Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 1 of 33
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`
`FRONTLINE PLACEMENT
`TECHNOLOGIES INC.,
`
`Plaintiff,
`
`v.
`
`CRS, INC.,
`
`Defendant.
`
`CIVIL ACTION
`NO.
`
`fI * I 0-"· J4S1
`
`FiLED
`j;:.A'; 1J LOlO
`:'CHAEL C. I\UI~L, Clerk
`- ___DLp. Clerk
`
`PROTECTIVE ORDER
`
`AND NOW, this 12th day of August, 2010, upon
`
`consideration of the parties' joint motion to enter a protective
`
`order regarding production of electronically stored information
`
`(doc. no. 35), it is hereby ORDERED that the parties' motion is
`
`GRANTED as to the following:
`
`This Protective Order is issued to expedite the flow of
`
`discovery materials, to facilitate the prompt resolution of
`
`disputes over confidentiality of discovery materials, to
`
`adequately protect information the parties are entitled to keep
`
`confidential, to ensure that only materials the parties are
`
`entitled to keep confidential are subject to such treatment, and
`
`to ensure that the parties are permitted reasonably necessary
`
`uses of such materials in preparation for and in the conduct of
`
`trial, pursuant to the Federal Rules of Civil Procedure and the
`
`Local Rules of this Court. Unless modified pursuant to the terms
`
`contained in this Order, this Order and the Court's jurisdiction
`
`CRS EXHIBIT 1018
`CRS v. Frontline, CBM2012-00005
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF PENNSYLVANIA
`
`
`FRONTLINE PLACEMENT
`TECHNOLOGIES INC.,
`
`Plaintiff,
`
`v.
`
`CRS, INC.,
`
`Defendant.
`
`CIVIL ACTION
`NO.
`
`fI * I 0-"· J4S1
`
`FiLED
`j;:.A'; 1J LOlO
`:'CHAEL C. I\UI~L, Clerk
`- ___DLp. Clerk
`
`PROTECTIVE ORDER
`
`AND NOW, this 12th day of August, 2010, upon
`
`consideration of the parties' joint motion to enter a protective
`
`order regarding production of electronically stored information
`
`(doc. no. 35), it is hereby ORDERED that the parties' motion is
`
`GRANTED as to the following:
`
`This Protective Order is issued to expedite the flow of
`
`discovery materials, to facilitate the prompt resolution of
`
`disputes over confidentiality of discovery materials, to
`
`adequately protect information the parties are entitled to keep
`
`confidential, to ensure that only materials the parties are
`
`entitled to keep confidential are subject to such treatment, and
`
`to ensure that the parties are permitted reasonably necessary
`
`uses of such materials in preparation for and in the conduct of
`
`trial, pursuant to the Federal Rules of Civil Procedure and the
`
`Local Rules of this Court. Unless modified pursuant to the terms
`
`contained in this Order, this Order and the Court's jurisdiction
`
`CRS EXHIBIT 1018
`CRS v. Frontline, CBM2012-00005
`
`
`
`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 2 of 33
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`over this Order shall survive the termination of this case.
`
`In support of this Order, the Court finds that:
`
`1.
`
`Documents, things, or information containing
`
`confidential, proprietary business information, trade secrets, or
`
`other confidential research, development, or commercial
`
`information within the meaning of Rule 26(c) (1) (G) of the Federal
`
`Rules of civil Procedure ("Fed. R. Civ. P.") in which the parties
`
`have a privacy interest that outweighs the public's interest in
`
`obtaining access ("CONFIDENTIAL INFORMATION") are likely to be
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`disclosed or produced during the course of discovery in this
`
`litigation;
`
`2.
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`Public dissemination and disclosure of such
`
`CONFIDENTIAL INFORMATION could severely injure or damage the
`
`party disclosing or producing the CONFIDENTIAL INFORMATION and
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`could place that party at a competitive disadvantage; and
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`3.
`
`To protect the respective interests of the parties and
`
`to facilitate the progress of disclosure and discovery in this
`
`case, it is hereby ORDERED that this Protective Order
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`APPROVED. 1
`
`No later than thirty days after production of
`1
`information subject to the protective order, and thirty days
`after each production thereafter, each party shall submit under
`seal a schedule of information being produced, which describes
`with sufficient particularity the need for confidentiality that
`is being asserted (e.g., source codes, trade secrets, technical
`information regarding new products). This procedure will permit
`the Court to apply the teachings of Glenmede Trust Co. v.
`Thompson, 56 F.3d 476 (3d Cir. 1995) and Pansy v. Borough of
`Stroudsburg, 23 F.3d 772 (3d Cir. 1994).
`
`2
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 3 of 33
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`A.
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`DISCOVERY RtJLES ~IN UNCHANGED
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`4. Nothing herein shall alter or change in any way the
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`disclosure/discovery provisions of the Federal Rules of Civil
`
`Procedure, the Court's Local Rules, or any applicable Individual
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`Practices of any judge or magistrate judge presiding in any way
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`over this matter.
`
`B.
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`INFORMATION SUBJECT TO THIS ORDER
`
`ConfidentiCil Information
`
`5.
`
`For purposes of this Order, CONFIDENTIAL INFORMATION
`
`shall mean all information or material disclosed to a receiving
`
`party that the disclosing party considers, and that a reasonable
`
`person or entity in the disclosing party's position would
`
`consider, to constitute or to contain trade secrets or other
`
`confidential research, development, or commercial information,
`
`whether embodied in physical objects, electronically stored
`
`information, documents, or the factual knowledge of persons, and
`
`that has been so designated by the disclosing party.
`
`CONFIDENTIAL INFORMATION may comprise information or material
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`that a disclosing party is under obligation with a third party to
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`maintain as confidential. A "disclosing party" includes any
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`party to this action and any non-party producing information or
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`material voluntarily or pursuant to a subpoena or a court order.
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`-3
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 4 of 33
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`Any CONFIDENTIAL INFORMATION obtained by any receiving party
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`pursuant to discovery in this litigation may be used only for
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`purposes of this litigation, including any appeals and/or
`
`retrials.
`
`6.
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`The following information is not CONFIDENTIAL
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`INFORMATION:
`
`(a)
`
`any information that at the time of disclosure to
`
`a receiving party is readily ascertainable in the
`
`public domain by proper means;
`
`(b)
`
`any information that, after disclosure to a
`
`receiving party, becomes part of the public domain
`
`as a result of publication not involving a
`
`violation of this Order or other violation of law;
`
`(c)
`
`any information that a receiving party can show
`
`was received by it, whether before or after the
`
`disclosure, from a source who obtained the
`
`information without use of improper means and is
`
`under no obligation of confidentiality to the
`
`disclosing party; and
`
`(d)
`
`any information which a receiving party can show
`
`was independently developed by it after the time
`
`of disclosure by personnel who have not had access
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`to the disclosing party's confidential
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`information.
`
`-4
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 5 of 33
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`C.
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`PROCEDURE. FOR DESIGNATION
`
`
`7.
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`Any document or tangible thing containing or including
`
`any CONFIDENTIAL INFORMATION may be designated as such by the
`
`disclosing party by marking it CONFIDENTIAL (or CONFIDENTIAL
`
`INFORMATION) .
`
`8. All documents (including physical objects) that are
`
`disclosed shall be designated as CONFIDENTIAL INFORMATION before
`
`or at the time of disclosure, except in the case of depositions,
`
`which shall be designated as set forth in Paragraph 14. The
`
`disclosing party shall designate documents by marking the
`
`document or, in the case of documents produced electronically the
`
`storage media (e.g., the CD, DVD, hard drive, etc.), with the
`
`appropriate designation in a manner that does not interfere with
`
`the legibility of the document, and the receiving party shall
`
`ensure that all copies and/or printouts of such documents bear
`
`the appropriate confidentiality designation.
`
`In the event that
`
`the disclosure is so voluminous that pre-designating the
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`documents or transporting them to the receiving party is unduly
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`burdensome (considering the least burdensome available means for
`
`designating and producing those documents, such as in native
`
`electronic form), and the parties are unable to agree upon a way
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`to reasonably limit the scope of production of those materials,
`
`then the disclosing party shall make the documents available to
`
`the receiving party for inspection. After the receiving party
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`-5
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 6 of 33
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`inspects the documents and selects documents or material for
`
`copying, the disclosing party shall make the appropriate copies
`
`(subject to any agreements or orders on copy costs), with
`
`appropriate designations, if any, before providing copies to the
`
`receiving party. Until the disclosing party provides copies of
`
`the documents or materials selected for copying, all documents
`
`made available for inspection must be treated as if they
`
`contained CONFIDENTIAL INFORMATION.
`
`9. All CONFIDENTIAL INFORMATION not reduced to
`
`documentary, tangible, or physical form or that cannot be
`
`conveniently designated as set forth in Paragraph 8 shall be
`
`designated by the disclosing party by informing the receiving
`
`party of the designation in writing.
`
`10. The parties will use reasonable care when designating
`
`documents or information as CONFIDENTIAL INFORMATION. Nothing in
`
`this Order shall prevent a receiving party from contending that
`
`any document or information designated as CONFIDENTIAL
`
`INFORMATION has been improperly designated. A receiving party
`
`may at any time request that the disclosing party cancel or
`
`modify the confidentiality designation with respect to any
`
`document or information contained therein.
`
`11. A party shall not be obligated to challenge the
`
`propriety of a CONFIDENTIAL INFORMATION designation at the time
`
`made, and a failure to do so shall not preclude a subsequent
`
`-6
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 7 of 33
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`challenge thereto. Such a challenge shall be written, shall be
`
`served on counsel for the disclosing party, and shall
`
`particularly identify the documents or information that the
`
`receiving party contends should be differently designated. The
`
`parties shall attempt to resolve promptly and informally such
`
`disputes.
`
`If agreement cannot be reached, the receiving party
`
`may request that the Court cancel or modify a CONFIDENTIAL
`
`INFORMATION designation.
`
`12.
`
`Inadvertent failure to identify documents or things as
`
`CONFIDENTIAL INFORMATION pursuant to this Order shall not
`
`constitute a waiver of any otherwise valid claim for protection,
`
`so long as such claim is asserted within ten (10) days of the
`
`discovery of the inadvertent failure. At such time, arrangements
`
`shall be made for the disclosing party to appropriately mark the
`
`information in accordance with this Order. The receiving party
`
`shall have no liability, under this Order or otherwise, for any
`
`disclosure of information contained in documents or things not
`
`bearing a confidentiality legend occurring before the receiving
`
`party was placed on notice of the disclosing party's claims of
`
`confidentiality.
`
`13. The production by a non-party of documents,
`
`information, and/or things that were obtained by the non-party
`
`from a party to this action under agreement of confidentiality
`
`but not designated as CONFIDENTIAL INFORMATION when produced in
`
`-7
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 8 of 33
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`this action, shall be considered an inadvertent failure to
`
`identify documents or things as CONFIDENTrAL INFORMATION and
`
`shall not constitute a waiver of any otherwise valid claim for
`
`protection, so long as the party to this action that provided the
`
`documents, information, and/or things to the non-party asserts a
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`claim of CONFIDENTIAL INFORMATION within fifteen (15) days of the
`
`receipt from the non-party. At such time, the party making the
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`claim of CONFIDENTIAL INFORMATION shall make arrangements with
`
`the non-party that produced the documents, information, or things
`
`to appropriately mark the information in accordance with this
`
`Order.
`
`In order to provide the parties to this action an
`
`opportunity to review materials produced by non-parties and to
`
`make an assertion of CONFIDENTrAL INFORMATION, any documents,
`
`information, and/or things that are produced by a non-party shall
`
`be treated as CONFIDENTIAL INFORMATION regardless of whether or
`
`not explicitly designated as such by the non-party for a period
`
`of fifteen (15) days from the date of receipt by the party.
`
`14. During any deposition in which CONFIDENTIAL INFORMATION
`
`is discussed, counsel attending the deposition may designate, on
`
`the record, portions of the transcript that contain restricted
`
`information. The portions of any deposition transcript that
`
`counsel for any party has designated on the record at the
`
`deposition as CONFIDENTIAL INFORMATION, and any such information
`
`marked as a deposition exhibit shall be treated as such. For
`
`-8
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 9 of 33
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`deposition testimony not designated on the record during the
`
`deposition, portions of the transcript may be designated if,
`
`within thirty (30) days of the delivery of a deposition
`
`transcript to the Parties' counsel of record, counsel designates
`
`in writing, by page and line number, any portion of the
`
`transcript as CONFIDENTIAL INFORMATION.
`
`In the time after the
`
`deposition but before the expiration of this thirty (30) day
`
`period, the entirety of all deposition transcripts must be
`
`treated as if they contained CONFIDENTIAL INFORMATION.
`
`D.
`
`PERSONS AUTHORIZ~ TO RECEIVE CONFIDENTIAL INFORMATION
`
`The Court
`
`15. Nothing in this Order shall limit the use or disclosure
`
`of information in case-related motions, proceedings, or other
`
`communications with the Court and its staff. However, all
`
`transcripts of depositions, exhibits, answers to interrogatories,
`
`pleadings, briefs, and other documents submitted to the Court
`
`that have been designated as CONFIDENTIAL INFORMATION or that
`
`contain information so designated, shall be filed (or otherwise
`
`submitted) under seal.
`
`Counsel
`
`16. Outside counsel of record for a receiving party shall
`
`have access to the disclosing party's CONFIDENTIAL INFORMATION.
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`The term "outside counsel of record" shall include the parties'
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 10 of 33
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`outside counsel who are working on this litigation and the
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`supporting personnel employed by those attorneys, including
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`paralegals, legal translators, legal secretaries, legal clerks,
`
`and shorthand reporters.
`
`Technica~ Advisers
`
`17. The term "technical adviser" shall mean any outside
`
`person (who is not a party or employee of a party) and their
`
`engineering, technical, accounting, or financial support
`
`personnel, including, but not limited to, a proposed expert
`
`witness or consultant, whom counsel has retained to consult
`
`concerning technical, financial, or other aspects of this case
`
`for the preparation or trial thereof.
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`18. Outside counsel of record for the receiving party may
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`disclose CONFIDENTIAL INFO~TION of a disclosing party, and such
`
`copies as are reasonably necessary for maintaining, defending, or
`
`evaluating this litigation, to technical advisers subject to the
`
`requirements of Paragraph 19.
`
`19. Should a receiving party find it necessary for
`
`maintaining, defending, or evaluating this litigation to disclose
`
`a disclosing party's CONFIDENTIAL INFO~TION to a technical
`
`adviser, such information may be disclosed subject to the
`
`following provisions:
`
`(a) Prior to disclosure, the technical adviser must
`
`sign the Confidentiality Agreement appended hereto
`
`-10
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 11 of 33
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`as Exhibit A stating that he or she has read and
`
`understands this Order and agrees to be bound by
`
`its terms. Such written agreement shall be
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`retained by counsel for the party that has
`
`retained the technical adviser;
`
`(b) The party retaining the technical adviser shall
`
`give written notice to the disclosing party ten
`
`(10) days prior to disclosure of any confidential
`
`information to the technical adviser. The written
`
`notice shall provide the curriculum vitae of the
`
`technical adviser and shall include the technical
`
`adviser's business address, business title,
`
`business or profession, any previous or current
`
`relationship (personal or professional) with any
`
`of the parties, and a listing of other cases in
`
`which the individual has testified (at trial or
`
`deposition) within the last four years, and all
`
`companies with which the individual has consulted
`
`or by which the individual has been employed
`
`within the last four years. No CONFIDENTIAL
`
`INFORMATION shall be disclosed to such technical
`
`adviser until after the expiration of the ten (10)
`
`day notice period;
`
`(c) The disclosing party shall have five (5) days
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`-11
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 12 of 33
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`after such notice is given
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`to object in writing.
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`Upon service of an objection by the disclosing
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`party, there shall be no disclosure of
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`CONFIDENTIAL INFO~TION to the individual pending
`
`resolution of the objection. The disclosing party
`
`shall provide an explanation of the basis of its
`
`objection, and consent to the disclosure of
`
`confidential information to the technical adviser
`
`shall not be unreasonably withheld;
`
`(d)
`
`If a disclosing party objects to the disclosure of
`
`CONFIDENTIAL INFO~TION to a technical adviser,
`
`the receiving party shall then have five (5) days
`
`after such objection is served to respond to the
`
`objection; and
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`(e) The disclosing party shall have five (5) days
`
`after such response is served to file an objection
`
`with the court and seek disqualification of the
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`technical adviser or other appropriate relief,
`
`the parties cannot come to an agreement.
`
`If the
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`producing party fails to file an objection within
`
`the prescribed period, then any objection to the
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`technical adviser is waived, and any CONFIDENTIAL
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`INFO~TION may be thereafter disclosed to the
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`technical adviser.
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`-12
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`Data Prooessing: Vendors and GraphiosLTri~l Consultants
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`20. The term "data processing vendor" means any person (and
`
`supporting personnel) who is a member or staff of an outside data
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`entry, data processing, or copying service employed or retained
`
`by a receiving party or its counsel in connection with this
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`litigation.
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`21. Subject to the requirements set forth in this Order,
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`counsel for a receiving party may furnish and disclose
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`CONFIDENTIAL INFORMATION of a disclosing party to data processing
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`vendors, graphics services, or design services retained by
`
`counsel for purpose of providing services to counsel related to
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`discovery or preparation for trial in this litigation.
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`22. Subject to the requirements set forth in this Order,
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`counsel for a receiving party may furnish and disclose
`
`CONFIDENTIAL INFORMATION of a disclosing party to non-technical
`
`jury or trial consulting services, including mock jurors or focus
`
`group participants, provided that no such person is an employee,
`
`former employee, immediate relation of any employee or former
`
`employee, contractor, consultant, officer, or director of any
`
`party or third party competitor that provides substitute
`
`fulfillment services.
`
`23. Should counsel for a receiving party find it necessary
`
`for maintaining, defending, or evaluating this litigation to
`
`disclose a disclosing party's CONFIDENTIAL INFORMATION to any of
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`-13
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 14 of 33
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`the persons or services described in Paragraphs 21 or 22, counsel
`
`for the receiving party shall first obtain a written
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`Confidentiality Agreement, in the form attached hereto as Exhibit
`
`A. Such written agreement shall be retained by counsel for the
`
`receiving party, but need not be disclosed to the disclosing
`
`party.
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`Emp1oYEHll3 of Parties
`
`24. Employees of the parties shall not be authorized to
`
`receive any information designated as CONFIDENTIAL INFORMATION.
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`Employees of the parties may be given access to information
`
`designated as CONFIDENTIAL INFORMATION in connection with
`
`settlement discussions, but only to the extent explicit written
`
`permission identifying specific documents and things is provided
`
`by the producing party.
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`Other Persons
`
`25. Any person or entity shall not be authorized to receive
`
`any information designated as CONFIDENTIAL INFORMATION unless
`
`explicitly allowed by this order.
`
`E.
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`REVIEW OF SOURCE CODE
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`26. This Order anticipates that software source code may be
`
`requested during the course of discovery and sets out a procedure
`
`in paragraphs 27 through 29 below for production of software
`
`source code. The establishment of this procedure shall not be
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`-14
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 15 of 33
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`construed as an acknowledgment of the relevancy of any source
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`code and does not impose any obligation on any party to produce
`
`any source code. Each party retains the ability and right to
`
`raise any legitimate objections to a request for the production
`
`of source code.
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`27. Source code of any party that is designated
`
`CONFIDENTIAL INFORMATION may be produced for inspection at the
`
`option of the producing party, in which case the following
`
`provisions apply:
`
`(a)
`
`Access to machine-readable version of source code
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`may be permitted only to those persons authorized
`
`to receive CONFIDENTIAL INFORMATION and subject to
`
`the Prosecution Bar in Paragraph 30, and only on
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`"stand-alone" computers (that is, computers not
`
`connected to a network, internet or peripheral
`
`device, except that the stand-alone computers may
`
`be connected to a printer or printers) at secure
`
`locations at the offices of the producing party's
`
`counsel, to be made available during regular
`
`business hours (8:00 a.m. to 6:00 p.m. local time)
`
`on 72 hours notice. Frontline anticipates that,
`
`to the extent it provides access to a machine
`
`readable version of source code, it will do so at
`
`the offices of its counsel in Philadelphia.
`
`eRS
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`-15
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 16 of 33
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`anticipates that, to the extent it provides access
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`to a machine readable version of source code, it
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`will do so at the offices of its counsel in
`
`Washington, D.C. Beginning one week prior to the
`
`beginning of trial and continuing through the end
`
`of trial, access to the machine-readable version
`
`of the code must be provided under the same
`
`conditions and with the same limitations and
`
`restrictions as provided in this Paragraph in
`
`Philadelphia, Pennsylvania.
`
`(b)
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`No electronic devices, including but not limited
`
`to laptops, floppy drives, zip drives, or other
`
`hardware of the receiving party shall be permitted
`
`in the secure location where the stand alone
`
`computer with source code thereon is provided for
`
`inspection. Nor shall any cellular telephones,
`
`personal digital assistants (PDAS), Blackberries,
`
`cameras, voice recorders, Dictaphones, or other
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`devices be permitted inside the secure location.
`
`Nor shall any non-electronic devices capable of
`
`similar functionality be permitted in the secure
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`location.
`
`(cl
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`The producing party shall make the source code
`
`available at any deposition (of the producing
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 17 of 33
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`party, its employees, or experts), any hearing, or
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`trial, on five (5) days notice.
`
`(d)
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`At the time source code is made available for
`
`inspection, the producing party shall identify in
`
`writing to the receiving party: (i) the operating
`
`system's file directory structure and file names
`
`of all source code files on the computer; and (ii)
`
`all product(s) that include the executable version
`
`of the source code for each file and/or directory.
`
`(e)
`
`The parties must produce code in computer
`
`searchable format as it is kept in the ordinary
`
`course of business with all comments and other
`
`explanatory information intact. Furthermore, the
`
`stand-alone computer will have a copy of any
`
`software programs employed by the disclosing party
`
`to review and analyze the code. The requesting
`
`party may also install additional software tools,
`
`subject to approval of the disclosing party, on
`
`the computer for use in analyzing the source code.
`
`(f)
`
`The producing party must allow printing of paper
`
`copies of code at the time of inspection upon
`
`request by the requesting party, which copies the
`
`requesting party may take away upon completing an
`
`inspection. At the time of the inspection, the
`
`-17
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`
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 18 of 33
`
`requesting party may identify the portions of the
`
`source code that it wishes to receive copies of,
`
`and the producing party shall be responsible for
`
`making paper copies of the requested code. Paper
`
`copies of source code shall be made on watermarked
`
`paper, shall be bates numbered, and contain the
`
`notice "HIGHLY CONFIDENTIAL - SOURCE CODE". Where
`
`less than 300 pages of source code is requested to
`
`be printed, a printed copy shall be produced on
`
`the same day the request is made. Where more than
`
`300 pages of source code is requested to be
`
`printed, the printed copy shall be provided within
`
`48 hours of the request. The producing party
`
`shall maintain the original copy of any printed
`
`source code, and provide a copy of the original to
`
`outside counsel for the receiving party. The
`
`receiving party may request that the producing
`
`party make up to five copies of the printed source
`
`code at the receiving party's expense.
`
`(g)
`
`While there is no hard limit to the number of
`
`pages of source code that may be printed and
`
`produced, any printing and copying shall be
`
`limited to a reasonable amount, and shall not be
`
`done in such volume as to circumvent the purpose
`
`-18
`
`
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`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 19 of 33
`
`of protecting the source code to the fullest
`
`extent possible. If more than 10% or 1000 pages
`
`(whichever is greater) of the total source code
`
`for any software release or a continuous block of
`
`more than one hundred (100) pages is requested to
`
`be printed, then the producing party may request
`
`that the parties meet and confer before releasing
`
`the printed copy, but must do so promptly and
`
`shall not unreasonably withhold the printed copy.
`
`(h)
`
`The party receiving paper copies of source code
`
`must keep that code in a secured container or
`
`location at all times. Paper copies of code may
`
`not themselves be copied and may not be removed
`
`from a secured container unless in a secured,
`
`private area. Notwithstanding the foregoing
`
`sentence, attorneys may make copies of the paper
`
`copies of code for use as exhibits in court
`
`proceedings, expert reports, and at depositions.
`
`Furthermore, the parties will also exchange (by
`
`hand delivery) copies of the paper copies of code
`
`used as exhibits for court proceedings, expert
`
`reports, and at depositions, when so used. These
`
`additional copies will be treated the same as the
`
`original print outs. The code reviewers (defined
`
`-19
`
`
`
`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 20 of 33
`
`in Paragraph 28(k» may keep in their offices a
`
`paper copy of those portions of the code on which
`
`they are working.
`
`(i)
`
`The producing party may not videotape or otherwise
`
`monitor review of code by the requesting party.
`
`(j)
`
`The individuals that review source code on behalf
`
`of the requesting party may use their own
`
`searching tools for inspecting the code. They may
`
`create a back-up copy of the code on the stand
`
`alone computer. They may use their searching
`
`tools to annotate, number the lines of, and label
`
`the pages of, the back-up copy of the code. The
`
`back-up copy will remain on the stand-alone
`
`computer and be subject to all the provisions of
`
`this Protective Order governing code.
`
`(k)
`
`For purposes of this Paragraph, "requesting party"
`
`includes any expert or consultant (and members of
`
`his or her professional staff) retained by the
`
`requesting party to review the code consistent
`
`with the present Paragraph ("code reviewers").
`
`(1)
`
`Each party shall limit the number of persons that
`
`obtain access to an opposing party's source code
`
`to six (6) individuals. These individuals must be
`
`authorized to receive CONFIDENTIAL INFORMATION
`
`-20
`
`
`
`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 21 of 33
`
`under this Order and subject to the Prosecution
`
`bar in Paragraph 30. As per Paragraph 27(a), 72
`
`hours notice must be provided prior to inspection
`
`and shall identify the individuals who will make
`
`the inspection. Each individual shall provide
`
`valid identification prior to inspection.
`
`(m)
`
`Any consultant retained on behalf of a receiving
`
`party who is to be given access to source code
`
`material (whether in electronic form or otherwise)
`
`must first agree in writing not to perform
`
`software development work, directly or indirectly,
`
`intended for commercial purposes in the field of
`
`substitute fulfillment utilizing any part or
`
`portion of the disclosed software that was
`
`accessed by the consultant, which was not already
`
`known to the consultant or in the public domain.
`
`This shall not preclude such consultants from
`
`consulting in future litigation, so long as such
`
`consulting does not involve software development
`
`work as described in the preceding sentence that
`
`is directly or indirectly intended for commercial
`
`purposes.
`
`(n)
`
`The receiving party's outside counsel shall keep a
`
`log identifying, for each and every time any
`
`21
`
`
`
`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 22 of 33
`
`source code is viewed or accessed at the secure
`
`location: (i) the name of each person who viewed
`
`or accessed the source code; (ii) the date and
`
`time of such access; (iii) the length of time of
`
`access; (iv) whether any hard copies of any
`
`portion of the source code were printed at their
`
`request. Within thirty (30) days after the
`
`issuance of a final, non-appealable decision
`
`resolving all issues in this Action - or within
`
`thirty (30) days of entry of dismissal following a
`
`settlement between the receiving party and the
`
`producing party -
`
`the receiving party must serve
`
`upon the producing party the log and, at the
`
`receiving party's option, either return to the
`
`producing party or certify the destruction of
`
`paper copies of the producing party's source code
`
`as well as documents, pleadings, reports, and
`
`notes reflecting or referring to such source code.
`
`In addition, all persons to whom the paper copy of
`
`the source code were provided must certify in
`
`writing that the copy of the source code were
`
`returned to the counsel who provided them the
`
`information and that they will make no use of the
`
`source code or of any knowledge gained from the
`
`-22
`
`
`
`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 23 of 33
`
`source code in any future endeavor. This is above
`
`and beyond the general provisions dealing with
`
`confidential information at the termination of the
`
`lawsuit.
`
`{oj
`
`Access to and review of the source code shall be
`
`strictly for the purpose of investigating the
`
`claims and defenses at issue in this Action and
`
`prosecuting or defending this action. No person
`
`shall review or analyze any source code for
`
`purposes unrelated to this Action; nor may any
`
`person use any knowledge gained as a result of
`
`reviewing source code in this Action in any other
`
`pending or future dispute, proceeding, or
`
`litigation.
`
`28. Outside counsel of record for the receiving party may
`
`use electronic or marked paper copies of the disclosing party's
`
`source code in deposition examinations of the disclosing party,
`
`its employees, and its technical advisers and experts who have
`
`complied with Paragraph 19 of this Protective Order, but not
`
`other third parties. The disclosing party may use its own source
`
`code in deposition examinations of its opponents' witnesses,
`
`provided that it provides its opponent at least three (3) days'
`
`notice of what specific code it intends to employ.
`
`If made part
`
`of the deposition record, the source code and any testimony
`
`-23
`
`
`
`Case 2:07-cv-02457-ER Document 38 Filed 08/13/10 Page 24 of 33
`
`relating to it shall be designated CONFIDENTIAL INFORMATION
`
`pursuant to the provisions of Paragraph 14. The opposing party
`
`shall not be precluded from using the source code and any
`
`testimony relating to it in the deposition examinations.
`
`29. Either party may make the source code available at
`
`trial as an exhibit. Portions of the source code may be offered
`
`into evidence (with a motion to seal) and, wherever possible, the
`
`party offering source code into evidence shall limit the portions
`
`of the code that are filed to those lines of code that are
`
`directly relevant to and necessary for deciding the issue for
`
`which the code is being filed or offered. Upon proper motion,
`
`the Court will seal any such material once it is made a part of
`
`the record. Any portions of source code that are not offered
`
`into evidence at trial will be withdrawn before the close of
`
`evidence and disposed of as the Protective Order requires.
`
`F.
`
`PROSECUTION BAR
`
`30. Any document designated as CONFIDENTIAL INFORMATION is
`
`automatically designated a PROSECUTION BAR. Any person who
`
`receives any material or information designated as CONFIDENTIAL
`
`INFORMATION, and
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