiving Party will not copy,
`remove, or otherwise transfer any Source Code from the Source Code
`Computer including, without limitation, copying, removing, or
`transferring the Source Code onto any recordable media or recordable
`device. The Receiving Party will not transmit any Source Code in any
`way from the Producing Party’s facilities or the offices of its outside
`counsel of record.
`The Receiving Party’s outside counsel of record may make no more
`than three (3) additional paper copies of any portions of the Source
`Code received from a Producing Party pursuant to Paragraph 23(C)(v),
`not including copies attached to court filings, used at depositions, or
`provided to the Commission Investigative Staff, and shall maintain a
`log of all paper copies of the Source Code. The log shall include the
`names of the reviewers and/or recipients of paper copies and locations
`where the paper copies are stored. Upon one (1) business day’s
`advance notice to the Receiving Party by the Producing Party, the
`
`ix.
`
`
`
`8
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`

`

`xii.
`
`xi.
`
`Receiving Party shall provide a copy of this log to the Producing
`Party.
`x. An additional one (1) copy of printed Source Code received from a
`Producing Party pursuant to Paragraph 23(C)(v) shall be provided by
`the Producing Party to the Commission Investigative Staff upon
`request.
`The Receiving Party’s outside counsel of record and any person
`receiving a copy of any Source Code shall maintain and store any
`paper copies of the Source Code at their offices in a manner that
`prevents duplication of or unauthorized access to the Source Code,
`including, without limitation, storing the Source Code in a locked
`room or cabinet at all times when it is not in use. The Receiving Party
`shall limit access to any printed portions of the source code to “Source
`Code Qualified Persons” and defined above by paragraph 20 of this
`source code protective order.
`Except as provided in this sub-paragraph, 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 the Source Code from any paper copy of Source Code for
`use in any manner (including by way of example only, the Receiving
`Party may not scan the Source Code to a PDF or photograph the code).
`Images or copies of Source Code shall not be included in
`correspondence between the Parties (references to production numbers
`shall be used instead), and shall be omitted from pleadings and other
`papers whenever possible. If a Party reasonably believes that it needs
`to submit a portion of Source Code as part of a filing with the Court,
`the Parties shall meet and confer as to how to make such a filing while
`protecting the confidentiality of the Source Code and such Source
`Code will not be filed absent agreement from the Producing Party that
`the confidentiality protections will be adequate. If a Producing Party
`agrees to produce an electronic copy of all or any portion of its Source
`Code or provide written permission to the Receiving Party that an
`electronic or any other copy needs to be made for a Court filing, access
`to the Receiving Party’s submission, communication, and/or disclosure
`of electronic files or other materials containing any portion of Source
`Code (paper or electronic) shall at all times be limited solely to
`individuals who are expressly authorized to view Source Code under
`the provisions of this Order. Where the Producing Party has provided
`the express written permission required under this provision for a
`Receiving Party to create electronic copies of Source Code, the
`Receiving Party shall maintain a log of all such electronic copies of
`any portion of Source Code in its possession or in the possession of its
`retained consultants, including the names of the reviewers and/or
`recipients of any such electronic copies, and the locations and manner
`in which the electronic copies are stored. Additionally, any such
`
`
`
`9
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`

`

`electronic copies must be labeled “HIGHLY CONFIDENTIAL
`SOURCE CODE SUBJECT TO PROTECTIVE ORDER” as provided
`for in this Order.
`Use of HIGHLY CONFIDENTIAL SOURCE CODE SUBJECT TO
`
`24.
`
`PROTECTIVE ORDER.
`
`C.
`
`B.
`
`A. Where absolutely necessary in connection with a filing or expert report, or where
`required by the Administrative Law Judge, a Receiving Party may make only as
`many copies, and only of the specific pages, as needed for submission of original
`Source Code printouts to be included in confidential pleadings, infringement
`contentions, expert reports, and/or witness statements, where such pleadings,
`infringement contentions, expert reports, and/or witness statements are designated
`HIGHLY CONFIDENTIAL SOURCE CODE SUBJECT TO PROTECTIVE
`ORDER. If a Producing Party’s Source Code is quoted or set forth in a
`confidential pleading, infringement contentions, expert report, and/or witness
`statement, the Receiving Party will limit the amount of such Source Code to what
`is reasonably necessary for the Receiving Party to make its point.
`For depositions, a Receiving Party may, on reasonable notice, request that
`Producing Party provide at the deposition an electronic copy of Producing Party
`Source Code that it made available for inspection. The computer upon which the
`Source Code is made available at the deposition shall include appropriate
`software analysis tools as discussed in Paragraph 23.
`A Party that wishes to use any printed copies of Producing Party’s Source Code at
`a deposition or at a hearing may not make copies of the material for this purpose
`without Producing Party’s prior written consent. Absent such consent, the Party
`must provide Producing Party with five (5) business days’ advance notice of its
`need for printed copies and identify the required pages by production number.
`Producing Party will then either authorize the Party to prepare copies for use in
`the deposition or hearing or agree to supply copies itself on the day of the
`deposition or hearing. At the conclusion of the deposition or hearing, the copies
`will be returned to Producing Party or destroyed. Copies will not be attached to
`any deposition transcripts. Any copies prepared for use at a hearing that are not
`admitted into evidence shall be destroyed or returned to Producing Party. The
`entire transcript of any deposition at which Producing Party’s Source Code is
`disclosed will be treated as designated HIGHLY CONFIDENTIAL SOURCE
`CODE SUBJECT TO PROTECTIVE ORDER for thirty (30) days. During that
`period, Producing Party may designate any portion of the deposition transcript as
`HIGHLY CONFIDENTIAL SOURCE CODE SUBJECT TO PROTECTIVE
`ORDER by giving written notice to the reporter and all parties. The court
`reporter shall separately bind and label transcript pages that Producing Party
`designates as HIGHLY CONFIDENTIAL SOURCE CODE SUBJECT TO
`PROTECTIVE ORDER. Any portions that the Party does not designate during
`that 30-day period will then be treated as CONFIDENTIAL BUSINESS
`INFORMATION SUBJECT TO PROTECTIVE ORDER.
`
`
`
`10
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`

`

`D.
`
`E.
`
`A Receiving Party’s Outside Counsel of Record will maintain the delivered copy
`sets of the Source Code in a locked location at the office(s) of Outside Counsel of
`Record to which they were delivered and where they will not be accessible to
`persons other than SOURCE CODE QUALIFIED PERSONS. No copy set will
`be removed from the location to which it was delivered without prior approval
`from Producing Party. In addition to other reasonable steps to maintain the
`security and confidentiality of Producing Party’s Source Code, printed copies of
`the Source Code maintained by the Receiving Party must be kept in a locked
`storage container when not being actively reviewed.
`The Receiving Party’s Counsel of Record shall keep a log that records the identity
`of each SOURCE CODE QUALIFIED PERSON to whom each hard copy of the
`Source Code is provided and when it was provided to that person. Within thirty
`(30) days after the issuance of a final, non-appealable decision resolving all issues
`in the Investigation, upon request, the Receiving Party must serve upon Producing
`Party the log. In addition, any Outside Consultants of the Receiving Party with
`whom the paper copies of the Source Code were shared must certify in writing
`that all copies of the Source Code that was shared with them at the offices of
`Outside Counsel were retained by the counsel, who provided them the
`information, and that the Outside Consultants will make no use of the Source
`Code or of any knowledge gained from the Source Code in any future endeavor.
`The Commission Investigative Staff shall have the right to review material
`produced in this Investigation in the same manner that such material is made
`available to any private party.
`Secure Storage, No Export. Source Code must be stored and maintained at a
`location in the United States and in a secure manner that ensures that access is
`limited to the persons authorized under this Order. To ensure compliance with
`applicable United States Export Administration Regulations, source code may not
`be exported outside the United States or released to any foreign national (even if
`within the United States).
`H. Within sixty (60) calendar days after the determination in this Investigation
`becomes final (as is understood in 28 U.S.C. § 1659(a)), the Receiving Party must
`serve upon the Producing Party a certification of the destruction of all copies of
`the Producing Party’s Source Code. Any copies of Source Code shall be
`destroyed using a secure shredder that will prevent access to the materials by non-
`SOURCE CODE QUALIFIED PERSONS. The shredded materials shall be
`disposed of in a manner that will preserve the confidentiality of the contents
`consistent with this Protective Order. The destruction of Producing Party’s
`Source Code shall be conducted by SOURCE CODE QUALIFIED PERSONS
`only.
`Access to and review of Source Code shall be strictly for the purpose of
`investigating the claims and defenses at issue in the above-styled case. No person
`shall review or analyze any Source Code for purposes unrelated to this case, nor
`may any person use any knowledge gained as a result of reviewing Source Code
`
`F.
`
`G.
`
`I.
`
`
`
`11
`
`

`

`in this Investigation in any other pending or future dispute, proceeding, or
`litigation.
`No prejudice. The Private Parties agree that seeking entry and entry of this
`
`25.
`
`Protective Order Addendum are without prejudice to any party’s rights to seek relief from these
`
`provisions relating to Source Code production, or to propose, request, or otherwise move for
`
`different provisions relating to Source Code production, in this or any other litigation.
`
`26.
`
`This Protective Order Addendum shall not diminish any existing restriction with
`
`respect to CONFIDENTIAL BUSINESS INFORMATION, SUBJECT TO PROTECTIVE
`
`ORDER, as defined in paragraph 2 of the Protective Order. The Private Parties acknowledge and
`
`agree that this Protective Order Addendum is a supplement to the Protective Order entered in this
`
`action on May 26, 2021. The Protective Order applies to all material designated pursuant to this
`
`Protective Order Addendum. To the extent that there is any confusion or conflict between
`
`protect