Case 3:20-cv-05784-ZNQ-DEA Document 87 Filed 08/26/21 Page 1 of 35 PageID: 3135
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
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`OANDA Corporation,
`Plaintiff,
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`v.
`GAIN Capital Holdings Inc.,
`GAIN Capital Group, LLC,
`Defendants.
`
`Civil Action No.
`3:20-05784-BRM-DEA
`Document Filed Electronically
`JURY TRIAL DEMANDED
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`STIPULATED CONFIDENTIALITY ORDER
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`WHEREAS, Plaintiff OANDA Corporation and Defendants GAIN Capital Holdings Inc.
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`and GAIN Capital Group, LLC, each a “Party” and together “the Parties,” believe that certain
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`information that is or will be encompassed by discovery demands by the Parties involves the
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`production or disclosure of trade secrets, confidential business information, or other proprietary
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`information; and
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`WHEREAS, the Parties seek a confidentiality order limiting disclosure thereof in accordance
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`with Federal Rule of Civil Procedure 26(c); and
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`WHEREAS good cause exists for entry of this Order, see Fed. R. Civ. P. 26(c), Pansy v.
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`Borough of Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994); and
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`WHEREAS all Parties submit that they have gone to great lengths to safeguard and protect
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`the confidentiality of their own documents and information, and the disclosure of which would
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`pose a substantial risk of irreparable harm to the producing Party’s legitimate competitive, privacy,
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`business, and proprietary interests; and
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`WHEREAS this Confidentiality Order provides reasonable restrictions on the disclosure
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`of such sensitive materials of a confidential nature; and
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`WHEREAS all Parties agree to the terms of this Confidentiality Order to protect their
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`confidential documents and information; and
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`
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`WHEREAS to streamline the discovery process and minimize the need for Court
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`intervention, this Confidentiality Order adopts an “umbrella” approach that allows the producing
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`Party to designate certain materials being produced or deposition testimony as confidential; and
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`WHEREAS disclosure of materials designated as “CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE” are limited to specific classes of persons; and
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`
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`WHEREAS this Confidentiality Order contemplates requests to file confidential
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`documents with the Court under seal in accordance with the applicable rules and procedures, if
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`such documents need to be filed as part of motion practice or in connection with other aspects of
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`these proceedings; and
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`WHEREAS this Confidentiality Order provides that the Party requesting production of the
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`information may challenge the producing Party’s confidentiality designation before the Court,
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`thereby minimizing the likelihood that non-sensitive documents will be unnecessarily designated
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`as confidential; and
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`
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`WHEREAS this Order allocates to the producing Party the burden of justifying the
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`confidentiality designation, and orders of this type have been approved by the United States Court
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`of Appeals for the Third Circuit, see Pansy, 23 F.3d at 787 n.17, Cippollone v. Liggett Group, Inc.,
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`785 F.2d 1108, 1122 (3d Cir. 1986), cert denied, 484 U.S. 976 (1987); and
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`THEREFORE, in view of the foregoing and because the Parties hereto, by and through
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`their respective counsel, have stipulated to the entry of the following Confidentiality Order
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`pursuant to Fed. R. Civ. P. 26(c) and Local Civil Rule 5.3(b), and the Court having reviewed the
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`submitted declaration, and having determined that good cause exists for the entry of this Order, it
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`is STIPULATED, AGREED and ORDERED as follows:
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`1. DEFINITIONS
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`1.1. Challenging Party: a Party or Non-Party that challenges the designation of
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`information or items under this Order.
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`1.2. Competitive Decision-making: Competitive Decision-making shall have the
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`meaning given to it in U.S. Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984). An
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`individual is not involved in Competitive Decision-making solely by virtue of serving as counsel,
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`an expert, or an outside consulting expert in this litigation.
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`1.3.
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`“CONFIDENTIAL” Information or Items: information (regardless of how it is
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`generated, stored or maintained) or tangible things that qualify for protection under Federal Rule
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`of Civil Procedure 26(c).
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`1.4. Counsel (without qualifier): Outside Counsel of Record and In-House Counsel (as
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`well as their support staff).
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`1.5. Designated
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`In-House Counsel:
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`In-House Counsel who seek access
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`to
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`“CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`information in this matter in accordance with the definitions and limitations set forth in this
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`Confidentiality Order.
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`1.6. Designating Party: a Party or Non-Party that designates information or items that it
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`produces in disclosures or in responses to discovery as “CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE.”
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`1.7. Disclosure or Discovery Material: all items or information, regardless of the
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`medium or manner in which it is generated, stored, or maintained (including, among other things,
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`testimony, transcripts, and tangible things), that are produced or generated in disclosures or
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`responses to discovery in this matter.
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`1.8. Expert: an individual with specialized knowledge or experience in a matter
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`pertinent to the litigation who (1) has been retained by a Party or its counsel to serve as an expert
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`witness or as an outside consulting expert in this action, and (2) at the time of retention, is not
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`currently and is not anticipated to become an officer, director, employee, or consultant of a Party
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`or of a Party’s competitor. For the avoidance of doubt, an expert is defined to include the expert’s
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`administrative support staff (e.g., secretary or individuals responsible for photocopying,
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`organizing, storing, or retrieving information) but shall not include any support personnel
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`responsible for assisting with the substantive review or analysis of information produced or
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`disclosed under this Order. Any expert or outside consulting expert ultimately granted access
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`under this confidentiality order agrees that he or she shall not serve as an officer, director,
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`employee, or consultant of a Party for a period of two (2) years following the final disposition of
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`this litigation (as described in Paragraph 4), except this does not prohibit such expert witness or
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`outside consulting expert from being retained as an expert witness or outside consulting expert in
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`another litigation.
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`1.9.
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” Information or
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`Items: extremely sensitive “Confidential Information or Items,” disclosure of which to another
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`Party or Non-Party would create a substantial risk of serious harm that could not be avoided by
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`less restrictive means.
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`1.10. “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items: extremely
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`sensitive “Confidential Information or Items” representing Source Code and associated comments
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`and revision histories, formulas, engineering specifications, or schematics that define or otherwise
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`describe in detail the algorithms or structure of software or hardware designs, disclosure of which
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`to another Party or Non-Party would create a substantial risk of serious harm that could not be
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`avoided by less restrictive means. “Source Code” includes but is not limited to any human-
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`readable programming language or format that defines software, firmware or integrated circuits.
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`1.11.
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`In-House Counsel: attorneys who are employees of a party to this action and who
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`are responsible for the conduct of this litigation. In-House Counsel does not include Outside
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`Counsel of Record or any other outside counsel. With respect to GAIN Capital Holdings Inc. and
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`GAIN Capital Group, LLC and solely for purposes of this Confidentiality Order, In-House Counsel
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`may include employees of StoneX Group Inc.
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`1.12. Non-Party: any natural person, partnership, corporation, association, or other legal
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`entity not named as a Party to this action.
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`1.13. Outside Counsel of Record: attorneys who are not employees of a party to this
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`action but are retained to represent or advise a party to this action and have appeared in this action
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`on behalf of that party or are affiliated with a law firm which has appeared on behalf of that party.
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`1.14. Party: any party to this action, including all of its officers, directors, employees,
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`consultants, retained experts, and Outside Counsel of Record (and their support staffs).
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`1.15. Producing Party: a Party or Non-Party that produces Disclosure or Discovery
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`Material in this action.
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`1.16. Professional Vendors: persons or entities that provide litigation support services
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`(e.g., photocopying; videotaping;
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`translating; preparing graphics, displays, exhibits or
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`demonstrations; organizing, storing, or retrieving data in any form or medium; and other trial
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`preparation services) and their employees and subcontractors.
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`1.17. Protected Material: any Disclosure or Discovery Material that is designated as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or as
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`“HIGHLY CONFIDENTIAL – SOURCE CODE.” Protected Material shall not include: (i)
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`materials that have been actually published or publicly disseminated; and (ii) materials that show
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`on their face they have been disseminated to the public.
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`1.18. Receiving Party: a Party that receives Disclosure or Discovery Material from a
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`Producing Party.
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`2. SCOPE
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`The protections conferred by this Stipulation and Order cover not only Protected Material
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`(as defined above), but also (1) any information copied or extracted from Protected Material; (2)
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`all copies, excerpts, summaries, or compilations of Protected Material; and (3) any testimony,
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`conversations, or presentations by Parties or their Counsel that might reveal Protected Material.
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`However, the protections conferred by this Stipulation and Order do not cover the following
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`information: (a) any information that is in the public domain at the time of disclosure to a
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`Receiving Party or becomes part of the public domain after its disclosure to a Receiving Party as
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`a result of publication not involving a violation of this Order, including becoming part of the public
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`record through trial or otherwise; and (b) any information known to the Receiving Party prior to
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`the disclosure or obtained by the Receiving Party after the disclosure from a source who obtained
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`the information lawfully and under no obligation of confidentiality to the Designating Party.
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`3. DURATION
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`Even after final disposition of this litigation, the confidentiality obligations imposed by this
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`Order shall remain in effect until a Designating Party agrees otherwise in writing or a Court order
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`otherwise directs. Final disposition shall be deemed to be the later of (1) dismissal of all claims
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`and defenses in this action, with or without prejudice; and (2) final judgment herein after the
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`completion and exhaustion of all appeals, rehearings, remands, trials, or reviews of this action,
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`including the time limits for filing any motions or applications for extension of time pursuant to
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`applicable law.
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`4. DESIGNATING PROTECTED MATERIAL
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`4.1
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`Exercise of Restraint and Care in Designating Material for Protection. Each Party
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`or Non-Party that designates information or items for protection under this Order must take care
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`to limit any such designation to specific material that qualifies under the appropriate standards. To
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`the extent it is practical to do so, the Designating Party must designate for protection only those
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`parts of material, documents, items, or oral or written communications that qualify so that other
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`portions of the material, documents, items, or communications for which protection is not
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`warranted are not swept unjustifiably within the ambit of this Order.
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`Mass, indiscriminate, or routinized designations are prohibited. Designations that are
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`shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
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`unnecessarily encumber or retard the case development process or to impose unnecessary expenses
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`and burdens on other parties) expose the Designating Party to sanctions.
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`If it comes to a Designating Party’s attention that information or items that it designated
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`for protection do not qualify for protection at all or do not qualify for the level of protection initially
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`asserted, that Designating Party must promptly notify all other parties that it is withdrawing the
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`mistaken designation.
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`4.2 Manner and Timing of Designations. Except as otherwise provided in this Order
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`(see, e.g., second paragraph of section 4.2(a) below), or as otherwise stipulated or ordered,
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`Disclosure or Discovery Material that qualifies for protection under this Order must be clearly so
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`designated before the material is disclosed or produced.
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`Designation in conformity with this Order requires:
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`(a) for information in documentary form (e.g., paper or electronic documents, but
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`excluding transcripts of depositions or other pretrial or trial proceedings), that the Producing Party
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`affix the legend “CONFIDENTIAL,” or “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” to each page that contains Protected
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`Material. If only a portion or portions of the material on a page qualifies for protection, the
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`Producing Party also must clearly identify the protected portion(s) (e.g., by making appropriate
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`markings in the margins) and must specify, for each portion, the level of protection being asserted.
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`A Party or Non-Party that makes original documents or materials available for
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`inspection need not designate them for protection until after the inspecting Party has indicated
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`which material it would like copied and produced. During the inspection and before the
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`designation, all of the material made available for inspection shall be deemed “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting Party has identified the
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`documents it wants copied and produced, the Producing Party must determine which documents,
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`or portions thereof, qualify for protection under this Order. Then, before producing the specified
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`documents, the Producing Party must affix the appropriate legend (“CONFIDENTIAL,”
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL
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`– SOURCE CODE”) to each page that contains Protected Material. If only a portion or portions
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`of the material on a page qualifies for protection, the Producing Party also must clearly identify
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`the protected portion(s) (e.g., by making appropriate markings in the margins) and must specify,
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`for each portion, the level of protection being asserted.
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`(b) for testimony given in deposition or in other pretrial or trial proceedings, the
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`Designating Party may identify on the record, before the close of the deposition, hearing, or other
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`proceeding, all protected testimony and specify the level of protection being asserted. When it is
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`impractical to identify separately each portion of testimony that is entitled to protection and it
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`appears that substantial portions of the testimony may qualify for protection, the Designating Party
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`may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
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`to have up to 30 days to identify the specific portions of the testimony as to which protection is
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`sought and to specify the level of protection being asserted. Only those portions of the testimony
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`that are appropriately designated for protection within the 30 days shall be covered by the
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`provisions of this Stipulated Confidentiality Order. Alternatively, a Designating Party may specify,
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`at the deposition or up to 30 days afterwards if that period is properly invoked, that the entire
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`transcript shall be
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`treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY.”
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`Parties shall give the other parties notice if they reasonably expect a deposition, hearing
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`or other proceeding to include Protected Material so that the other parties can ensure that only
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`authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
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`(Exhibit A, Exhibit B, or Exhibit C) are present at those proceedings. The use of a document as an
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`exhibit at a deposition shall not in any way affect its designation as “CONFIDENTIAL,”
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL
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`– SOURCE CODE.”
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`Transcripts containing Protected Material shall have an obvious legend on the title page
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`that the transcript contains Protected Material, and the title page shall be followed by a list of all
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`pages (including line numbers as appropriate) that have been designated as Protected Material and
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`the level of protection being asserted by the Designating Party. The Designating Party shall inform
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`the court reporter of these requirements. Any transcript that is prepared before the expiration of a
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`30-day period for designation shall be treated during that period as if it had been designated
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in its entirety unless otherwise
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`agreed. After the expiration of that period, the transcript shall be treated only as actually
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`designated.
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`Pages of transcribed deposition testimony or exhibits to depositions that reveal
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`Protected Material must be separately bound by the court reporter and may not be disclosed to
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`anyone except as permitted under this Stipulated Confidentiality Order.
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`(c) for information produced in some form other than documentary and for any other
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`tangible items, that the Producing Party affix in a prominent place on the exterior of the container
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`or containers in which the information or item is stored the legend “CONFIDENTIAL,” “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” “HIGHLY CONFIDENTIAL – SOURCE
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`CODE.” If only a portion or portions of the information or item warrant protection, the Producing
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`Party, to the extent practicable, shall identify the protected portion(s) and specify the level of
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`protection being asserted.
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`4.3
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`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
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`designate qualified information or items does not, standing alone, waive the Designating Party’s
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`right to secure protection under this Order for such material. Upon timely correction of a
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`designation, the Receiving Party must make reasonable efforts to assure that the material is treated
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`in accordance with the provisions of this Order.
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`5. CHALLENGING CONFIDENTIALITY DESIGNATIONS
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`5.1
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`Timing of Challenges. Any Party or Non-Party may challenge a designation of
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`confidentiality at any time. Unless a prompt challenge to a Designating Party’s confidentiality
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`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
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`burdens, or a significant disruption or delay of the litigation, a Party does not waive its right to
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`challenge a confidentiality designation by electing not to mount a challenge promptly after the
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`original designation is disclosed.
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`5.2 Meet and Confer. The Challenging Party shall initiate the dispute resolution process
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`by providing written notice of each designation it is challenging and describing the basis for each
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`challenge. To avoid ambiguity as to whether a challenge has been made, the written notice must
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`recite that the challenge to confidentiality is being made in accordance with this specific
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`paragraph of the Confidentiality Order. The parties shall attempt to resolve each challenge in good
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`faith and must begin the process by conferring directly within 14 days of the date of service of
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`notice. A refusal by either party to meet and confer via telephone or similar method shall be
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`considered a failure to meet and confer in good faith. In conferring, the Challenging Party must
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`explain the basis for its belief that the confidentiality designation was not proper and must give
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`the Designating Party an opportunity to review the designated material, to reconsider the
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`circumstances, and, if no change in designation is offered, to explain the basis for the chosen
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`designation. A Challenging Party may proceed to the next stage of the challenge process only if
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`it has engaged in this meet and confer process first or establishes that the Designating Party is
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`unwilling to participate in the meet and confer process in a timely manner.
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`5.3
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`Judicial Intervention. If the Parties cannot resolve a challenge without Court
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`intervention, the Challenging Party may present the dispute to the Court initially by letter, in
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`accordance with Local Civil Rule 37.1(a)(1), before filing a formal motion, within 21 days of the
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`initial notice of challenge or within 14 days of the parties agreeing that the meet and confer
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`process will not resolve their dispute, whichever is later. Failure by the Challenging Party to make
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`such an application within 21 days (or 14 days, if applicable) does not waive the challenge.
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`The burden of persuasion in any such challenge proceeding shall be on the Designating
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`Party. Frivolous challenges and those made for an improper purpose (e.g., to harass or impose
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`unnecessary expenses and burdens on other parties) may expose the Challenging Party to
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`sanctions. All parties shall continue to afford the material in question the level of protection to
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`which it is entitled under the Producing Party’s designation until the Court rules on the challenge.
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`6. ACCESS TO AND USE OF PROTECTED MATERIAL
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`6.1
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`Basic Principles. A Receiving Party may use Protected Material that is disclosed or
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`produced by another Party or by a Non-Party in connection with this case only for prosecuting,
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`defending, or attempting to settle this litigation, and not for any other purpose whatsoever, without
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`the express written consent of the Producing Party, including without limitation any other litigation
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`or any business or competitive purpose or function. Such Protected Material may be disclosed only
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`to the categories of persons and under the conditions described in this Order. When the litigation
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`has been terminated, a Receiving Party must comply with the provisions of section 13 below
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`(FINAL DISPOSITION).
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`Protected Material must be stored and maintained by a Receiving Party at a location and in
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`a secure manner that ensures that access is limited to the persons authorized under this Order.
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`6.2
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`Disclosure of “CONFIDENTIAL” Information or Items. Unless otherwise ordered
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`by the Court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information or item designated “CONFIDENTIAL” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`(b) The officers, directors, and up to a maximum of three (3) employees who are not
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`an officer or director of the Receiving Party (1) to whom disclosure is reasonably necessary for
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`the conduct of this litigation, and (2) who have signed the “Acknowledgment and Agreement to
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`Be Bound” (Exhibit C);
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`(c) In-House Counsel of the Receiving Party to whom disclosure is reasonably
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`necessary for the conduct of this litigation, and (2) who have signed the “Acknowledgment and
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`Agreement to Be Bound” (Exhibit C);
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`(d) Experts of the Receiving Party (1) that qualify under the definition of paragraph
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`1.8; (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A); (3)
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`who are not involved in Competitive Decision-making, and (4) as to whom the procedures set forth
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`in paragraph 6.5, below, have been followed and no unresolved objections exist after proper notice
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`has been given to all Parties as set forth in paragraph 6.5;
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`(e) the Court and its personnel;
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`(f) court reporters and their staff;
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`(g) professional jury or trial consultants, mock jurors or focus group members, and
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`Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
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`signed the “Acknowledgment and Agreement to Be Bound” (Exhibit C); and
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`(h) the author, recipient, or custodian of the information or item; or during a deposition,
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`any deponent, so long as the deposing party has a good-faith basis to believe that the witness
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`authored the information or item, or received a copy of it, or was involved in the subject matter
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`described therein, if the deponent signs the “Acknowledgement and Agreement to Be Bound”
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`(Exhibit A, B, or C), as well as any deponent who is employed by the party who produced the
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`information or item, or any deponent where the producing party consents to such disclosure.
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`6.3
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`Disclosure of “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`Information or Items. Unless otherwise ordered by the Court or permitted in writing by the
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`Designating Party, a Receiving Party may disclose any information or item designated “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`(b) Up to three (3) Designated In-House Counsel of the Receiving Party (1) to whom
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`disclosure is reasonably necessary for this litigation, (2) who has signed the “Acknowledgement
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`and Agreement to Be Bound” (Exhibit A), and (3) as to whom the procedures set forth in paragraph
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`6.5, below, have been followed and no unresolved objections exist after proper notice has been
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`given to all Parties as set forth in paragraph 6.5;
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`(c) Experts of the Receiving Party (1) that qualify under the definition of paragraph
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`1.8; (2) who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A), (3)
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`who are not involved in Competitive Decision-making, and (4) as to whom the procedures set forth
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`in paragraph 6.5, below, have been followed and no unresolved objections exist after proper notice
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`has been given to all Parties as set forth in paragraph 6.5;
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`(d) the Court and its personnel;
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`(e) court reporters and their staff;
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`(f) professional jury or trial consultants, mock jurors or focus group members, and
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`Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
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`signed the “Acknowledgment and Agreement to Be Bound” (Exhibit C); and
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`(g) any person who (a) appears on the face of the information or item designated
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY ” as an author, addressee, or
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`recipient thereof; (b) metadata shows is a custodian of the information or item designated
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”, or (c) is a witness during a
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`deposition, court hearing, or trial where specific documentary or testimonial evidence establishes
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`that such person authored, received, possessed, or otherwise knew the information or item marked
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” prior to its production or
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`disclosure in this litigation.
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`6.4
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`Disclosure of “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or
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`Items. Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a
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`Receiving Party may disclose any information or item designated “HIGHLY CONFIDENTIAL –
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`SOURCE CODE” only to:
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`(a) the Receiving Party’s Outside Counsel of Record in this action, as well as
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`employees of said Outside Counsel of Record to whom it is reasonably necessary to disclose the
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`information for this litigation;
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`(b) Experts of the Receiving Party (1) that qualify under the definition of paragraph
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`1.8; (2) who are not involved in Competitive Decision-making, (3) who have signed the
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`“Acknowledgment and Agreement to Be Bound” (Exhibit A), and (4) as to whom the procedures
`
`set forth in paragraph 6.5, below, have been followed and no unresolved objections exist after
`
`proper notice has been given to all Parties as set forth in paragraph 6.5;
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`(c) the Court and its personnel;
`
`(d) court reporters and their staff;
`
`(e) professional jury or trial consultants, mock jurors or focus group members, and
`
`Professional Vendors to whom disclosure is reasonably necessary for this litigation and who have
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`signed the “Acknowledgment and Agreement to Be Bound” (Exhibit C).
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`6.5
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`Procedures
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`for Approving or Objecting
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`to Disclosure of “HIGHLY
`
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE
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`CODE” Information or Items.
`
`(a) Counsel disclosing materials designated as “CONFIDENTIAL” to persons required
`
`to execute an “Acknowledgements and Agreement to Be Bound” shall retain all such executed
`
`agreements. Copies of the executed agreements shall be preserved by counsel and shall be provided
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`to the Designating Party if the court so orders upon a showing of good cause.
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`(b) Unless otherwise ordered by the Court or agreed to in writing by the Designating
`
`Party, a Party that seeks to disclose to its Designated In-House Counsel, any information or item
`
`that has been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or
`
`“HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraphs 6.3 and 6.4 first must
`
`provide written notice to the Designating Party that sets forth the full name of the Designated In-
`
`House Counsel and a description of the Designated In-House Counsel’s responsibilities, including
`
`sufficient information for the Designating Party to determine whether the Designated In-House
`
`Counsel is involved in Competitive Decision-making, including but not limited to whether In-
`
`House Counsel is involved in: advice and participation in pricing and product design decisions;
`
`advice and participation in purchasing, sales, selection of vendors, marketing decisions; advice
`
`and participation in research and development and other strategic initiatives; advice and
`
`participation in overall corporate strategy; involvement in proceedings before the USPTO, such as
`
`drafting, amending, or otherwise providing advice or strategy with respect to the drafting of or
`
`scope of claims; and responsibility for identifying opportunities for patent enforcement, licensing,
`
`and acquisitions, including, identifying or evaluating target companies for licensing and/or
`
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`enforcement programs.
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`(c) Unless otherwise ordered by the Court or agreed to in writing by the Designating
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`Party, a Party that seeks to disclose to an Expert (as defined in this Order) any information or item
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`that has been designated “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraphs 6.3
`
`and 6.4 first must provide written notice to the Designating Party that (1) sets forth the full name
`
`of the Expert and the address of his or her primary residence, (2) attaches a copy of the Expert’s
`
`current resume, (3) identifies the Expert’s current employer(s), (4) identifies each person or entity
`
`from whom the Expert has received co