`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
`
`
`
`
`
`
`VIRNETX INC., et al.,
`
`
`
`
`
`Plaintiffs,
`
`v.
`
`APPLE INC.,
`
`
`
`
`
`
`
`Defendant.
`
`
`
`
`
`
`
`Civil Action Nos. 6:11-cv-563
` 6:12-cv-855
`
`
`
`JURY TRIAL DEMANDED
`
`§§
`
`
`§
`§
`§
`§
`§
`§
`§
`
`
`AGREED PROTECTIVE ORDER
`REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS
`
`Plaintiff VirnetX Inc. (“VirnetX”), Plaintiff Science Applications International
`
`Corporation (“SAIC”) (VirnetX and SAIC collectively, “Plaintiffs”), and Defendant Apple Inc.
`
`(“Apple”) anticipate that documents, testimony, or information containing or reflecting
`
`confidential, proprietary, trade secret, and/or commercially sensitive information are likely to
`
`be disclosed or produced during the course of discovery, initial disclosures, and supplemental
`
`disclosures in this case and request that the Court enter this Order setting forth the conditions
`
`for treating, obtaining, and using such information.
`
`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
`
`good cause for the following Agreed Protective Order Regarding the Disclosure and Use of
`
`Discovery Materials (“Order” or “Protective Order”).
`
`1.
`
`DEFINITIONS
`
`(a)
`
`“Discovery Material” means all items or information, including from any
`
`non-party, regardless of the medium or manner generated, stored, or maintained (including, among
`
`other things, testimony adduced at deposition upon oral examination or upon written questions,
`
`AGREED PROTECTIVE ORDER
`
`
`
`
`PAGE 1
`
`VIRNETX EXHIBIT 2021
`RPX v. VirnetX
`Trial IPR 2014-00171
`
`Page 1 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 2 of 36 PageID #: 1231
`
`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) that are produced, disclosed, or generated in connection with
`
`discovery or Rule 26(a) disclosures in this case.
`
`(b)
`
`“Outside Counsel” means (i) outside counsel who appear on the pleadings as
`
`counsel for a Party, (ii) partners and associates of such counsel to whom it is reasonably necessary
`
`to disclose the information for this litigation, and (iii) outside, independent attorneys contracted to
`
`provide legal advice to a Party in connection with this action.
`
`(c)
`
`“Patents-in-suit” means U.S. Patent Nos. 6,502,135, 7,418,504, 7,490,151,
`
`7,921,211, and 8,051,181 and any other patent asserted in this action, as well as any related patents,
`
`patent applications, provisional patent applications, continuations, and/or divisionals.
`
`(d)
`
` “Party” means any party to this case, including all of its officers, directors,
`
`employees, consultants, retained experts, and outside counsel and their support staffs.
`
`(e)
`
`“Producing Party” means any Party or non-party entity that discloses or
`
`produces any Discovery Material in this case.
`
`(f)
`
`“Protected Material” means any Discovery Material that is designated as
`
`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL -
`
`OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” as provided for in this Order.
`
`Protected Material shall not include: (i) advertising materials that have been actually published or
`
`publicly disseminated; (ii) materials that show on their face they have been disseminated to the
`
`public; (iii) information that the Receiving Party can show was lawfully in the Receiving Party’s
`
`possession prior to being designated as Protected Material in this litigation and that the Receiving
`
`Party is not otherwise obligated to treat as confidential; (iv) information that the Receiving Party
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 2
`
`Page 2 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 3 of 36 PageID #: 1232
`
`can show was obtained (without any benefit or use of Protected Material) from a third party having
`
`the right to disclose such information to the Receiving Party without restriction or obligation of
`
`confidentiality; (v) information that was submitted to a governmental entity without request for
`
`confidential treatment.
`
`(g)
`
`“Receiving Party” means any Party who receives Discovery Material from a
`
`Producing Party.
`
`(h)
`
` “Source Code” means computer code, scripts, assembly, object code, source
`
`code listings, comments for source code, source code revision histories, and descriptions of source
`
`code, object code listings, comments for object code, object code revision histories, and
`
`descriptions of object code, Hardware Description Language (HDL) or Register Transfer Level
`
`(RTL) files that describe the hardware design of any ASIC or other chip, and other electronic files
`
`used in network operations, comments for network operation files, and network operation revision
`
`histories.
`
`(i)
`
` “Competitive decision-making” means
`
`that a person’s activities,
`
`association, or relationship with any of its clients involve advice about or participation in the
`
`relevant business decisions or the analysis underlying the relevant business decisions of the client
`
`in competition with or a business relationship with the Producing Party.
`
`2.
`
`
`
`
`
`COMPUTATION OF TIME
`
`The computation of any period of time prescribed or allowed by this Order shall be
`
`governed by the provisions for computing time set forth in Federal Rules of Civil Procedure 6 and
`
`the Eastern District of Texas Local Rule CV-6.
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 3
`
`Page 3 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 4 of 36 PageID #: 1233
`
`3.
`
`SCOPE
`
`(a)
`
`The protections conferred by this Order cover not only Discovery Material
`
`governed by this Order as addressed herein, but also any information copied or extracted therefrom,
`
`as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations,
`
`or presentations by Parties or their counsel in court or in other settings that might reveal Protected
`
`Material.
`
`(b)
`
`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
`
`own disclosure or use of its own Discovery Material for any purpose.
`
`(c)
`
`This Order is without prejudice to the right of any Party to seek further or
`
`additional protection of any Discovery Material or to modify this Order in any way, including,
`
`without limitation, an order that certain matter not be produced at all.
`
`4.
`
`
`
`DURATION
`
`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. Even
`
`after the termination of this case, the confidentiality obligations imposed by this Order shall remain
`
`in effect until a Producing Party agrees otherwise in writing or a court order otherwise directs.
`
`5.
`
`ACCESS TO AND USE OF PROTECTED MATERIAL
`
`(a)
`
` Basic Principles. All Protected Material shall be used solely for this case or
`
`any related appellate proceeding, and not for any other purpose whatsoever, including without
`
`limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue
`
`proceedings, or any business or competitive purpose or function. Notwithstanding the foregoing,
`
`Protected Material from this action may be used in VirnetX, Inc. v. Apple Inc., United States
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 4
`
`Page 4 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 5 of 36 PageID #: 1234
`
`District Court for the Eastern District of Texas, Case No. 6:13-cv-211. Protected Material shall not
`
`be distributed, disclosed or made available to anyone except as expressly provided in this Order.
`
`(b)
`
`Patent Prosecution Bar. Absent the written consent of the Producing Party,
`
`anyone who receives, obtains, has access to, or otherwise learns, in whole or in part, technical
`
`information designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL
`
`– ATTORNEYS’ EYES ONLY – SOURCE CODE” shall not be involved, directly or indirectly, in
`
`any of the following activities: advising on, consulting on, preparing, prosecuting, drafting, editing,
`
`and/or amending of patent applications, specifications, claims, and/or responses to office actions, or
`
`otherwise affecting the disclosure in patent applications or specifications or the scope of claims in
`
`patents or patent applications relating to the subject matter of the Patents-in-suit, including, but not
`
`limited to, the functionality, operation, and design of encrypted channels, including Virtual Private
`
`Networks (“VPN”) (generally or as described in any patent in suit) or DNS services, before any
`
`foreign or domestic agency,
`
`including
`
`the United States Patent and Trademark
`
`Office. Notwithstanding the forgoing, these prohibitions are not intended to and shall not preclude
`
`counsel from participating in any reexamination or interpartes review proceedings involving the
`
`Patents-in-suit except that Plaintiffs’ counsel shall not draft or assist in the drafting of any claim or
`
`amendment to any claim of the Patents-in-suit for a period ending one year after the resolution of
`
`this litigation (including any appeals). These prohibitions shall begin when access to
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY – SOURCE CODE” materials are first received by the affected individual, and shall
`
`end one (1) year after the final resolution of this action, including all appeals.
`
`(c)
`
`Secure Storage. Protected Material must be stored and maintained by a
`
`Receiving Party in a secure manner that ensures that access is limited to the persons authorized
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 5
`
`Page 5 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 6 of 36 PageID #: 1235
`
`under this Order. The Receiving Party shall exercise at least the same degree of care in handling
`
`the Protected Material from the Producing Party that it would with its own Protected Material and
`
`to confidential information of a similar nature.
`
`(d)
`
`Legal Advice Based on Protected Material. Nothing in this Protective Order
`
`shall be construed to prevent counsel from advising their clients with respect to this case based in
`
`whole or in part upon Protected Materials, provided counsel does not disclose the Protected
`
`Material itself except as provided in this Order.
`
`(e)
`
`Limitations. Nothing in this Order shall restrict in any way a Producing
`
`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
`
`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
`
`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
`
`to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
`
`and/or provided by the Producing Party to the Receiving Party or a non-party without an
`
`obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
`
`Producing Party; or (v) pursuant to Order of the Court.
`
`(f)
`
`Prior Discovery by the Parties. The Parties have been involved in prior
`
`actions, including VirnetX Inc., et al. v. Cisco Systems, Inc., et al., United States District Court for
`
`the Eastern District of Texas, Civil Action No. 6:10-cv-417, VirnetX Inc., v. Apple Inc., United
`
`States District Court for the Eastern District of Texas, Civil Action No. 6:13-cv-211, and ITC
`
`Investigation Nos. 337-TA-818 and 337-TA-858 (“Prior Actions”). A Party may designate in
`
`writing that prior discovery provided by that Party from Prior Actions is deemed produced in this
`
`lawsuit and subject to the terms of this Protective Order. Such prior discovery may include
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 6
`
`Page 6 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 7 of 36 PageID #: 1236
`
`document productions, source code, written discovery responses, depositions, and deposition
`
`exhibits.
`
`(g)
`
`Secure Storage, No Export. Protected Material must be stored and
`
`maintained by a Receiving Party at a location in the United States and in a secure manner that
`
`ensures that access is limited to the persons authorized under this Order. To ensure compliance
`
`with applicable United States Export Administration Regulations, Protected Material may not be
`
`exported outside the United States or released to any foreign national (even if within the United
`
`States).
`
`6.
`
`DESIGNATING PROTECTED MATERIAL
`
`(a)
`
`Available Designations. Any Producing Party may designate Discovery
`
`Material with any of the following designations, provided that it meets the requirements for such
`
`designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
`
`EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
`
`CODE.”
`
`(b) Written Discovery and Documents and Tangible Things. Written discovery,
`
`documents (which include “electronically stored information,” as that phrase is used in Federal
`
`Rule of Procedure 34), and tangible things that meet the requirements for the confidentiality
`
`designations listed in Paragraph 6(a) may be so designated by placing the appropriate designation
`
`on every page of the written material prior to production. For digital files being produced, the
`
`Producing Party may mark each viewable page or image with the appropriate designation, and
`
`mark the medium, container, and/or communication in which the digital files were contained. In
`
`the event that original documents are produced for inspection, the original documents shall be
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 7
`
`Page 7 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 8 of 36 PageID #: 1237
`
`presumed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” during the inspection and re-
`
`designated, as appropriate during the copying process.
`
`(c)
`
`Depositions and Testimony. Parties or testifying persons or entities may
`
`designate depositions and other testimony with the appropriate designation by indicating on the
`
`record at the time the testimony is given. Alternatively, the producing party may designate testimony
`
`or information disclosed at the deposition by notifying all parties in writing within fourteen (14) days
`
`after the producing party’s receipt of the transcript, of the specific pages and lines of the transcript
`
`that contain Protected Material. If no indication on the record is made, all information disclosed
`
`during a deposition shall be deemed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the
`
`time within which it may be appropriately designated as provided for herein has passed. Any Party
`
`that wishes to disclose the transcript, or information contained therein, may provide written notice
`
`of its intent to treat the transcript as non-confidential, after which time, any Party that wants to
`
`maintain any portion of the transcript as confidential must designate the confidential portions
`
`within fourteen (14) days, or else the transcript may be treated as non-confidential. Any Protected
`
`Material that is used in the taking of a deposition shall remain subject to the provisions of this
`
`Protective Order, along with the transcript pages of the deposition testimony dealing with such
`
`Protected Material. In such cases the court reporter shall be informed of this Protective Order and
`
`shall be required to operate in a manner consistent with this Protective Order. In the event the
`
`deposition is videotaped, the original and all copies of the videotape shall be marked by the video
`
`technician to indicate that the contents of the videotape are subject to this Protective Order,
`
`substantially along the lines of “This videotape contains confidential testimony used in this case
`
`and is not to be viewed or the contents thereof to be displayed or revealed except pursuant to
`
`the terms of the operative Protective Order in this matter or pursuant to written stipulation of
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 8
`
`Page 8 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 9 of 36 PageID #: 1238
`
`the parties.” Counsel for any Producing Party shall have the right to exclude from oral
`
`depositions, other than the deponent, deponent’s counsel, the reporter and videographer (if
`
`any), any person who is not authorized by this Protective Order to receive or access Protected
`
`Material based on the designation of such Protected Material. Such right of exclusion shall be
`
`applicable only during periods of examination or testimony regarding such Protected Material.
`
`7.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
`
`(a)
`
`A Producing Party may designate Discovery Material as “CONFIDENTIAL”
`
`if it contains or reflects confidential, proprietary, and/or commercially sensitive information.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL” may be disclosed only to the following:
`
`(i)
`
`The Receiving Party’s Outside Counsel;
`
`(ii) Outside Counsel’s paralegals and staff, and any copying or clerical
`
`litigation support services working at the direction of such counsel, paralegals, and staff;
`
`(iii) Not more than three (3) representatives of the Receiving Party who
`
`are officers or employees of the Receiving Party and who are not involved in competitive decision-
`
`making, who may be, but need not be, in-house counsel for the Receiving Party, as well as their
`
`immediate paralegals and staff, to whom disclosure is reasonably necessary for this case, provided
`
`that: (a) each such person has agreed to be bound by the provisions of the Protective Order by
`
`signing a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist after
`
`proper notice has been given to all Parties as set forth in Paragraph 12 below;
`
`(iv) Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 9
`
`Page 9 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 10 of 36 PageID #: 1239
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party or a competitor of a Party, nor anticipated at the time of
`
`retention to become an officer, director or employee of a Party or a competitor of a Party; (c) such
`
`expert or consultant accesses the materials in the United States only, and does not transport them to
`
`or access them from any foreign jurisdiction, and (d) no unresolved objections to such disclosure
`
`exist after proper notice has been given to all Parties as set forth in Paragraph 12 below;
`
`(v)
`
`Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(vi)
`
`The Court, jury, and court personnel;
`
`(vii) Graphics, translation, design, and/or trial consulting services, having
`
`first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit
`
`A;
`
`(viii) Mock jurors who have signed an undertaking or agreement agreeing
`
`not to publicly disclose Protected Material and to keep any information concerning Protected
`
`Material confidential;
`
`Paragraph 11, below.
`
`(ix) At a deposition or at trial, any person who falls within the scope of
`
`(x)
`
`Any mediator who is assigned to hear this matter, and his or her staff,
`
`subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`Party.
`
`(xi) Any other person with the prior written consent of the Producing
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 10
`
`Page 10 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 11 of 36 PageID #: 1240
`
`8.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY”
`
`
`
`
`(a)
`
`A Producing Party may designate Discovery Material as “CONFIDENTIAL
`
`– ATTORNEYS’ EYES ONLY”1 if it contains or reflects information that is extremely
`
`confidential and/or sensitive in nature and the Producing Party reasonably believes that the
`
`disclosure of such Discovery Material is likely to cause economic harm or significant competitive
`
`disadvantage to the Producing Party. The Parties agree that the following information, if non-
`
`public, shall be presumed to merit the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`
`designation: trade secrets, pricing information, financial data, sales information, sales or marketing
`
`forecasts or plans, business plans, sales or marketing strategy, product development information,
`
`engineering documents,
`
`testing documents, employee
`
`information, and other non-public
`
`information of similar competitive and business sensitivity.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:
`
`(i)
`
`The Receiving Party’s Outside Counsel;
`
`(ii) Outside Counsel’s paralegals and staff, and any copying or clerical
`
`litigation support services working at the direction of such counsel, paralegals, and staff;
`
`(iii) Regarding documents produced by a Plaintiff, not more than three (3)
`
`in-house counsel who are responsible for supervising this action and who are not involved in
`
`competitive decision-making, as well as their immediate paralegals and staff to whom disclosure is
`
`reasonably necessary for this case, provided that: (a) each such person has agreed to be bound by
`
`the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved
`
`
`1
`The terms “CONFIDENTIAL - ATTORNEY’S EYES ONLY” and “HIGHLY
`CONFIDENTIAL” shall have the same meaning under this Protective Order.
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 11
`
`Page 11 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 12 of 36 PageID #: 1241
`
`objections to such disclosure exist after proper notice has been given to all Parties as set forth
`
`in Paragraph 12 below;
`
`(iv) Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party or a competitor of a Party, nor anticipated at the time of
`
`retention to become an officer, director, or employee of a Party or a competitor of a Party; (c) such
`
`expert or consultant is not involved in competitive decision-making on behalf of a Party; (d) such
`
`expert or consultant accesses the materials in the United States only, and does not transport them to
`
`or access them from any foreign jurisdiction, and (e) no unresolved objections to such disclosure
`
`exist after proper notice has been given to all Parties as set forth in Paragraph 12 below;
`
`(v)
`
`Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(vi)
`
`The Court, jury, and court personnel;
`
`(vii) Graphics, translation, design, and/or trial consulting services, having
`
`first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit
`
`A;
`
`paragraph 11, below;
`
`(viii) At a deposition or at trial, any person who falls within the scope of
`
`(ix) Any mediator who is assigned to hear this matter, and his or her staff,
`
`subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 12
`
`Page 12 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 13 of 36 PageID #: 1242
`
`(x)
`
`Any other person with the prior written consent of the Producing
`
`Party.
`
`9.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”
`
`(a)
`
`To the extent production of Source Code becomes necessary to the
`
`prosecution or defense of the case, a Producing Party may designate Source Code as
`
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” if it comprises
`
`or includes confidential, proprietary, and/or trade secret Source Code.
`
`(b)
`
`Nothing in this Order shall be construed as a representation or admission that
`
`Source Code is properly discoverable in this action, or to obligate any Party to produce any Source
`
`Code.
`
`(c)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be subject
`
`to the provisions set forth in Paragraph 10 below, and may be disclosed, subject to Paragraph 10
`
`below, solely to:
`
`(i)
`
`The Receiving Party’s Outside Counsel;
`
`(ii) Outside Counsel’s paralegals and staff, and any copying or clerical
`
`litigation support services working at the direction of such counsel, paralegals, and staff;
`
`(iii) Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party, nor anticipated at the time of retention to become an
`
`officer, director or employee of a Party; (c) such expert or consultant is not involved in competitive
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 13
`
`Page 13 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 14 of 36 PageID #: 1243
`
`decision-making on behalf of a Party; and (d) no unresolved objections to such disclosure exist
`
`after proper notice has been given to all Parties as set forth in Paragraph 12 below;
`
`(iv) Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(v)
`
`The Court, jury, and court personnel;
`
`(vi) Graphics, translation, design, and/or trial consulting services, having
`
`first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit
`
`A;
`
`paragraph 11, below;
`
`(vii) At a deposition or at trial, any person who falls within the scope of
`
`(viii) Any mediator who is assigned to hear this matter, and his or her staff,
`
`subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`Party.
`
`(ix) Any other person with the prior written consent of the Producing
`
`10. DISCLOSURE AND REVIEW OF SOURCE CODE
`
`(a)
`
`Any Source Code that is produced by VirnetX shall be made available for
`
`inspection in electronic format at the Dallas office of its outside counsel, Caldwell Cassady Curry
`
`P.C., or any other location mutually agreed by the Parties. Any Source Code that is produced by
`
`Apple Inc. will be made available for inspection at the Houston office of its outside counsel,
`
`Williams, Morgan, & Amerson, PC, or any other location mutually agreed by the Plaintiffs and
`
`Apple. Any Source Code that is produced by SAIC will be made available for inspection at the
`
`Los Angeles office of its outside counsel, Urabazzo Law P.C., or any other location mutually
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 14
`
`Page 14 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 15 of 36 PageID #: 1244
`
`agreed by the SAIC and Apple. Source Code will be made available for inspection between the
`
`hours of 8 a.m. and 8 p.m. Monday through Friday (excluding holidays) and from 9 a.m. to 6 p.m.
`
`on Saturday and Sunday (excluding holidays). The requesting party shall make its best efforts to
`
`restrict its access to normal business hours.2 As an alternative, a Plaintiff may opt to produce its
`
`source code on CD, DVD or other storage media as “CONFIDENTIAL – OUTSIDE
`
`ATTORNEYS’ EYES ONLY - SOURCE CODE.” Defendant may copy such produced source
`
`code of Plaintiff from the medium to two secured computers without Internet access or network
`
`access to other computers which must be kept in a secure location at the offices of the receiving
`
`parties’ Outside Counsel. One week prior to the beginning of trial and continuing through the end
`
`of trial, each Producing Party shall make its source code available for inspection at a location in
`
`Tyler, Texas. The Producing Party shall make the source code available in its native format and
`
`with the same tools and file structure which the source code had when originally produced in this
`
`matter.
`
`(b)
`
`Prior to the first inspection of any requested Source Code, the Receiving
`
`Party shall provide twenty (20) days notice of the Source Code that it wishes to inspect. The
`
`Receiving Party shall provide twenty four (24) hours notice prior to any additional inspections.
`
`One week prior to the beginning of trial and continuing through the end of trial, the Receiving Party
`
`only need provide three (3) hours notice for the inspection of source code.
`
`(c)
`
`Source Code
`
`that
`
`is designated “CONFIDENTIAL – OUTSIDE
`
`ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be produced for inspection and review
`
`subject to the following provisions, unless otherwise agreed by the Producing Party:
`
`
`2 After a Producing Party has received three (3) requests by a requesting Party to inspect Source Code outside of
`normal business hours, the Producing Party may refuse further inspections, except for during normal business hours.
`However, the Producing Party and requesting party will work in good faith to provide reasonable hours of access to
`Source Code.
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 15
`
`Page 15 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 16 of 36 PageID #: 1245
`
`(i)
`
`All Source Code shall be made available by the Producing Party to
`
`the Receiving Party’s outside counsel and/or experts in a secure room on two secured computers
`
`without Internet access or network access to other computers, as necessary and appropriate to
`
`prevent and protect against any unauthorized copying, transmission, removal or other transfer of
`
`any Source Code outside or away from the computer on which the Source Code is provided for
`
`inspection (the “Source Code Computer” in the “Source Code Review Room”). The Producing
`
`Party shall install tools that are sufficient for viewing and searching the code produced, on the
`
`platform produced, if such tools exist and are presently used in the ordinary course of the
`
`Producing Party’s business. If requested by the Receiving Party, the producing party shall install
`
`tools reasonably necessary to review the source code on the Source Code Computers including, but
`
`not limited to: Grep, Understand C, Visual Slick Edit, Source-Navigator, PowerGrep and/or
`
`ExamDiff Pro. If the Producing Party does not possess an appropriate license to any such software
`
`tools, the Requesting Party may provide the Producing Party with a licensed copy of such software
`
`tools, and the Producing Party shall install such software tools on the source code computers. The
`
`Receiving Party must provide the Producing Party with the CD or DVD containing such licensed
`
`software tool(s) at least fourteen (14) days in advance of the date upon which the Receiving Party
`
`wishes to have the additional software tools available for use on the Source Code Computers.
`
`(ii)
`
`No recordable media or recordable devices, including without
`
`limitation sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
`
`DVDs, or drives of any kind, shall be permitted into the Source Code Review Room. The
`
`Producing Party will provide the Receiving Party with a secure location near the source code room
`
`to store their cellular telephones etc. and to make phone calls.
`
`AGREED PROTECTIVE ORDER
`
`
`
`PAGE 16
`
`Page 16 of 36
`
`
`
`Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 17 of 36 PageID #: 1246
`
`(iii) The Receiving Party’s outside counsel and/or experts shall be entitled
`
`to take notes relating to the Source Code but may not copy the Source Code into the notes and may
`
`not take such notes electronically on