`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
`
`
`
`
`2:22-MD-03034-TGB
`
`HON. TERRENCE G. BERG
`
`
`
`
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`PROTECTIVE ORDER
`Pursuant to Federal Rule of Civil Procedure 26(c), the Court hereby enters
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`the following protective order:
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`1.
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`Designated Material – Any document or thing that a producing party
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`reasonably and in good faith believes to contain confidential information that is not
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`publicly available (such as research and development, commercial, or other
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`sensitive information) may be produced by that party with the clear and obvious
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`designation “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY,” or “CONFIDENTIAL – RECEIVING PARTY ONLY”
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`(“Designated Material”). The legend or stamp shall be placed on each page of the
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`Protected Material (except deposition and hearing transcripts) for which such
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`protection is sought. For deposition and hearing transcripts, the legend or stamp
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`1
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8949 Filed 02/07/23 Page 2 of 18
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`shall be placed on the cover page of the transcript (if not already present on the
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`cover page of the transcript when received from the court reporter) by each
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`attorney receiving a copy of the transcript after that attorney receives notice of the
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`designation of some or all of that transcript as Designated Material.
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`2.
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`Non-Disclosure of Confidential Information – Any document or
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`thing designated as “CONFIDENTIAL” may only be used to prosecute or defend
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`this action and shall not be disclosed to (or the content discussed with) anyone
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`other than the following persons:
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`a.
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`Outside counsel of record in this Action and their support staff
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`(e.g., copying and document management personnel).
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`b.
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`Personnel of the receiving party to the extent reasonably
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`necessary for the litigation of this Action.
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`c.
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`Independent experts or consultants engaged by a party’s
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`attorneys to assist in the preparation and trial of this case who
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`agree to abide by the terms of this Protective Order by signing
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`Exhibit A and who are approved by the producing party
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`pursuant to paragraph 7 below.
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`d.
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`Deposition witnesses of the producing party whose testimony is
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`being taken with respect to the document or thing, or about the
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`2
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8950 Filed 02/07/23 Page 3 of 18
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`subject matter of the document or thing, who (i) agree to abide
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`by the terms of this Protective Order, (ii) are the author or
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`recipient of a document containing the information or a
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`custodian or other person who otherwise possessed or knew the
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`information, or (iii) are listed as a corporate designee for which
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`the document is relevant.
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`e.
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`Independent litigation support services, including persons
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`working for or as court reporters, graphics or design services,
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`jury or trial consulting services, and photocopy, document
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`imaging, and database services retained by counsel and
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`reasonably necessary to assist counsel with the litigation of this
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`Action.
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`f. Anyone else to whom the designating party consents, as long as
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`such consent is provided in writing by the designating party or
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`its outside counsel of record.
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`g.
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`This Court and its staff members.
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`3.
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`Non-Disclosure of Confidential – Receiving Party Only
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`Information – Any Designated Material which the designating party believes
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`should be limited solely to the receiving party (for example, settlement
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`3
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8951 Filed 02/07/23 Page 4 of 18
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`communications with a particular defendant not shared with other co-defendants)
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`may be produced with the clear and obvious designation “CONFIDENTIAL –
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`RECEIVING PARTY ONLY.” Documents produced with this designation shall be
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`treated the same as those designated “CONFIDENTIAL,” except that, with respect
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`to paragraphs 2.a., 2.c., 2.d., and 2.e., the documents may only be shared with
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`outside counsel, experts, deposition witnesses, or support services of the receiving
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`party itself, rather than those of any party.
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`4.
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`Non-Disclosure of Highly Confidential– Attorneys’ Eyes Only
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`Information– Any document or thing that a party reasonably and in good faith
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`believes to contain highly confidential information that is not publicly available
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`(such as a trade secret, or highly confidential research and development,
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`commercial, or other sensitive information) may be produced by that party with the
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`clear and obvious designation “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY.” Any document or thing produced with this designation may only
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`be used to prosecute or defend this action and shall not be disclosed to (nor the
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`content discussed with) anyone other than the persons set forth above in
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`Paragraphs 2.a and 2.c-2.g.
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`5.
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`Disclosure to Experts and Consultants – Before any Designated
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`Material is disclosed to an independent expert or consultant, the receiving party
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`4
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8952 Filed 02/07/23 Page 5 of 18
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`shall give the producing party five business (5) days written notice of the proposed
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`expert by providing the following information:
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`a. the expert or consultant’s name and the city and state of his or her
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`primary residence;
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`b. the expert or consultant’s current CV;
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`c. the expert or consultant’s current employer(s);
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`d. a list of litigation matters in which the expert has provided a report or
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`testified (at trial or deposition) including the name and number of the
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`case, filing date, and location of court; and
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`e. a list of companies that the individual has been employed by or
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`provided consulting services pertaining to the field of the invention of
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`the patent(s)-in-suit or the products accused of infringement within
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`the last four (4) years and a brief description of the subject matter of
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`the consultancy or employment.
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`If the producing party objects to the consultant or expert, it must notify the
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`receiving party in writing that it objects to the disclosure of the Protected Material
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`to the consultant or expert within five business (5) days of disclosure. The parties
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`shall first attempt to resolve their disagreement without Court intervention. If the
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`producing party objects to the expert, no designated material or information of the
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`5
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8953 Filed 02/07/23 Page 6 of 18
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`producing party shall be disclosed to the expert or consultant until the issue is
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`resolved by agreement of the affected parties or by the Court. A Party that receives
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`a timely written objection must meet and confer with the designating party
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`(through direct voice to voice dialogue) to try to resolve the matter by agreement
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`within five (5) business days of the written objection. The objecting party bears the
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`burden of moving for a protective order to prevent disclosure to the consultant or
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`expert within 14 days from when the objecting party notifies the receiving party of
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`its objection.
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`6.
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`Deposition Testimony – Any portions of requested testimony, a
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`transcript and/or a brief may be designated as “CONFIDENTIAL,”
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`“CONFIDENTIAL – RECEIVING PARTY ONLY,” or “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” pursuant to this Order.
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`Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
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`deposition or hearing transcript, designate the deposition or hearing transcript or a
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`portion thereof accordingly. Until expiration of the 30-day period, the entire
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`deposition or hearing transcript shall be treated as “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.”
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`
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`7. Motion Practice – This Order does not authorize the filing of any
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`documents under seal. Local Rule 5.3 shall apply to the sealing of documents
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`6
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8954 Filed 02/07/23 Page 7 of 18
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`submitted as part of a motion or other court filing. Documents may be sealed only
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`as authorized by statute, rule, or specific order of the Court. The Court notes that
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`the standards under Rule 26 for entering a protective order to govern discovery
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`differ from the more demanding standards for sealing off judicial records from
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`public view. Shane Group, Inc. v. Blue Cross Blue Shield of Michigan, 825 F.3d
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`299 (6th Cir. 2016). There is a “strong presumption in favor of openness’ regarding
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`court records.” Id. at 305 (quoting Brown & Williamson Tobacco Corp. v. F.T.C.,
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`710 F.3d 1165, 1180 (6th Cir. 1983).
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`8.
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`Discovery from Third Parties – To the extent that any discovery is
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`taken of persons who are not Parties to this Action (“Third Parties”) and in the
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`event that such Third Parties contend the discovery sought involves trade secrets,
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`confidential business information, or other proprietary information, then such
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`Third Parties may agree to be bound by this Order.
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`a.
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`To the extent that discovery or testimony is taken of Third
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`Parties, the Third Parties may designate as “CONFIDENTIAL,”
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`or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY,” any documents, information, or other material, in
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`whole or in part, produced by such Third Parties. The Third
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`Parties shall have ten (10) days after production of such
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`7
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8955 Filed 02/07/23 Page 8 of 18
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`documents, information, or other materials to make such a
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`designation. Until that time period lapses or until such a
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`designation has been made, whichever occurs sooner, all
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`documents, information, or other material so produced or given
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`shall be treated as “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” in accordance with this Order.
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`b.
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`In the event that disclosure is sought in this case of any
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`documents, information, or other material (“Third-Party
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`Confidential Material”) that is designated as confidential,
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`restricted, or otherwise shielded from public disclosure in
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`whole or in part by a Protective Order or similar
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`AGREEMENT giving rise to an obligation of confidentiality
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`between the party from whom production is sought and one or
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`more Third Parties (“Third-Party Protective Order”), the
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`producing party shall as promptly as possible, and no later than
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`the due date of the response to the request for production: (1)
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`notify all other parties to the Third-Party Protective Order as
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`required by the Third-Party Protective Order, (2) provide all
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`such parties with a copy of this Protective Order, (3) initiate the
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`8
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8956 Filed 02/07/23 Page 9 of 18
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`procedure provided by the Third-Party Protective Order to
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`allow the Third-Party Confidential Material to be disclosed to
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`the receiving party, (4) immediately notify the receiving party
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`of the existence of the Third-Party Protective Order, and (5)
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`provide the receiving party with a full copy of the Third-Party
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`Protective Order. The producing party shall bear the burden
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`and expense of ensuring that the disclosure to the receiving
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`party complies with the requirements of the Third-Party
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`Protective Order. Nothing in this paragraph should be
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`construed as requiring the production of privileged material, nor
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`as authorizing, encouraging, or requiring any party to disobey a
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`lawful order or directive from another court.
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`9.
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`Challenging “Confidential” or “Highly Confidential” Designation
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`– Any party that wishes to challenge the designation of any document, thing, or
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`testimony as confidential or highly confidential under Federal Rule of Civil
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`Procedure 26(c) may request in writing to the other producing party that the
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`designation given to any Designated Material be modified or withdrawn. If the
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`designating party does not agree to re-designation within ten (10) days of receipt of
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`the written request, the requesting party may apply to the Court for relief by way of
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`9
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8957 Filed 02/07/23 Page 10 of 18
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`motion to this Court. Such application shall be treated procedurally as a motion to
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`compel pursuant to Federal Rule of Civil Procedure 37, subject to the Rule’s
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`provisions relating to sanctions. In making such application, the requirements of
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`the Federal Rules of Civil Procedure and the Local Rules of the Court shall be met.
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`The designating party shall have the burden of justifying its designation. Pending
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`the Court’s determination of the application, the designation of the designating
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`party shall be maintained.
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`10. Trial Testimony – This Protective Order shall not govern
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`proceedings at trial.
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`11. Termination of Lawsuit – All Designated Material and all copies
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`thereof, shall within 30 days of the final disposition of this action either be (i)
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`returned to the party that produced them or (ii) destroyed with permission of the
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`party that produced them. Final disposition shall be deemed to be the later of (1)
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`dismissal of all claims and defenses in this action, with or without prejudice; and
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`(2) final judgment herein after the completion and exhaustion of all appeals,
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`rehearings, remands, trials, or reviews of this action, including the time limits for
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`filing any motions or applications for extension of time pursuant to applicable law
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`and the time limits for filing a petition for writ of certiorari to the Supreme Court
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`of the United States, if applicable. This provision shall not apply to documents and
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`10
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8958 Filed 02/07/23 Page 11 of 18
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`things the Court determines are not confidential. Notwithstanding this provision,
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`outside counsel of record in this lawsuit are entitled to retain a copy of all
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`pleadings, motion papers, trial, deposition, and hearing transcripts, legal
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`memoranda, correspondence, deposition and trial exhibits, expert reports, attorney
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`work product, and consultant and expert work product, even if such materials
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`contain Designated Material. Any such archival copies that contain or constitute
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`protected material remain subject to this Protective Order. Further, Counsel are not
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`required to purge document management systems, email accounts, or backup tapes
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`to eliminate Designated Material.
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`12. Production – Production of Designated Material by any party shall
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`not be deemed a publication of the documents, information, or material (or the
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`contents thereof) produced so as to void or make voidable whatever claim the
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`parties may have as to the proprietary and confidential nature of the documents,
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`information, or other material or its contents.
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`13.
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`Inadvertent Production of Privileged Material – Any inadvertent
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`production of privilege or work product protected material shall not result in the
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`waiver of any associated privilege (attorney-client privilege, work product
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`doctrine, etc.). And, nothing in this Order shall require production of documents,
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`information or other material that a party contends is protected from disclosure by
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`11
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8959 Filed 02/07/23 Page 12 of 18
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`the attorney-client privilege, the work product doctrine, or other privilege,
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`doctrine, or immunity. If documents, information or other material subject to a
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`claim of attorney-client privilege, work product doctrine, or other privilege,
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`doctrine, or immunity are produced, such production shall in no way prejudice or
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`otherwise constitute a waiver of, or estoppel as to, any such privilege, doctrine, or
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`immunity. Any party that produces documents, information or other material it
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`reasonably believes are protected under the attorney client privilege, work product
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`doctrine, or other privilege, doctrine, or immunity shall, within ten (10) business
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`days after discovery of the disclosure, so advise the receiving party in writing,
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`request such documents or material be returned. It is further agreed that the
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`receiving party will return or destroy such documents or material, and all copies
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`and derivations, within three (3) business days of the receiving party’s receipt of a
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`written request for the return of the documents or material, shall confirm to the
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`producing party the destruction or return of such material, and shall not use, and
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`shall immediately cease any prior use of, such material, including to assess or
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`challenge the assertion of privilege. If the receiving party discovers the producing
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`party may have inadvertently disclosed documents, information or other material
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`subject to a claim of attorney-client privilege, work product doctrine, or other
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`privilege, doctrine, or immunity, the receiving party must immediately notify the
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`12
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8960 Filed 02/07/23 Page 13 of 18
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`producing party. However, the disclosure of any particular material shall cease to
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`be “inadvertent” if the receiving party notifies the producing party of the disclosure
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`and the producing party does not request the return of the privileged matter within
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`10 days.
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`14. Prosecution Bar – Unless otherwise permitted in writing between
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`Producing Party and Receiving Party, any individual who personally receives,
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`other than on behalf of Producing Party, any material designated “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall not participate in
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`amending or drafting patent specifications or claims before a Patent Office of any
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`patent or patent application related to the HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY disclosed material, from the time of receipt of such
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`material through the date the individual person(s) cease to have access to materials
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`designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`material, as well as any materials that contain or disclose the HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY disclosed material. This
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`provision shall not preclude the representation of a party involved in any post-grant
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`proceedings, including without limitation reexamination, covered business method
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`(CBM), inter partes review (IPR) post grant review (PGR) or opposition
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`proceedings. If and when amending or drafting patent specifications or claims
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`13
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8961 Filed 02/07/23 Page 14 of 18
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`occurs in any post-grant proceeding, any individual who personally receives, other
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`than on behalf of Producing Party, any material designated “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” shall be barred from future
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`participation in that proceeding for the duration of the prosecution bar (i.e., through
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`the date the individual ceases to have access to materials designated “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” material or any materials that
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`contain or disclose the HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY disclosed material).
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`15. Inadvertent Failures to Designate – An inadvertent failure to
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`designate qualified information or items does not, standing alone, waive the
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`designating party’s right to secure protection under this Protective Order for such
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`material. Upon the producing party providing written notice of a correction of a
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`designation made within 10 days from the discovery of the inadvertent failure to
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`designate, the receiving party must make all reasonable efforts to assure that the
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`material is treated in accordance with the provisions of this Protective Order. The
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`producing Party may request destruction of the inadvertently undesignated material
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`by notifying the recipient(s), as soon as reasonably possible after the producing
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`Party becomes aware of the inadvertent or unintentional disclosure, and providing
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`replacement protected material that is properly designated. The recipient(s) shall
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`14
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8962 Filed 02/07/23 Page 15 of 18
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`then destroy all copies of the inadvertently or unintentionally produced protected
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`materials and any documents, information or material derived from or based
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`thereon.
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`16. Safeguard – There shall be no disclosure of any Designated Material by
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`any person authorized to have access thereto to any person who is not authorized
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`for such access under this Order. The Parties are hereby ORDERED to safeguard
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`all such documents, information, and material to protect against disclosure to any
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`unauthorized persons or entities. If a receiving party learns that, by inadvertence or
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`otherwise, it has disclosed protected material to any person or in any circumstance
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`not authorized under this Protective Order, the receiving party must immediately
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`(a) notify in writing the designating party of the unauthorized disclosures, (b) use
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`its best efforts to retrieve and have destroyed all unauthorized copies of the
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`protected material, (c) inform the person or persons to whom unauthorized
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`disclosures were made of all the terms of this Protective Order, and (d) request
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`such person or persons agree to abide by the terms of this Protective Order.
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`17. Reservation of Rights –The parties shall also retain the right to file a
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`motion with the Court (a) to modify this Order to allow disclosure of Designated
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`Material to additional persons or entities if reasonably necessary to prepare and
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`15
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8963 Filed 02/07/23 Page 16 of 18
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`present this Action; and (b) to apply for additional protection of Designated
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`Material.
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`Dated: February 7, 2023
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`SO ORDERED
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`/s/Terrence G. Berg
`Honorable Terrence G. Berg
`United States District Court Judge
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`16
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8964 Filed 02/07/23 Page 17 of 18
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
`
`
`
`IN RE NEO WIRELESS, LLC
`PATENT LITIG.
`
`
`
`
`2:22-MD-03034-TGB
`
`HON. TERRENCE G. BERG
`
`
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`
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`EXHIBIT A – AGREEMENT TO BE BOUND BY PROTECTIVE ORDER
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`1.
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`2.
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`I,
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`, declare as follows:
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`I have read the Protective Order in the above captioned case.
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`I promise that I will only use the documents and things designated as
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`“CONFIDENTIAL,” “CONFIDENTIAL – RECEIVING PARTY ONLY,”
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`or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” that are
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`given to me for purposes of this lawsuit.
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`3.
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`I promise that I will not disclose or discuss information that I learn from
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`documents
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`and
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`things
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`designated
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`as
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`“CONFIDENTIAL,”
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`“CONFIDENTIAL – RECEIVING PARTY ONLY,” or “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” with anyone other
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`than the persons described in the Protective Order.
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`17
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`Case 2:22-md-03034-TGB ECF No. 125, PageID.8965 Filed 02/07/23 Page 18 of 18
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`4.
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`I acknowledge that, by signing this agreement, I am subjecting myself to
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`the jurisdiction of the United States District Court for the Eastern District
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`of Michigan with respect to enforcement of this Protective Order.
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`5.
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`I understand that any disclosure or use of documents or things designated
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`as “CONFIDENTIAL,” “CONFIDENTIAL – RECEIVING PARTY
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`ONLY,” or “HIGHLY CONFIDENTIAL – ATTORNEY’S EYES ONLY,”
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`or information learned from the documents or things, in any manner
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`contrary to the provisions of the Protective Order may subject me to
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`sanctions for contempt of court.
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`Date:
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`[Signature]
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`18
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