Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 1 of 23 PageID #: 1654
`
`
`
`
`
`
`CASE NO. 6:11-cv-492
`
`JURY DEMANDED
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`NETWORK-1 SECURITY SOLUTIONS, INC., a
`Delaware corporation,
`
` Plaintiff,
`
`vs.
`
`Alcatel-Lucent USA Inc., a Delaware corporation;
`Alcatel-Lucent Holdings Inc., a Delaware
`corporation; Allied Telesis, Inc., a Delaware
`corporation; Avaya Inc., a Delaware corporation;
`Axis Communications AB, a Swedish corporation;
`Axis Communications, Inc., a Massachusetts
`corporation; Dell Inc., a Delaware corporation;
`GarrettCom, Inc., a California corporation; Hewlett-
`Packard Company, a Delaware corporation; Huawei
`Technologies Co., Ltd., a People’s Republic of China
`corporation; Huawei Technologies USA Inc., a
`Texas corporation; Juniper Networks, Inc., a
`Delaware corporation; NEC Corporation, a Japanese
`corporation; NEC Corporation of America, a
`Delaware corporation; Polycom, Inc., a Delaware
`corporation; Samsung Electronics Co., Ltd., a South
`Korean corporation, Samsung Electronics America,
`Inc., a New York corporation; Samsung
`Telecommunications America, LLC, a Delaware
`limited liability company; ShoreTel, Inc., a Delaware
`corporation; Sony Corporation, a Japanese
`corporation, Sony Corporation of America, a New
`York corporation; Sony Electronics Inc., a Delaware
`corporation;
`
` Defendants.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`DM_US:21283562_7
`
`AVAYA INC. AV-1017
`Avaya Inc. v. Network­1 Security Solutions, Inc.
`IPR2013­00071
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 2 of 23 PageID #: 1655
`
`
`
`STIPULATED PROTECTIVE ORDER
`
`
`
`This protective order (“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 Fed. R. Civ. P. 26(c) and any other applicable rule of
`
`this Court. Unless modified, superseded, or terminated pursuant to the terms contained in this
`
`Order, this Protective Order shall remain in effect through the conclusion of this litigation and
`
`thereafter as set forth below.
`
`In support of this Protective Order, the Court finds that:
`1.
`
`Documents or information containing confidential research, development,
`
`business and/or commercial information, and/or trade secrets within the meaning of Rule 26(c)
`
`(“Confidential Information”) is likely to be disclosed or produced during the course of discovery
`
`in this litigation;
`2.
`
`The parties to this litigation (and third parties) may assert that public
`
`dissemination and disclosure of Confidential Information could severely injure or damage the
`
`party or third party disclosing or producing the Confidential Information and/or could place that
`
`party or third party at a competitive disadvantage;
`3.
`
`Counsel for the party or parties receiving Confidential Information are presently
`
`without sufficient information to accept the representation(s) made by the party or parties
`
`producing Confidential Information as to the confidential, proprietary, and/or trade secret nature
`
`of such Confidential Information; and
`4.
`
`To protect the respective interests of the parties and third parties, and to facilitate
`
`the progress of disclosure and discovery in this case, the following Protective Order should issue.
`
`IT IS THEREFORE ORDERED THAT:
`
`2
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 3 of 23 PageID #: 1656
`
`
`
`1.
`
`This Protective Order shall apply to all information, documents, and things
`
`subject to discovery in this Action produced either by a party or a non-party (“producing party”
`
`or “disclosing party”) in discovery in this Action (“Action” shall include without limitation this
`
`litigation and any subpoena proceedings incident hereto before any tribunal) including, without
`
`limitation, testimony adduced at deposition upon oral examination or upon written questions,
`
`answers to interrogatories, documents and things produced, information obtained from inspection
`
`of premises or things, and answers to requests for admission, or information disclosed pursuant
`
`to subpoena under Fed. R. Civ. P. 45 (“Discovery Material”).
`2.
`
`Each producing party that produces or discloses any materials, answers to
`
`interrogatories, responses to requests for admission, trial testimony, deposition testimony, and
`
`transcripts of trial testimony and depositions, or information that the producing party believes
`
`should be subject to this Protective Order may designate the same as “CONFIDENTIAL,”
`
`“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” or “HIGHLY CONFIDENTIAL
`
`– RESTRICTED SOURCE CODE” (referred to collectively as “Confidential Material”). The
`
`producing party may use the designation “HIGHLY CONFIDENTIAL – RESTRICTED
`
`SOURCE CODE” to designate computer source code or documents that describe algorithms
`
`used in computer source code. Confidential Materials designated as “HIGHLY
`
`CONFIDENTIAL – OUTSIDE COUNSEL ONLY” or “HIGHLY CONFIDENTIAL –
`
`RESTRICTED SOURCE CODE” are hereinafter collectively referred to as “HIGHLY
`
`CONFIDENTIAL” material.
`
`3
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 4 of 23 PageID #: 1657
`
`
`
`a. Designation as “CONFIDENTIAL”: The term “CONFIDENTIAL”
`
`information shall apply to a producing party’s confidential and nonpublic information, the
`
`disclosure of which the producing party contends could cause harm to the business operations of
`
`the producing party or provide improper advantage to others, and that is not otherwise marked or
`
`designated by the producing party as “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
`
`ONLY,” or as “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE.”
`b. Designation as “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL
`
`ONLY”: The term “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” shall apply
`
`only to a producing party’s highly confidential and proprietary business, commercial,
`
`competitive, financial, marketing, sales and technical information that the producing party
`
`reasonably and in good faith believes is so highly sensitive that its disclosure to an employee of a
`
`party other than the producing party would reveal significant business, commercial, competitive,
`
`financial, marketing, sales or technical advantages of the producing party. The term “HIGHLY
`
`CONFIDENTIAL – OUTSIDE COUNSEL ONLY” information shall include, but is not limited
`
`to, (1) current business/strategic plans, (2) sales, cost, and price information including future
`
`sales/financial projections, (3) non-public marketing information including future marketing
`
`plans, (4) detailed sales and financial data that includes costs and profits information, (5)
`
`customer lists, (6) licensing, licensing policies, and licensing negotiations, (7) non-public source
`
`code, specifications, schematics, and other documents used in connection with generating such
`
`source code, and other non-public technical specifications, schematics and documents showing
`
`the producing party’s product functionality, features, and operation, and (8) other information of
`
`business, commercial, competitive, financial, marketing, sales and technical significance
`
`comparable to the items listed in this paragraph. For purposes of this Order, the term “source
`
`code” shall include human-readable and machine-readable program codes, as well as executable
`
`code and electronically created design files such as CAD files.
`3.
`
`In determining the scope of information which a producing party may designate
`
`4
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 5 of 23 PageID #: 1658
`
`
`
`as Confidential Material, each party acknowledges the importance of client access to information
`
`necessary to client decision-making in the prosecution or defense of the litigation, and therefore
`
`agrees that designations of information as Confidential Material and responses to requests to
`
`permit further disclosure of Confidential Material shall be made in good faith and not (1) to
`
`impose burden or delay on an opposing party, or (2) for tactical or other advantage in litigation.
`
`No published documents shall be designated as “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL,” even if the published documents are attachments to, or intermingled with,
`
`documents properly designated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL.”
`4.
`
`The labeling or marking of a document or tangible thing with the designation
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” shall be made when a copy of the
`
`document or thing is provided to the receiving party by placing the legend “CONFIDENTIAL,”
`
`“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY,” or “HIGHLY CONFIDENTIAL
`
`– RESTRICTED SOURCE CODE” on the face of each such document or thing. Any such
`
`designation that is inadvertently omitted or mis-designated may be corrected by written
`
`notification to counsel for the receiving party, and the receiving party shall thereafter mark and
`
`treat the materials as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” as appropriate, and
`
`such material shall be subject to this Protective Order as if it had been initially so designated. If,
`
`prior to receiving such notice, the receiving party has disseminated the Confidential Material to
`
`individuals not authorized to receive it hereunder, it shall make a reasonable effort to retrieve the
`
`Confidential Material or to otherwise assure that the recipient(s) properly mark the Confidential
`
`Material and maintain the confidentiality of the Confidential Material, but shall have no other
`
`responsibility or obligation with respect to the information disseminated.
`5.
`
`In the case of deposition upon oral examination or written questions, such
`
`testimony shall be deemed “HIGHLY CONFIDENTIAL” until the expiration of thirty (30) days
`
`after the deposition unless otherwise designated at the time of the deposition or during the thirty
`
`(30) day period. Pages or entire transcripts of testimony given at a deposition or hearing may be
`
`5
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 6 of 23 PageID #: 1659
`
`
`
`designated as containing “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information by
`
`an appropriate statement either at the time of the giving of such testimony or by written
`
`notification within thirty (30) days after the deposition. If the testimony is not otherwise
`
`designated at the time of the deposition or during the thirty (30) day period after the deposition,
`
`the testimony will be deemed to be “non-confidential.”
`6.
`
`In the case of written discovery responses and the information contained therein,
`
`the responses may be designated as containing “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL” information by means of a statement at the conclusion of each response that
`
`contains such information specifying the level of designation of the Confidential Information and
`
`by placing a legend on the front page of such discovery responses stating: “CONTAINS
`
`CONFIDENTIAL INFORMATION/[the highest level of designation contained in the answers].”
`
`Any such designation that is inadvertently omitted or mis-designated may be corrected within
`
`thirty (30) days of service of such discovery responses by written notification to counsel for the
`
`receiving party, and the receiving party shall thereafter mark and treat the materials as
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” as appropriate, and such material shall be
`
`subject to this Protective Order as if it had been initially so designated. If, prior to receiving such
`
`notice, the receiving party has disseminated the Confidential Material to individuals not
`
`authorized to receive it hereunder, it shall make a reasonable effort to retrieve the Confidential
`
`Material or to otherwise assure that the recipient(s) properly mark and maintain the
`
`confidentiality of the Confidential Material, but shall have no other responsibility or obligation
`
`with respect to the information disseminated.
`7.
`
`In the case of Confidential Information not reduced to documentary or tangible
`
`form or which cannot be conveniently designated as set forth above, such information may be
`
`designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” information by informing the
`
`receiving party of the designation in writing at the time of transfer of such information. Any
`
`such designation notice that is inadvertently not provided may be corrected within thirty (30)
`
`6
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 7 of 23 PageID #: 1660
`
`
`
`days of transfer of such information, and the receiving party shall thereafter treat the materials as
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL,” as appropriate, and such material shall be
`
`subject to this Protective Order as if it had been initially so designated. If, prior to receiving such
`
`notice, the receiving party has disseminated the Confidential Material to individuals not
`
`authorized to receive it hereunder, it shall make a reasonable effort to retrieve the Confidential
`
`Material or to otherwise assure that the recipient(s) properly maintain the confidentiality of the
`
`Confidential Material, but shall have no other responsibility or obligation with respect to the
`
`information disseminated.
`8.
`
`Any documents or tangible things made available for inspection prior to
`
`producing copies of selected items shall initially be deemed “HIGHLY CONFIDENTIAL”
`
`unless otherwise designated at the time of inspection and shall be subject to this Protective
`
`Order.
`
`9.
`
`Disclosure of CONFIDENTIAL Material. “CONFIDENTIAL” Material and
`
`any information contained therein shall be disclosed only to the following persons:
`a. Counsel of record in this action for the receiving party, counsel of record for
`
`the parties involved in this action, including both local and trial counsel, provided such persons
`
`agree to be bound by this Protective Order.
`b. Employees and agents of such counsel of record including paralegals,
`
`litigation support services, secretarial and clerical staff as well as the following categories of
`
`persons provided that such persons have no involvement in addressing any matter regarding the
`
`substantive issues in the case: independent legal translators retained to translate in connection
`
`with this action; independent stenographic reporters and videographers retained to record and
`
`transcribe testimony in connection with this action; graphics, translation, or design services
`
`retained by counsel of record for purposes of preparing demonstrative or other exhibits for
`
`deposition, trial, or other court proceedings in this action; and non–technical jury or trial
`
`consulting services; provided all such individuals agree to be bound by this Protective Order; and
`
`7
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 8 of 23 PageID #: 1661
`
`
`
`mock jurors who are not regularly employed by any party to this litigation and who have signed
`
`the undertaking attached as exhibit A;
`c.
`
`The Court, its personnel and stenographic reporters (with such Confidential
`
`Material having been filed under seal or with other suitable precautions as determined by the
`
`Court);
`
`d. At a deposition or at trial, any person who authored or previously received
`
`the Confidential Material and, subject to timely objection including objection that such person is
`
`not authorized to receive such information, any person currently employed by the designating
`
`party; and
`
`e. Any experts or consultants and employees and assistants under the control
`
`of such expert or consultant, who (1) is engaged by counsel of record in this action, whether or
`
`not such expert or consultant is paid directly by a party and (2) is not regularly employed by a
`
`party hereto, other than by the designating party, provided however that disclosure to such
`
`persons shall be made only on the conditions set forth in paragraphs 12 and 13 below.
`f. No more than two (2) in-house counsel who act in a legal capacity for the
`
`receiving party and who are responsible for supervising this Action and their subordinate
`
`paralegals, litigation support services, secretarial and clerical staff.
`
`
`
`10. Disclosure of HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY
`
`Material. “HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” Material and any
`
`information contained therein shall be disclosed only to the following persons:
`a. Counsel of record in this action for the receiving party, counsel of record for
`
`the parties involved in this action, including both local and trial counsel, provided such persons
`
`agree to be bound by this Protective Order.
`b. Employees and agents of such counsel of record including paralegals,
`
`litigation support services, secretarial and clerical staff as well as the following categories of
`
`persons provided that such persons have no involvement in addressing any matter regarding the
`
`8
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 9 of 23 PageID #: 1662
`
`
`
`substantive issues in the case: independent legal translators retained to translate in connection
`
`with this action; independent stenographic reporters and videographers retained to record and
`
`transcribe testimony in connection with this action; graphics, translation, or design services
`
`retained by counsel of record for purposes of preparing demonstrative or other exhibits for
`
`deposition, trial, or other court proceedings in this action; and non–technical jury or trial
`
`consulting services; provided all such individuals agree to be bound by this Protective Order; and
`
`mock jurors who are not regularly employed by any party to this litigation and who have signed
`
`the undertaking attached as exhibit A;
`c.
`
`The Court, its personnel and stenographic reporters (with such Highly
`
`Confidential Material having been filed under seal or with other suitable precautions as
`
`determined by the Court);
`d. At a deposition or at trial, any person who authored or previously received
`
`the Highly Confidential Material and, subject to timely objection including objection that such
`
`person is not authorized to receive such information, any person currently employed by the
`
`designating party; and
`e. Any experts or consultants retained by the plaintiff or the producing
`
`defendant, and employees and assistants under the control of such expert or consultant, who (1)
`
`is engaged by counsel of record in this action, whether or not such expert or consultant is paid
`
`directly by a party, and (2) is not regularly employed by a party hereto, other than by the
`
`designating party, provided however that disclosure to such persons shall be made only on the
`
`conditions set forth in paragraphs 12 and 13 below.
`
`
`
`11. Disclosure of HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE
`
`Material. “HIGHLY RESTRICTED CONFIDENTIAL – RESTRICTED SOURCE CODE”
`
`Material and any information contained therein may be disclosed only to the following persons
`
`and in strict accordance with the following procedures:
`a. HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE
`
`9
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 10 of 23 PageID #:
` 1663
`
`
`
`material, to the extent in electronic format, will be provided on a standalone computer with all
`
`ports, software, receivers, transmitters, and other avenues that could be used to copy, transfer, or
`
`transmit such data blocked (“Standalone Computer”). The Standalone Computer shall be
`
`maintained in the sole control and custody of counsel of record for the producing party and shall
`
`be maintained in the United States at an office of counsel of record for the producing party or at
`
`such other location as shall be mutually agreed to by the producing party and the receiving party.
`b.
`
`“HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE” material,
`
`to the extent not in electronic format, shall be designated using the same processes applied to
`
`“HIGHLY CONFIDENTIAL – OUTSIDE COUNSEL ONLY” Materials described herein.
`c. Only persons designated under paragraph 10(a) and 10(e) above shall have
`
`access to the Standalone Computer, provided however that the following additional restrictions
`
`shall apply to such access:
`(i)
`
`at least ten (10) business days prior to the date on which access is
`
`sought to such Standalone Computer (“ten day notice period”), counsel of record for the
`
`receiving party shall provide to the producing party a list of all individuals seeking to access such
`
`Standalone Computer and the producing party shall have the right to object to such access in
`
`accordance with paragraph 14 herein;
`(ii) during the pendency of the ten day notice period, no listed individual
`
`shall have access to the Standalone Computer;
`(iii) if an objection to any specific listed individual is made, that
`
`individual shall not have access to the Standalone Computer until resolution of such objection;
`(iv) each time a person accesses the Standalone Computer, the person
`
`shall sign a sign-in sheet prior to, and the sign-out sheet subsequent to, accessing the Standalone
`
`Computer including the name of the person accessing, the date and time in and out, and whether
`
`any hard copies were made;
`(v) no recordable media or recordable devices, including without
`
`10
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 11 of 23 PageID #:
` 1664
`
`
`
`limitation sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
`
`DVDs, or drives of any kind, shall be permitted in the room where access to the Standalone
`
`Computer is maintained;
`(vi) a person accessing the Standalone Computer shall be entitled to take
`
`notes relating to the “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE” Materials
`
`provided by the Standalone Computer, but may not copy the “HIGHLY CONFIDENTIAL –
`
`RESTRICTED SOURCE CODE” Materials into the notes and may not take such notes
`
`electronically on the Standalone Computer itself or any other computer (except that, after the
`
`conclusion of access to the Standalone Computer, the receiving party may enter notes regarding
`
`the “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE” Materials onto a
`
`computer); and
`
`(vii) the producing party may visually monitor the activities of the
`
`person(s) accessing the Standalone Computer during any review of “HIGHLY CONFIDENTIAL
`
`– RESTRICTED SOURCE CODE” Materials, but only to ensure that no unauthorized electronic
`
`records of the “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE” Materials and
`
`no information concerning the “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE”
`
`Materials are being created or transmitted in any way.
`d. The receiving party shall not have the right to, and agrees not to, copy,
`transmit, or duplicate “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE”
`
`Materials in any manner, including scanning or otherwise creating an electronic image of the
`
`“HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE” Materials, except as set forth
`
`in the paragraph below.
`(i) A printer shall be attached to the Standalone Computer and the
`
`receiving party shall make no more than 50 total pages of hard copies of “HIGHLY
`
`CONFIDENTIAL – RESTRICTED SOURCE CODE” Material they in good faith consider to be
`
`necessary to proving elements of their case. If the receiving party believes that good cause exists
`
`11
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 12 of 23 PageID #:
` 1665
`
`
`
`for printing more than 50 total pages of “HIGHLY CONFIDENTIAL – RESTRICTED
`
`SOURCE CODE” Material, it may request permission from the producing party to do so. If the
`
`receiving party and producing party cannot agree on printing more than 50 total pages of
`
`“HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE” Material, the receiving party
`
`may seek leave of Court and obtain copies of the additional pages upon a showing of good cause.
`(ii) Whenever hard copies are made pursuant to paragraph 11(d)(i),
`
`copies of the hard copies shall be provided to counsel for the producing party along with an
`
`identification of when the copies were made and who made them.
`(iii) Any hard copies shall be conspicuously marked “HIGHLY
`CONFIDENTIAL – RESTRICTED SOURCE CODE” in conformity with paragraphs 6 – 11
`
`above.
`
`(iv) The receiving party shall keep a log including: (a) the custodian of
`
`each copy of any “HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE” materials;
`
`(b) the name of all persons accessing the “HIGHLY CONFIDENTIAL - RESTRICTED
`
`SOURCE CODE” materials; and (c) the date and time of access of the “HIGHLY
`
`CONFIDENTIAL - RESTRICTED SOURCE CODE” materials (i.e., the dates and times when
`
`the person(s) enter and depart the locked room where the “HIGHLY CONFIDENTIAL –
`
`RESTRICTED SOURCE CODE” Material is stored). The producing party shall be entitled to a
`
`copy of the log upon two (2) business day’s advance notice to the receiving party. Further, all
`
`persons who will review a producing party’s “HIGHLY CONFIDENTIAL – RESTRICTED
`
`SOURCE CODE” Material on behalf of a receiving party, including members of a receiving
`
`party’s outside law firm, shall be identified in writing to the producing party at least five (5) days
`
`in advance of the first time that such person reviews such “HIGHLY CONFIDENTIAL –
`
`RESTRICTED SOURCE CODE” Material. Such identification shall be in addition to any other
`
`disclosure required under this Order.
`e. All “HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE”
`
`12
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 13 of 23 PageID #:
` 1666
`
`
`
`materials, including all copies made pursuant to paragraph 11(d)(i), in the possession of the
`
`receiving party shall be maintained in a secured, locked area.
`f.
`
`For depositions, the receiving party shall not bring copies of any printed
`
`“HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE” Material. Rather, at least five
`
`(5) business days before the date of the deposition, the receiving party shall notify the producing
`
`party about the specific portions of the “HIGHLY CONFIDENTIAL - RESTRICTED SOURCE
`
`CODE” Material it wishes to use at the deposition, and the producing party shall Bates number
`
`and label such portions of the “HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE”
`
`Material if such portions of the material have not already been numbered and labeled, and the
`
`producing party shall bring printed copies of those portions to the deposition for use by the
`
`receiving party. Copies of “HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE”
`
`Material that are marked as deposition exhibits shall not be provided to the Court Reporter or
`
`attached to deposition transcripts; rather, the deposition record will identify the exhibit by Bates
`
`number and portions of the “HIGHLY CONFIDENTIAL - RESTRICTED SOURCE CODE”
`
`Material about which the deponent testified shall be provided to the receiving party if not already
`
`made available to the receiving party. All paper copies of “HIGHLY CONFIDENTIAL -
`
`RESTRICTED SOURCE CODE” Material brought to the deposition shall remain with the
`
`producing party’s outside counsel for secure destruction in a timely manner following the
`
`deposition.
`
`g. The receiving party shall not convert any of the information contained in the
`
`hard copies into an electronic format, except when reproducing excerpts of the information in an
`
`expert report or a court filing, and then only according to the additional restrictions on “HIGHLY
`
`CONFIDENTIAL – RESTRICTED SOURCE CODE” Materials contained in this Order.
`h. Export Control Requirements: Notwithstanding anything to the contrary
`contained herein, the following additional requirement applies to “HIGHLY CONFIDENTIAL –
`
`RESTRICTED SOURCE CODE” Materials: The receiving party acknowledges that the
`
`13
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 14 of 23 PageID #:
` 1667
`
`
`
`“HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE” Materials received under this
`
`Protective Order may be subject to export controls under the laws of the United States and other
`
`applicable laws. The receiving party shall comply with such laws and agrees not to knowingly
`
`export, re-export or transfer “HIGHLY CONFIDENTIAL – RESTRICTED SOURCE CODE”
`
`Materials of the producing party without first obtaining all required United States or any other
`
`applicable authorizations or licenses.
`12.
`
`The plaintiff, any attorney representing the plaintiff, whether in-house or outside
`
`counsel, and any person retained by the plaintiff or attorneys of the plaintiff who obtains,
`
`receives, accesses, or otherwise learns, in whole or in part, technical information designated
`
`“CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” under this Protective Order shall not
`
`prepare, prosecute, supervise, or assist in the prosecution of any patent application pertaining to
`
`Power over Ethernet technology within one (1) year from disclosure of the technical information
`
`or one (1) year after conclusion of the litigation (including any appeals), whichever period is
`
`longer. To ensure compliance with the purpose of this provision, the plaintiff shall create an
`
`ethical wall between those persons with access to technical information (e.g., information
`
`relating to the functionality of the disclosing parties’ products rather than confidential economic
`
`information relating to such products) designated “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL” and those individuals who prepare, prosecute, supervise, or assist in the
`
`prosecution of any patent application pertaining to Power over Ethernet technology. Outside
`
`litigation counsel for the plaintiff who obtains, receives, accesses, or otherwise learns of, in
`
`whole or in part, technical information designated “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL,” however, may participate in any reexamination proceeding of the patent at
`
`issue in this Action, except that outside counsel for the plaintiff may not act as counsel of record
`
`in any reexamination proceeding and may not reveal the contents of any “CONFIDENTIAL” or
`
`“HIGHLY CONFIDENTIAL” information to reexamination patent counsel or agents.
`13.
`
`Any defendant, any attorney representing the defendant, whether in-house or
`
`14
`
`

`

`Case 6:11-cv-00492-LED-JDL Document 234 Filed 09/07/12 Page 15 of 23 PageID #:
` 1668
`
`
`
`outside counsel, and any person retained by the defendant or attorneys of the defendant who
`
`obtains, receives, accesses, or otherwise learns, in whole or in part, technical information from
`
`another defendant designated “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL” under this
`
`Protective Order shall not prepare, prosecute, supervise, or assist in the prosecution of any patent
`
`application pertaining to Power over Ethernet technology within one (1) year from disclosure of
`
`the technical information or one (1) year after conclusion of the litigation (including any
`
`appeals), whichever period is longer. To ensure compliance with the purpose of this provision,
`
`the receiving defendant shall create an ethical wall between those persons with access to
`
`technical information of the other defendant designated “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL” and those individuals who prepare, prosecute, supervise, or assist in the
`
`prosecution of any patent application pertaining to Power over Ethernet technology. Outside
`
`litigation counsel for the defendant who obtains, receives, accesses, or otherwise learns of, in
`
`whole or in part, technical information designated “CONFIDENTIAL” or “HIGHLY
`
`CONFIDENTIAL,” however, may participate in any reexamination proceeding of the patent at
`
`issue in this Action.
`14.
`
`Trial counsel desiring to disclose Confidential Materials to in-house counsel,
`
`experts, or consultants specified in paragraphs 9(e), 9(f), or 10(e) above shall first obtain a signed
`
`undertaking, in the form of Exhibit A attached hereto, from each such in-house counsel, expert,
`
`or consultant, and trial counsel shall retain in his/her files the original of each such signed
`
`undertaking. A copy of the proposed undertaking shall be forwarded to trial counsel for each
`
`producing party with the current curricu