UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE INC.
`
`Petitioner
`
`V.
`
`BE. TECHNOLOGY, L.L.C.
`Patent Owner
`
`Case IPR2014-00031
`
`Patent 6,771,290
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`
`LYNNE E. PETTIGREW, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`B.E. Technology’s Motion for Pro Hac Vice Admission of Daniel J. Weinberg
`Pursuant to 37 C.F.R. § 42.10
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`
`PO. Box 1450
`
`Alexandria, VA 22313-1450
`
`
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE INC.
`
`Petitioner
`
`V.
`
`BE. TECHNOLOGY, L.L.C.
`Patent Owner
`
`Case IPR2014-00031
`
`Patent 6,771,290
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE, and
`
`LYNNE E. PETTIGREW, Administrative Patent Judges.
`
`PETTIGREW, Administrative Patent Judge.
`
`B.E. Technology’s Motion for Pro Hac Vice Admission of Daniel J. Weinberg
`Pursuant to 37 C.F.R. § 42.10
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`
`PO. Box 1450
`
`Alexandria, VA 22313-1450
`
`
`
`Patent Owner respectfully requests the Board to recognize Daniel J.
`
`Weinberg as counsel pro hac vice during this proceeding.1 Pursuant to 37 CPR. §
`
`42.10 and in response to the authorization provided by the United States Patent and
`
`Trademark Office’s Patent Trial and Appeal Board (“Board”) in the Notice of
`
`Filing Date Accorded to Petition (Paper Number 3, entered October 11, 2013)
`
`(“Notice”), Patent Owner B.E. Technology, L.L.C. (“Patent Owner”) submits this
`
`motion for Mr. Weinberg to appear pro hac vice.
`
`1.
`
`Timefor Filing
`
`Pursuant to the “Order — Authorizing Motion for Pro Hac Vice Admission”
`
`in Case IPR2013-006392 (“Order”), this motion for pro hac vice admission is being
`
`filed no sooner than twenty-one (21) days after service of the petition.
`
`11.
`
`Good Causefor Additional Back— Up Counsel
`
`Patent Owner respectfully requests admission of Mr. Weinberg as additional
`
`back-up counsel3 to promote attorney availability for the discovery period and trial.
`
`1 Corresponding motions for Pro Hac Vice admission are being concurrently filed in co-pending
`cases IPR2014-00029, IPR2014-00033, IPR2014-0003 8, IPR20 1 4-0003 9, IPR2014-00040,
`
`IPR2014-00044, IPR2014-0005 2, IPR2014-0005 3 , IPR2014-00698, and IPR2014-00699.
`
`2 Patent Owner notes that while the Notice references the “Order — Authorizing Motion for Pro
`Hac Vice Admission” in Case IPR2013-00010 (MPT), the Order in Case IPR2013-00639 states
`that the Final Rule regarding Changes to Representation of Others Before the United States
`Patent and Trademark Office removes part 10 of title 37, C.F.R. referred to in the Order in Case
`IPR2013-00010 (MPT). Accordingly, for purpose of this proceeding, Patent Owner will refer to
`the Order in Case IPR2013-00639.
`
`3 Patent Owner is concurrently filing corresponding motions for Pro Hac Vice admission for
`Jessica N. Leal as additional back-up counsel.
`
`
`
`Patent Owner has a sufficient need for the admission of additional back-up
`
`counsel. The Board has instituted nine separate inter partes review (“IPR”) trials
`
`against two B.E. Technology, L.L.C. patents. Five more IPR petitions have been
`
`filed with motions for joinder, bringing the total to fourteen IPRS. Patent Owner
`
`has to conduct discovery, including deposing five experts, three of whom have
`
`offered opinions on both patents. In order to efficiently and effectively cover the
`
`ground necessary in these IPRs, Patent Owner seeks the pro hac vice admission of
`
`additional back-up counsel. This request is accompanied by the attached Power of
`
`Attorney.
`
`111.
`
`Statement ofFacts
`
`Pursuant to the Order, the following statement of facts, supported by the
`
`attached Declaration of Mr. Weinberg, shows that there is good cause for the
`
`Board to recognize Mr. Weinberg pro hac vice.
`
`Lead counsel for this proceeding, Jason S. Angell, is a registered practitioner
`
`(Reg. No. 51408).
`
`Mr. Weinberg is an experienced litigation attorney, and has served as
`
`counsel in numerous complex cases and patent infringement litigations in various
`
`district courts. Mr. Weinberg has not been suspended or disbarred from practice,
`
`and he has not had any application for admission to practice denied, or had any
`
`sanctions or contempt citations imposed against him. Mr. Weinberg is an active
`
`
`
`member in good standing of the California Bar and is admitted to practice before
`
`the United States Court of Appeals for the Ninth Circuit, the United States Court of
`
`Appeals for the Federal Circuit, the US. District Court for the Northern District of
`
`California, the United States District Court for the Central District of California,
`
`and the US. District Court for the Western District of Tennessee. Mr. Weinberg’s
`
`mailing address is Freitas Angell & Weinberg LLP, 350 Marine Parkway, Suite
`
`200, Redwood Shores, California 94065, his email address is
`
`dweinberg@fawlaw.com, and his direct dial telephone number is (650) 730—5501.
`
`Mr. Weinberg is a member of the litigation team for Patent Owner in BE.
`
`Technology, L.L. C. v. Google Inc., No. 2: 12-cv-02830, a co-pending litigation in
`
`the US. District Court for the Western District of Tennessee. That action involves
`
`US. Patent No. 6,771,290 (“’290 Patent”), the patent at issue in this proceeding.
`
`In his role as counsel in the co-pending case, Mr. Weinberg is knowledgeable
`
`about the ’290 Patent and assertions regarding the invalidity of the ’290 patent.
`
`Further, Mr. Weinberg is familiar with the factual and legal matters at issue in that
`
`case, including the claim construction issues likely to be presented there. Mr.
`
`Weinberg has thus established familiarity with the subject matter at issue in this
`
`proceeding.
`
`Mr. Weinberg has read and will comply with the Office Patent Trial Practice
`
`Guide and the Board’s Rules for Practice for Trials set forth in part 42 of the
`
`
`
`C.F.R., and he agrees to be subject to the USPTO Rules of Professional Conduct
`
`set forth in 37 C.F.R. § 11.101 et seq. and disciplinary jurisdiction under 37 C.F.R.
`
`§ ll.l9(a). Mr. Weinberg has not applied pro hac vice in any other proceeding
`
`before the United States Patent and Trademark Office in the last three years, other
`
`than in co-pending inter partes review proceedings involving B.E. Technology
`
`patents.
`
`Patent Owner has expended significant resources in the co-pending litigation
`
`with Mr. Weinberg as counsel, and Patent Owner wishes Mr. Weinberg to
`
`represent it in this proceeding.
`
`IV. Aflia’avit or Declaration ofIndividual Seeking to Appear
`
`This motion for pro hac vice admission is accompanied by a Declaration of
`
`Mr. Weinberg as required by the Order.
`
`V.
`
`Conclusion
`
`The facts contained in the Statement of Facts above, and contained in the
`
`Declaration of Mr. Weinberg, establish that there is good cause to admit Mr.
`
`Weinberg pro hac vice in this proceeding under 37 C.F.R. § 42.10(c).
`
`Date: May 29, 2014
`
`Respectfully submitted,
`
`By: /S/ Jason S. Angell
`Jason S. Angell
`Reg. No. 51408
`Counsel for Patent Owner
`
`
`
`EXHIBIT A
`
`
`
`DECLARATION OF DANIEL J. WEINBERG IN SUPPORT OF
`
`MOTION FOR PRO HAC VICE ADMISSION
`
`Pursuant to 37 C.F.R. § 1.68, 1, Daniel J. Weinberg, hereby attest to the
`
`following:
`
`1.
`
`My mailing address is Freitas Angell & Weinberg LLP, 350 Marine
`
`Parkway, Suite 200, Redwood Shores, California 94065, my email address is
`
`dweinberg@fawlaw.com, and my telephone number is (650) 730-5501.
`
`2.
`
`I am a member in good standing of the California Bar (admitted in
`
`2003), as well as the following federal courts:
`
`a.
`
`b.
`
`0.
`
`(1.
`
`e.
`
`US. Court of Appeals for the Ninth Circuit;
`
`US. Court of Appeals for the Federal Circuit;
`
`US. District Court for the Northern District of California;
`
`US. District Court for the Central District of California; and
`
`US. District Court for the Western District of Tennessee.
`
`3.
`
`I have not been suspended or disbarred from practice before any court
`
`or administrative body;
`
`4.
`
`I have never had an application for admission to practice before any
`
`court or administrative body denied;
`
`5.
`
`I have never had sanctions or contempt citations imposed by any court
`
`or administrative body against me;
`
`
`
`6.
`
`I have read and will comply with the Office Patent Trial Practice
`
`Guide and the Board’s Rules of Practice for Trials set forth in part 42 of 37 C.F.R.;
`
`7.
`
`I will be subject to the USPTO Rules of Professional Conduct set
`
`forth in 37 C.F.R. §§ 11.101 et seq. and disciplinary jurisdiction under 37 C.F.R. §
`
`1 1 . 19(a);
`
`8.
`
`I have not applied to appear pro hac vice before the United States
`
`Patent and Trademark Office in any other proceeding in the last three years; and
`
`9.
`
`I graduated from law school in 2003 and I have been engaged full
`
`time in private law practice since October 2003. I am an experienced litigation
`
`attorney and have served as counsel in numerous complex litigations and patent
`
`infringement cases in various district courts, including the Northern District of
`
`California, Southern District of New York, Eastern District of Virginia, Northern
`
`District of Illinois, and Western District of Tennessee.
`
`10.
`
`I am a member of the litigation team for Patent Owner in a co-pending
`
`lawsuit titled B.E. Technology, L.L. C. v. Google Inc., No. 2:12-cv—02830. In that
`
`case, Patent Owner alleges that Petitioner infringes US. Patent No. 6,771,290 (the
`
`“’290 Patent”). I have reviewed and am familiar with the ’290 Patent and
`
`allegations relating to the validity of the patent. Accordingly, I am familiar with
`
`the subject matter at issue in this proceeding.
`
`
`
`11.
`
`As part of my work in connection with the district court litigation
`
`referred to above, I have had access to Petitioner’s sensitive business information
`
`that is subject to the Stipulated Patent Protective Order dated March 7, 2014. A
`
`true and correct copy of the March 7, 2014 protective order is attached hereto as
`
`Exhibit C. The protective order allows me to participate in this proceeding
`
`provided I not participate in any activities involving the amendment of claims. In
`
`addition, the protective order bars me from using any designated material in
`
`connection with this proceeding.
`
`I will honor these restrictions faithfully if I am
`
`admitted to practice pro hac vice in this inter partes review.
`
`I declare under penalty of perjury under the laws of the United States of
`
`America that the foregoing is true and correct.
`
`Executed on May 29, 2014.
`
`MBA/—
`
`Daniel J. Weinberg
`
`
`
`EXHIBIT B
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE PATENT TRIAL AND APPEAL BOARD
`
`GOOGLE INC.
`
`Petitioner
`
`V.
`
`BE. TECHNOLOGY, L.L.C.
`
`Patent Owner
`
`Case IPR2014-00031
`
`Patent 6,771,290 B1
`
`Before SALLY C. MEDLEY, KALYAN K. DESHPANDE and LYNNE E.
`PETTIGREW, Administrative Patent Judges
`
`POWER OF ATTORNEY
`
`DESIGNATING ADDITIONAL BACK-UP COUNSEL
`
`Mail Stop Patent Board
`Patent Trial and Appeal Board
`United States Patent and Trademark Office
`
`PO. Box 1450
`
`Alexandria, VA 22313-1450
`
`
`
`Pursuant to 37 C.F.R. § 42.10(b), Patent Owner, B.E. Technology, L.L.C.,
`
`hereby appoints the following as its additional back-up counsel to transact all
`
`business in the United States Patent & Trademark Office associated with the
`
`above-captioned interpartes review:
`
`Additional Back-Up Counsel
`
`Daniel J. Weinberg (pro hac vice motion)
`dwc i n be] '1; ED. fa w] aw .901“
`FREITAS ANGELL & WEINBERG LLP
`350 Marine Parkway, Suite 200
`Redwood Shores, CA 94065
`Telephone: (650)593-6300
`Facsimile: (650)593-6301
`
`The individual signing below as the authority to execute this document on
`
`behalf of HE. Technology, L.L.C.
`
`
`
`
`
`EXHIBIT C
`
`
`
`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 1 of 33
`
`PageID 603
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`
`WESTERN DIVISION
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`Civil Action No. 12-cv-02767 — JPM-tmp
`
`AMAZON DIGITAL SERVICES, INC.
`
`Defendant.
`
`VVVVVVVVVV
`VVVVVVVVV
`VVVVVVVVV
`VVVVVVVVV
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`FACEBOOK, INC.
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`LINKEDIN CORP.,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`GROUPON, INC.,
`
`Defendant.
`
`Civil Action No. 12-cv-02769 — JPM-tmp
`
`Civil Action No. 12-cv-02772 — JPM-tmp
`
`Civil Action No. 12-cv-02781 —— JPM-tmp
`
`
`
`Case 2:12-CV+02826-JPM-tmp Document 60 Filed 03/07/14 Page 2 of 33
`
`PageID 604
`
`
`
`
`
`Civil Action No. 12-cv-02782 — JPM-tmp
`
`Civil Action No. 12-cv-02783 — JPM-tmp
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`v.
`
`PANDORA MEDIA, INC.,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`v.
`
`TWITTER, INC.,
`
`Defendant.
`
`
`
`Vvvvvvvvv
`VVVVVVVVV
`vvvvvvvvv
`vvvvvvvvvvv
`
`
`
`Civil Action No. 12-cv-02823 — JPM-tmp
`
`Civil Action No. 12-cv-02824 — JPM-tmp
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`v.
`
`BARNES & NOBLE, INC.,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`SAMSUNG TELECOMMUNICATIONS
`
`AMERICA, LLC,
`
`Defendant.
`
`
`
`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 3 of 33
`
`PageID 605
`
`
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`Civil Action No. 12-cv-02825 — JPM-tmp
`
`Defendant.
`
`
`VVVVVVVVVV
`vvvvvvvvvv
`VVVVVVVVVV
`vvvvvvvvv
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`SONY COMPUTER ENTERTAINMENT
`
`AMERICA LLC,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`SONY MOBILE
`
`COMMUNICATIONS (USA) INC.,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`SONY ELECTRONICS INC.,
`
`Defendant.
`
`Civil Action No. 12-cv-02826 — JPM-tmp
`
`Civil Action No. 12-cv-02827 — JPM-tmp
`
`Civil Action No. 12-cv-02828 — JPM—tmp
`
`
`
`Case 2:12-cv-02826—JPM-tmp Document 60 Filed 03/07/14 Page 4 of 33
`
`PagelD 606
`
`
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Civil Action No. 12-cv-02829 — JPM-tmp
`
`Civil Action No. 12-cv-02830 — JPM-tmp
`
`Plaintiff,
`
`V.
`
`MICROSOFT CORP.,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`GOOGLE INC.
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`APPLE INC.,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`PEOPLE MEDIA, INC.
`
`Defendant.
`
`vvvvvvvvvv
`UVVVVVVVVV
`vvvvvvvvvv
`Vvvvvvvvvv
`
`Civil Action No. 12-cv-02831 — JPM-tmp
`
`Civil Action No. 12-cv-02833 — JPM-tmp
`
`
`
`
`
`Case 2:12-cv-02826—JPM-tmp Document 60 Filed 03/07/14 Page 5 of 33
`
`PagelD 607
`
`
`
`
`
`Civil Action No. 12-cv-02834 — JPM-tmp
`
`Civil Action No. 12-cv-02866 — JPM-tmp
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiff,
`
`V.
`
`MATCH.COM, LLC,
`
`Defendant.
`
`B.E. TECHNOLOGY, L.L.C.,
`
`Plaintiffs
`
`V.
`
`MOTOROLA MOBILITY
`
`HOLDINGS LLC,
`
`Defendant.
`
`Vvvvvvvvvv
`VVVVVVVVVV
`
`
`
`STIPULATED PATENT PROTECTIVE ORDER
`
`The parties to this Stipulated Protective Order have agreed to the terms of this Order.
`
`Accordingly, it is ORDERED:
`
`1. N. All disclosures, affidavits and declarations and exhibits thereto, deposition
`
`testimony and exhibits, discovery responses, documents, electronically stored information,
`
`tangible objects, information, and other things produced, provided, or disclosed in the course of
`
`this action which may be subject to restrictions on disclosure under this Order, and information
`
`derived directly therefrom (hereinafter referred to collectively as “documents”), shall be subject to
`
`this Order as set forth below. As there is a presumption in favor of open and public judicial
`
`proceedings in the federal courts, this Order shall be strictly construed in favor of public disclosure
`
`5
`
`
`
`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 6 of 33
`
`PagelD 608
`
`and open proceedings wherever possible. The Order is also subject to the Local Rules of this
`
`District and the Federal Rules of Civil Procedure on matters of procedure and calculation of time
`
`periods.
`
`2.
`
`Form and Timing of Designation. A party may designate documents that it produces as
`
`confidential and restricted in disclosure under this Order by placing or affixing the words
`
`“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” (hereinafter referred to as
`
`“CONFIDENTIAL”) or “ATTORNEYS EYES ONLY - SUBJECT TO PROTECTIVE ORDER”
`
`(hereinafter referred to as “ATTORNEYS EYES ONLY”) or “HIGHLY CONFIDENTIAL —
`
`SOURCE CODE — SUBJECT TO PROTECTIVE ORDER” (hereinafter referred to as “HIGHLY
`
`CONFIDENTIAL - SOURCE CODE”) on the document in a manner that will not interfere with
`
`the legibility of the document and that will permit complete removal of the designation.
`
`Documents shall be designated prior to or at the time of the production or disclosure of the
`
`documents.
`
`When a tangible object is produced for inspection subject to protection under this Order, a
`
`photograph thereof shall be produced at the time of inspection labeled with the designation
`
`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
`
`CODE. Thereafter any information learned or obtained as a result of the inspection shall be subject
`
`to protection under this Order in accordance with the applicable designation. When electronically
`
`stored information is produced which cannot itself be marked with the designation
`
`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
`
`CODE, the physical media on which such electronically stored information is produced shall be
`
`marked with the applicable designation. The party receiving such electronically stored information
`
`shall then be responsible for labeling any copies that it creates thereof, whether electronic or paper,
`
`
`
`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 7 of 33
`
`PagelD 609
`
`with the applicable designation. By written stipulation the parties may agree temporarily to
`
`designate original documents that are produced for inspection CONFIDENTIAL, ATTORNEYS
`
`EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE even though the original
`
`documents being produced have not themselves been so labeled. All information learned in the
`
`course of such an inspection shall be protected in accordance with the stipulated designation. The
`
`copies of documents that are selected for copying during such an inspection shall be marked
`
`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
`
`CODE as required under this Order and thereafter the copies shall be subject to protection under
`
`this Order in accordance with their designation. The designation of documents for protection under
`
`this Order does not mean that the document has any status or protection by statute or otherwise
`
`except to the extent and for the purposes of this Order.
`
`3.
`
`Documents Which May be Designated CONFIDENTIAL. Any party may designate
`
`documents as CONFIDENTIAL upon making a good faith determination that the documents
`
`contain information protected from disclosure by statute or that should be protected from
`
`disclosure as confidential business or personal information, medical or psychiatric information,
`
`trade secrets, personnel records, or such other sensitive commercial information that is not
`
`publicly available. Public records and documents that are publicly available may not be designated
`
`for protection under this Order.
`
`4.
`
`Documents Which May be Designated ATTORNEYS EYES ONLY. Any party may
`
`designate documents as ATTORNEYS EYES ONLY upon making a good faith determination that
`
`the documents contain information protected from disclosure by statute or that should be protected
`
`from disclosure as trade secrets or other highly sensitive business or personal information, the
`
`
`
`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 8 of 33
`
`PageID 610
`
`disclosure of which is likely to cause significant harm to an individual or to the business or
`
`competitive position of the designating party.
`
`5.
`
`Documents Which May be Designated HIGHLY CONFIDENTIAL - SOURCE
`
`CODE. Any party may designate documents as HIGHLY CONFIDENTIAL - SOURCE CODE
`
`upon making a good faith determination that the items contain extremely sensitive information or
`
`items representing computer source code and associated comments, including any documents
`
`containing source code.
`
`6.
`
`Degositions. Deposition testimony shall be deemed CONFIDENTIAL, ATTORNEYS
`
`EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE only if designated as such. Such
`
`designation shall be specific as to the portions of the transcript or any exhibit designated for
`
`protection under this Order. Thereafter, the deposition testimony and exhibits so designated shall
`
`be protected, pending objection, under the terms of this Order. By stipulation read into the record
`
`the parties may agree temporarily to designate an entire deposition and the exhibits used therein for
`
`protection under this Order pending receipt and review of the transcript. In such a circumstance,
`
`the parties shall review the transcript within thirty (30) days of the receipt thereof and specifically
`
`designate the testimony and exhibits that will be protected under this Order. Thereafier only the
`
`specifically designated testimony and exhibits shall be protected under the terms of this Order.
`
`Alternatively, a designating party may specify, at the deposition or up to thirty (30) days
`
`afterwards if that period is properly invoked, that the entire transcript shall be treated as
`
`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
`
`CODE. Transcripts containing CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY
`
`CONFIDENTIAL - SOURCE CODE shall have an obvious legend on the title page that the
`
`transcript contains CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY
`
`8
`
`
`
`Case 2:12—cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 9 of 33
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`CONFIDENTIAL - SOURCE CODE, and the title page shall be followed by a list of all pages
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`(including line numbers as appropriate) that have been designated as CONFIDENTIAL,
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`ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE and the level of
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`protection being asserted by the designating party. The designating party shall inform the court
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`reporter of these requirements. Any transcript that is prepared before the expiration of a thirty (30)
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`day period for designation shall be treated during that period as if it had been designated
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE in its entirety unless otherwise agreed. After the expiration of that period, the transcript
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`shall be treated only as actually designated.
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`7.
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`Protection of Confidential Material.
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`(a) Protection of Documents Designated CONFIDENTIAL. Documents designated
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`CONFIDENTIAL under this Order shall not be used for any purpose whatsoever other than the
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`prosecution or defense of this action, and of any appeal thereof. The parties and counsel for the
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`parties shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL
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`to any person or entity except as set forth in subparagraphs (1)-(7). Subject to these requirements,
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`the following categories of persons may be allowed to review documents that have been
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`designated CONFIDENTIAL.
`
`(1)
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`Outside Counsel of Record. Outside counsel of record for the parties and
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`employees of counsel who have responsibility for the preparation and trial of the
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`action.
`
`(2)
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`Riies. Not more than two (2) representatives of the receiving party who are
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`officers or employees of the receiving party or its corporate parents, subsidiaries,
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`and subsidiaries of parents, who may be, but need not be, in-house counsel for the
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`
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`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 10 of 33
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`PagelD 612
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`receiving party, as well as their immediate paralegals and staff, and who are either
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`responsible for making decisions dealing directly with the litigation in these actions
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`or who is assisting outside counsel in preparation for proceeding in these actions.
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`(3)
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`The Court. The Court and its personnel, a court appointed mediator, and the jury.
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`(4)
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`Court Reporters and Recorders. Court reporters and recorders engaged for
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`depositions.
`
`(5)
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`Persons Creating or Receiving Documents. Any person who authored or recorded
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`the designated document, and any person who has previously seen or was aware of
`
`the designated document.
`
`(6)
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`m. Experts retained by the parties or counsel for the parties to assist in the
`
`preparation and trial of this action or proceeding, but only if (a) such person is not a
`
`current employee of a party or of a party’s competitor, (b) at the time of retention,
`
`such person is not anticipated to become an employee of a party or of a party’s
`
`competitor, (c) disclosure to such person is reasonably necessary for this litigation,
`
`((1) after such persons have completed the certification contained in Attachment A,
`
`Acknowledgment of Understanding and Agreement to Be Bound and (e) after the
`
`procedures set forth in paragraph 7(d) below, have been followed.
`
`(7)
`
`Others by Consent. Other persons only by written consent of the designating party
`
`or upon order of the Court and on such conditions as may be agreed or ordered. All
`
`such persons shall execute the certification contained in Attachment A,
`
`Acknowledgment of Understanding and Agreement to Be Bound.
`
`(b) Protection of Documents Designated ATTORNEYS EYES ONLY and HIGHLY
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`CONFIDENTIAL - SOURCE CODE. Documents designated ATTORNEYS EYES ONLY or
`
`10
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`
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`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 11 of 33
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`PagelD 613
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`HIGHLY CONFIDENTIAL - SOURCE CODE under this Order shall not be used for any purpose
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`whatsoever other than the prosecution or defense of this action, and of any appeal thereof. The
`
`parties and counsel for the parties shall not disclose or permit the disclosure of any documents
`
`designated ATTORNEYS EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE CODE to any
`
`person or entity except as set forth in subparagraphs (1)-(6). Subject to these requirements, the
`
`following categories of persons may be allowed to review documents that have been designated
`
`ATTORNEYS EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE CODE.
`
`(1)
`
`Outside Counsel of Record. Outside counsel of record for the parties and
`
`employees of counsel who have responsibility for the preparation and trial of the
`
`action.
`
`(2)
`
`The Court. The Court and its personnel, a court appointed mediator, and the jury.
`
`(3)
`
`Court Reporters and Recorders. Court reporters and recorders engaged for
`
`depositions. Court reporters may not retain any copy of HIGHLY
`
`CONFIDENTIAL - SOURCE CODE.
`
`(4)
`
`Persons Creating or Receiving Documents. Any person who authored or recorded
`
`the designated document, and any person who has previously seen or was
`
`previously aware of the designated document, but only at a deposition, hearing or
`
`trial.
`
`(5) m. Experts retained by the parties or counsel for the parties to assist in the
`
`preparation and trial of this action or proceeding, but only if (a) such person is not a
`
`current employee of a party or of a party’s competitor, (b) at the time of retention,
`
`such person is not anticipated to become an employee of a party or of a party’s
`
`competitor, (c) disclosure to such person is reasonably necessary for this litigation;
`
`11
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`
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`Case 2:12—cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 12 of 33
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`PagelD 614
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`(d) after such persons have completed the certification contained in Attachment A,
`
`Acknowledgment of Understanding and Agreement to Be Bound; and (e) after the
`
`procedures set forth in paragraph 7(d) below, have been followed.
`
`(6)
`
`Others by Consent. Other persons only by written consent of the designating party
`
`or upon order of the Court and on such conditions as may be agreed or ordered. All
`
`such persons shall execute the certification contained in Attachment A,
`
`Acknowledgment of Understanding and Agreement to Be Bound.
`
`For the avoidance of doubt, a receiving party may not disclose or use another party’s
`
`CONFIDENTIAL, ATTORNEYS EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE
`
`CODE information in any other proceeding (including another state or federal lawsuit or
`
`administrative proceeding) without the express consent of the disclosing party.
`
`(c) Disclosure to Designated In-House Counsel. Up to three (3) designated in-house
`
`counsel responsible for the supervision of this action and any paralegals or clerical
`
`employees assisting them in the litigation may receive documents produced by
`
`Plaintiff that have been designated CONFIDENTIAL or ATTORNEYS EYES
`
`ONLY if disclosure is reasonably necessary for this litigation and they have
`
`completed the certification contained in Attachment A, Acknowledgment of
`
`Understanding and Agreement to Be Bound. In-house counsel for the Defendant
`
`and their paralegals and clerical employees under this paragraph (as well as any
`
`other employee of the Defendant) shall not have access to any CONFIDENTIAL or
`
`ATTORNEYS EYES ONLY documents produced by any other Defendant in the
`
`co-pending B.E. Technology matters unless otherwise ordered by the court or
`
`agreed to in writing by the designating party. Without written consent from the
`
`12
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`
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`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 13 of 33
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`PageID 615
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`designating party, no employee of any party may have access to any HIGHLY
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`CONFIDENTIAL - SOURCE CODE documents of another party designated under
`
`this Order.
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`(d) Disclosure to Experts. A receiving party shall not disclose or permit the disclosure of
`
`any documents designated CONFIDENTIAL, ATTORNEYS EYES ONLY or
`
`HIGHLY CONFIDENTIAL - SOURCE CODE to any Expert unless otherwise
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`ordered by the court or agreed to in writing by the designating party or as set forth
`
`below:
`
`(1)
`
`A party that seeks to disclose to an Expert any information or item that has been
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`designated CONFIDENTIAL, ATTORNEYS EYES ONLY or HIGHLY
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`CONFIDENTIAL - SOURCE CODE must first make a written request to the
`
`designating party that (1) identifies whether or not the receiving party seeks
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`permission to disclose HIGHLY CONFIDENTIAL - SOURCE CODE to the
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`Expert, (2) sets forth the full name of the Expert and the city and state of his or her
`
`primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies
`
`the Expert’s current employer(s) and employers over the last five years, (5)
`
`identifies all consulting work over the past five years (if such consulting work is
`
`confidential in nature such that the Expert is not permitted to disclose the
`
`engagement, the Expert must report a general description of the consulting
`
`engagement and the type of technology at issue), and (6) identifies (by name and
`
`number of the case, filing date, and location of court) any litigation in connection
`
`with which the Expert has offered expert testimony, including through a
`
`declaration, report, or testimony at a deposition or trial, during the preceding five
`
`13
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`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 14 of 33
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`PagelD 616
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`years, and (7) identifies any patents or patent applications in which the Expert is
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`identified as an inventor or applicant, is involved in prosecuting or maintaining, or
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`has any pecuniary interest (if the patents or patent applications are not publicly
`
`available, the Expert must provide a description of the field of technology they
`
`relate to).
`
`(2)
`
`A party that makes a request and provides the information specified in the
`
`preceding respective paragraphs may disclose the subject CONFIDENTIAL,
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`ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE
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`documents to the identified Expert unless, within 10 days of delivering the request,
`
`the party receives a written objection from the designating party. Any such
`
`objection must set forth in detail the grounds on which it is based.
`
`(3)
`
`A party that receives a timely written objection must meet and confer with the
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`designating party (through direct voice to voice dialogue) to try to resolve the
`
`matter by agreement within seven days of the written objection.
`
`(4)
`
`If no agreement is reached, the party objecting to the disclosure to the identified
`
`Expert may file a motion as provided in Civil Local Rule 7.2 seeking an order from
`
`the court to prevent such disclosure. Any such motion must describe the
`
`circumstances with specificity, set forth in detail the basis of the objection and the
`
`risk of harm that the disclosure would entail. In addition, any such motion must be
`
`accompanied by a competent declaration describing the parties’ efforts to resolve
`
`the matter by agreement (i.e., the extent and the content of the meet and confer
`
`discussions) and setting forth the reasons advanced by the designating party for its
`
`refusal to approve the disclosure. Any such motion must be filed within seven
`
`14
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`
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`Case 2:12-cv-02826-JPM-tmp Document 60 Filed 03/07/14 Page 15 of 33
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`PagelD 617
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`business days after the meet and confer provided for by section (3), or the
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`objections will be deemed withdrawn and the receiving party may disclose
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL —
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`SOURCE CODE documents to the expert.
`
`(d) Disclosure to Professional Vendors. To the extent necessary to prepare for a hearing
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`or trial, professional litigation support vendors, including copy, graphics, translation, database,
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`trial support and/or trial consulting services (“Professional Vendor”), may access
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`CONFIDENTIAL or ATTORNEYS EYES ONLY documents after completion of the
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`certification contained in Attachment A, Acknowledgment of Understanding and Agreement to Be
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`Bound.
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`(e) Mock Jurors. Mock jurors hired by trial consultants in connection with this litigation
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`may only be told about or shown CONFIDENTIAL or ATTORNEYS EYES ONLY documents
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`pro
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