Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 1 of 32 PageID #: 1169
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`VIRNETX, INC. and
`SCIENCE APPLICATIONS
`INTERNATIONAL CORPORATION,
`
`
`
`
`
`Civil Action No. 6:13-cv-351
`
`JURY TRIAL DEMANDED
`
`Defendant.
`
`
`
`
`AGREED PROTECTIVE ORDER
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`
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`
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`IT IS HEREBY AGREED by Plaintiffs VirnetX, Inc. (“VirnetX”) and Science
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`Applications International Corporation (“SAIC”) and Defendant Microsoft Corporation
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`(“Microsoft”), as follows:
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`The terms and conditions of this Protective Order shall govern the handling of
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`documents, answers to interrogatories, deposition testimony, pleadings, exhibits of any kind,
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`presentations, computer readable data storage media (including, but not limited to, source code),
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`the information contained or disclosed therein, schematics, any form of discovery contemplated
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`by Rules 26-37 and 45 of the Federal Rules of Civil Procedure and all other information or
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`things generated, produced, served or otherwise provided to a party, on the one hand, by any
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`other party or entity or person not a party to this action (“third party”) on the other (hereinafter
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`referred to as “Material”) in the above captioned action (the “Action”). For the purposes of this
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`Protective Order, the terms “document” and “documents” carry their broadest possible meaning
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`
`
`1
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`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`Plaintiffs,
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`
`
`vs.
`
`
`
`
`
`
`MICROSOFT CORPORATION
`
`VIRNETX EXHIBIT 2020
`RPX v. VirnetX
`Trial IPR 2014-00173
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`Page 1 of 32
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 2 of 32 PageID #: 1170
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`consistent with the Federal Rules of Civil Procedure and the Local Rules of the U.S. District
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`Court for the Eastern District of Texas.
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`In complying with discovery requests served pursuant to the Federal Rules of Civil
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`Procedure, any party or third party may designate any Material as “CONFIDENTIAL,”
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`“ATTORNEYS’ EYES ONLY,” or “OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
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`CODE.” Such Material shall be subject to the following restrictions:
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`A.
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`Definitions.
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`1.
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`2.
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`3.
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`4.
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`“Party”: any party to this Action, including all of its officers, directors, employees,
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`consultants, retained experts, and outside counsel (and their support staff).
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`“Designating Party”: any Party or third party to this Action that designates Material that
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`it or another party has produced or provided.
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`“Receiving Party”: any Party to this Action that receives Designated Material.
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`“CONFIDENTIAL” Material: information, documents, and things that have been so
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`designated by the Designating Party and includes non-public information that the
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`Designating Party: (i) has not revealed to any third party; or (ii) is protected by a right to
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`privacy under federal or state law, or any other applicable privilege or right related to
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`confidentiality or privacy.
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`5.
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`“ATTORNEYS’ EYES ONLY” Material: information, documents, and things that have
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`been so designated by the Designating Party and includes non-public information that is
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`extremely confidential and/or sensitive in nature and for which the Designating Party
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`reasonably believes that a mere CONFIDENTIAL designation would cause economic
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`harm or significant competitive disadvantage to the Designating Party. The following
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`information, if non-public, shall be presumed to merit the “ATTORNEYS’ EYES
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`-2-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 3 of 32 PageID #: 1171
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`ONLY” designation: trade secrets, pricing information, financial data, sales information,
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`sales or marketing forecasts or plans, business plans, sales or marketing strategy, product
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`development information, engineering documents, testing documents, strategic plans,
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`employee information, information disclosed under a non-disclosure agreement,
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`commercially sensitive competitive information that the producing party maintains as
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`highly confidential in its business, including information obtained from a non-party
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`pursuant to a current Nondisclosure Agreement, settlement agreements or settlement
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`communications, the disclosure of which is likely to cause harm to the competitive
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`position of the producing party, and other non-public information of similar competitive
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`and business sensitivity. This list is not exhaustive of all information that might merit the
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`“ATTORNEYS’ EYES ONLY” designation.
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`6.
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`“OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” Material: non-public
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`materials that have been so designated by the Designating Party, which includes human-
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`readable programming language text that defines software, or firmware. Files containing
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`source code shall hereinafter be referred to as “source code.” Software source code files
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`include, but are not limited to, files containing source code in “C”, “C+”, “C++”, BREW,
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`Java ME, J2ME, assembler, digital signal processor (DSP) programming languages, and
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`other human readable text programming languages. Software source code files further
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`include “include files,” “make” files, “link” files, and other human-readable text files
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`used in the generation and/or building of software directly executed on a microprocessor,
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`micro-controller, or DSP. OUTSIDE COUNSEL EYES ONLY SOURCE CODE shall
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`be subject to the restrictions provided in paragraph 24 herein.
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`-3-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 4 of 32 PageID #: 1172
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`7.
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`8.
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`“Designated Material”: Material that is designated “CONFIDENTIAL,” “ATTORNEYS’
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`EYES ONLY,” or “OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE.”
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`“Outside Counsel”: (i) outside counsel for a Party in this Action, (ii) partners, principals,
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`counsel, associates, employees and contract attorneys of such outside counsel to whom it
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`is reasonably necessary to disclose the information for this Action, including supporting
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`personnel employed by the attorneys, such as paralegals, legal translators, legal
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`secretaries, legal clerks and shorthand reporters, and/or (iii) independent legal translators
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`retained to translate in connection with this Action, or independent shorthand reporters
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`retained to record and transcribe testimony in connection with this Action.
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`9.
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`“Designated In-House Counsel”: attorneys who are employees of a Party to this action
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`and licensed to practice law in the United States.
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`10.
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`“Outside Consultant”: a person with specialized knowledge or experience in a matter
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`pertinent to this Action who has been retained by Outside Counsel to serve as an expert
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`witness or as a litigation consultant in this Action, and who is not a current employee of a
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`Party or of a competitor of a Party and who, at the time of retention, is not anticipated to
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`become an employee of, or a non-litigation consultant of: 1) a Party or 2) a competitor of
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`a Party.
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`11.
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`“Professional Vendors”: persons or entities that provide litigation support services (e.g.,
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`photocopying; videotaping; translating; designing and preparing exhibits, graphics, or
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`demonstrations; organizing, storing, retrieving data in any form or medium; etc.) and
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`their employees and subcontractors who have been retained by Outside Counsel in this
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`Action, and who are not current employees of a Party or of a competitor of a Party and
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`who, at the time of retention, are not anticipated to become employees of: 1) a Party or 2)
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`-4-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 5 of 32 PageID #: 1173
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`a competitor of a Party. This definition includes ESI vendors and professional jury or
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`trial consultants, including mock jurors, retained in connection with this Action and
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`others retained by such consultants to assist them in their work. Professional vendors do
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`not include consultants who fall within the definition of Outside Consultant.
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`12.
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`The following information is not “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,”
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`or “OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”:
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`a.
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`any information which, at the time of disclosure to a Receiving Party, is in
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`the public domain;
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`b.
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`any information which, after disclosure to a Receiving Party, becomes part
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`of the public domain as a result of publication not involving a violation of this Protective Order
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`or any violation of law or an agreement;
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`c.
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`any information which a Receiving Party can show was received by it,
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`whether before or after the disclosure, from a source who obtained the information lawfully and
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`under no obligation of confidentiality; and
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`d.
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`any information which a Receiving Party can show was independently
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`developed by it after the time of disclosure by personnel who have not had access to the
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`producing party’s “CONFIDENTIAL,” “ATTORNEYS’ EYES ONLY,” or “OUTSIDE
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`ATTORNEYS’ EYES ONLY - SOURCE CODE.”
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`B.
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`Scope
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`13.
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`The protections conferred by this Protective Order cover not only Designated Material (as
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`defined above), but also any information contained therein.
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`-5-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 6 of 32 PageID #: 1174
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`C.
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`Access To Designated Material
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`14.
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`Access to “OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” Material:
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`Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a
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`Receiving Party may disclose any information, document or thing designated “OUTSIDE
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`ATTORNEYS’ EYES ONLY – SOURCE CODE” only to:
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`a.
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`b.
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`Outside Counsel;
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`Subject to the requirements of Section D herein, Outside Consultants of
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`the Receiving Party to whom disclosure is reasonably necessary for this
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`Action, and who have signed the “Acknowledgement and Agreement To
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`Be Bound By Protective Order” attached hereto as Exhibit A;
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`c.
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`the Court, its technical advisor (if one is appointed), its mediator (if one is
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`appointed), persons employed by the Court, jurors, and court reporters or
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`videographers recording the testimony or argument at a hearing, trial, or
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`deposition in this action or any appeal therefrom.
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`15.
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`Access to “ATTORNEYS’ EYES ONLY” Material: Unless otherwise ordered by the
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`Court or permitted in writing by the Designating Party, a Receiving Party may disclose
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`any information, document, or thing designated “ATTORNEYS’ EYES ONLY” only to:
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`d.
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`Employees and/or officers of the Designating Party as well as persons who
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`appear on the face of Designated Material as an author, addressee, or
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`e.
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`f.
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`recipient thereof at a deposition, hearing, or trial;
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`Outside Counsel;
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`Subject to the requirements of Section D herein, Outside Consultants of
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`the Receiving Party to whom disclosure is reasonably necessary for this
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`-6-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 7 of 32 PageID #: 1175
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`Action, and who have signed the “Acknowledgement and Agreement To
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`Be Bound By Protective Order” attached hereto as Exhibit A;
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`g.
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`Subject to the requirements of paragraph 18 herein, three (3) Designated
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`In-House Counsel (including Outside Counsel who serves as Designated
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`In-House Counsel and does not serve as Outside Counsel in this action),
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`and two (2) in-house paralegals (including paralegals of the Outside
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`Counsel who serves as in-house counsel) of the Receiving Party with
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`responsibility for managing or evaluating this case, following
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`identification of each Designated In-House Counsel and/or paralegal to
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`each of the other parties;
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`h.
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`Any designated arbitrator, mediator, or technical advisor who is assigned
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`to hear this matter;
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`i.
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`the Court, persons employed by the Court, jurors, and court reporters or
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`videographers recording the testimony or argument at a hearing, trial or
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`deposition in this action or any appeal therefrom; and
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`j.
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`Professional Vendors.
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`16.
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`Access to “CONFIDENTIAL” Material: Unless otherwise ordered by the Court or
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`permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information, document, or thing designated “CONFIDENTIAL” only to persons
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`permitted to receive “ ATTORNEYS’ EYES ONLY” as well as one current employee of
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`the Receiving Party who has signed the “Acknowledgement and Agreement To Be
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`Bound By Protective Order” attached hereto as Exhibit A.
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`-7-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 8 of 32 PageID #: 1176
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`17.
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`No document designated by a Producing Party shall be disclosed by a Receiving Party to
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`An Outside Consultant until after the individual has signed the Confidentiality
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`Agreement appended hereto as Attachment A, stating that he or she has read and
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`understands this Protective Order and agrees to be bound by its terms. Such written
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`agreement shall be retained by the outside counsel of record for the Party that has
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`retained the consultant or expert, but need not be disclosed to any other party.
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`18.
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`Any Designated In-House Counsel or current employee that receives CONFIDENTIAL
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`or ATTORNEYS’ EYES ONLY material must first sign the Confidentiality Agreement,
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`in the form appended hereto as Attachment A, stating that he or she has read and
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`understands this Protective Order and agrees to be bound by its terms. Such written
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`agreement shall be retained by outside counsel of record for the Receiving Party, and a
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`copy of which shall be produced to the Producing Party within seven (7) calendar days
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`after execution.
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`19.
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`Prior to disclosure of any CONFIDENTIAL or ATTORNEYS’ EYES ONLY material to
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`any Professional Vendor, any such individual or an authorized representative of any such
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`entity must execute a written Confidentiality Agreement in the form appended hereto as
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`Attachment A. Such agreements shall be retained by the outside counsel of record
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`obtaining it, but need not be disclosed to any other party.
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`20.
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`Prior to disclosure of any Designated Material to any court reporters or videographers not
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`employed by the Court, any such individual or an authorized representative of any such
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`entity must execute a written Confidentiality Agreement in the form appended hereto as
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`Attachment A. Such agreements shall be retained by the outside counsel of record
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`obtaining it, but need not be disclosed to any other party.
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`-8-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 9 of 32 PageID #: 1177
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`D.
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`Access By Outside Consultants
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`21.
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`Notice. If a Receiving Party wishes to disclose a Designating Party’s Designated Material
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`to any Outside Consultant, such Receiving Party must provide notice to counsel for the
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`Designating Party, which notice shall include the curriculum vitae of such individual and
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`shall include the following information about such individual in the written notice:
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`business address; business title; business or profession; employers for the last four years;
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`any cases in which the person has testified in the last four years and the entity he or she
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`was retained by; any consulting work performed by the person in the last four years and
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`the entity he or she was retained by; any previous or current professional relationship
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`with any of the parties in the last four years; and a signed copy of the “Acknowledgement
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`and Agreement To Be Bound By Protective Order” attached as Exhibit A.
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`22.
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`Objections. A Designating Party shall have seven (7) business days from receipt of the
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`notice specified in this section to object for good cause in writing to such disclosure (plus
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`three (3) extra days if notice is given other than by hand delivery, e-mail delivery or
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`facsimile transmission The producing party objecting to disclosure of Designated
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`Material to the individual shall provide an explanation of the basis of its objection, and
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`consent to the disclosure of Designated Material to the individual shall not be
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`unreasonably withheld. No Designated Material shall be disclosed to such consultant or
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`expert until after the expiration of the foregoing notice period. After the expiration of the
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`7-day (plus 3-days, if appropriate) period, if no objection has been asserted, then
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`Designated Material may be disclosed to the Outside Consultant pursuant to the terms of
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`this Protective Order. Any objection by the Designating Party must set forth in detail the
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`“good cause” on which it is based.
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`-9-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 10 of 32 PageID #: 1178
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`23.
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`If a producing party objects to the disclosure of Designated Material to a consultant or
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`expert, the Receiving Party shall then have seven (7) business days after such objection is
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`served (plus three (3) business days if the objection is served other than by hand delivery,
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`e-mail transmission, or facsimile transmission) to respond to the objection. The
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`Producing Party shall then have seven (7) business days after such response is served
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`(plus three (3) business days if response is served other than by hand delivery, e-mail
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`transmission, or facsimile transmission) to file an objection with the Court and seek
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`disqualification of the consultant or expert or other appropriate relief, if the parties cannot
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`come to an agreement. If the Producing Party fails to file an objection within the
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`prescribed period (unless extended by the parties), then any objection to the disclosure of
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`Designated Material to the consultant or expert is waived, and any Designated Material
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`may be thereafter disclosed to such individual. Pending a ruling by the Court upon any
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`such objection(s), the discovery material shall not be disclosed to the person objected to
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`by the Designating Party.
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`E.
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`Production of ATTORNEYS’ EYES ONLY - SOURCE CODE Material
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`24.
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`To the extent that a Designating Party makes Source Code available for inspection:
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`a.
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`The Designating Party shall make all relevant Source Code available
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`electronically and in text searchable form in its native format and in a file
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`structure that mirrors the file structure of the Source Code as maintained
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`by the Designating Party. Source Code shall be made available for
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`inspection by a producing party on two “stand-alone” computers (that is,
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`not connected to a network, internet, or peripheral device except that the
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`stand-alone computers may be connected to a non-networked printer or
`
`-10-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 11 of 32 PageID #: 1179
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`printers) running the Windows 8 operating system. The parties will make
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`electronic source code available for inspection in computer searchable
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`format. Furthermore, each “stand-alone” computer shall have a copy of
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`Microsoft Visual Studio, Understand C, and grep installed thereon.
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`Persons inspecting electronic source code may use any search features that
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`are part of Microsoft Windows or Microsoft Visual Studio. The Source
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`Code may not be compiled by the Requesting Party.
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`b.
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`Should the Receiving Party make a request, other mutually agreed upon
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`tools may be used. Licensed copies of other mutually agreed upon tool
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`software shall be installed on the Source Code Computer by the
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`Designating Party
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`c.
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`The Producing Party will allow printing of paper copies of code at the
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`time of inspection by the Requesting Party. The Producing Party shall put
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`production numbers and the designation ATTORNEYS’ EYES ONLY -
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`SOURCE CODE on the printouts. After three (3) business days, two
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`copies of the printouts (i.e., the original printout and one additional copy
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`made by the Designating Party) shall be provided to the Receiving Party
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`via a reasonably quick and secure delivery method. The Receiving Party
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`shall print only a reasonable number of pages of code, and the Producing
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`Party may seek to modify the Protective Order to terminate or limit the
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`right to print if the Receiving Party attempts to print more than is
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`reasonable. Printouts must be kept under lock and key or secured
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`otherwise by a person who has entered an appearance as outside counsel
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`-11-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 12 of 32 PageID #: 1180
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`or been cleared as an expert. Paper copies may not be converted into
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`electronic format (including for emailing) EXCEPT as needed for filing
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`and service of papers, motions, and pleadings as required by the Court,
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`made under seal. Paper copies of code may not be removed from a
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`secured container unless in a secured, private area. Paper copies of code
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`may not themselves be copied by the Receiving Party, except that paper
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`copies of the source code may be copied and used as exhibits for a
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`deposition, expert report, motion, or trial, provided that such copies are
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`kept within a secure container during transport to and from deposition,
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`trial, or service, and are otherwise kept in a secure container at the offices
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`of outside counsel of record or at the office of an expert approved under
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`this Protective Order. Any printed source code filed with the Court shall
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`be filed under seal as provided in paragraph 32. Only those individuals
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`authorized and identified in paragraph 14 (i.e. outside counsel of record,
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`and identified experts/consultants, or the Court) shall be allowed to access
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`printed source code. At the time of its first expert reports, the Requesting
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`Party shall provide to the Producing Party a copy of all Bates numbered
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`pages of electronic source code received under this provision, regardless
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`of any other restrictions on expert discovery.
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`d.
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`Paper copies of Source Code must include Bates number and
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`confidentiality labels when printed, but the producing party shall not
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`undertake any effort to track or otherwise determine which pages of code
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`have been printed. The Designating Party may not videotape or otherwise
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`-12-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 13 of 32 PageID #: 1181
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`monitor review of code by the Receiving Party.
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`e.
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`The Designating Party must provide access to the Source Code Computer
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`under the same conditions and with the same limitations and restrictions as
`
`provided in this section at a site in Tyler, Texas beginning one week prior
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`to the start of trial and continuing through the end of trial. During this
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`time, the Source Code Computer shall be made available from 7:00 a.m. to
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`midnight (including during the weekend) on two hours’ notice.
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`f.
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`For Microsoft code, Source Code inspection shall take place at a secure
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`location within the offices of the Producing Party’s outside counsel of
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`record in Dallas, to be made available, if 24 hours’ notice is given once the
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`source code computers are set up, from 6 a.m. to midnight local time
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`Monday through Friday excluding holidays and from 9 a.m. to 6 p.m. local
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`time on Saturday and Sunday, excluding holidays. After the Dallas source
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`code computers are set up, if three business days’ notice is given,
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`Microsoft simultaneously will set up two stand-alone computers with
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`Microsoft source code for inspection at a secure location within one other
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`office of its outside counsel of record (e.g. Silicon Valley) from 6 a.m. to
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`midnight local time Monday through Friday excluding holidays and from
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`9 a.m. to 6 p.m. local time on Saturday and Sunday excluding holidays.
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`Once the stand-alone computers are set up, only 24 hours’ notice will be
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`required to review the code from 6 a.m. to midnight local time Monday
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`through Friday, excluding holidays and from 9 a.m. to 6 p.m. local time on
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`Saturday and Sunday, excluding holidays. For VirnetX and/or SAIC code,
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`-13-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 14 of 32 PageID #: 1182
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`the inspection shall take place at a secure location within the offices of the
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`Producing Party’s outside counsel of record in Dallas, Texas, to be made
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`available, if 24 hours’ notice is given once the source code computers are
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`set up, from 6 a.m. to midnight local time Monday through Friday,
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`excluding holidays and from 9 a.m. to 6 p.m. local time on Saturday and
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`Sunday, excluding holidays.
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`g.
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`The Requesting Party shall make its best efforts to restrict its access to
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`normal business hours.
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`h.
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`As an alternative, any Producing Party may, in its discretion, choose to
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`produce its source code on CD, DVD, or other storage media as
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`ATTORNEYS’ EYES ONLY - SOURCE CODE. The Receiving Party
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`may copy such produced source code from the medium to two, non-
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`networked, stand-alone computers which must be kept in a secure location
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`at the offices of the Receiving Parties’ outside counsel of record or at the
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`offices of an expert approved under this Protective Order. Such source
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`code must not be copied or transmitted, in whole or in part, to any
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`computer or location other than the two authorized stand-alone computers.
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`Whatever restrictions are imposed on the number of pages printed from
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`electronic source code that is inspected at the Producing Party’s outside
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`counsel of record’s offices shall also apply to produced source code.
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`i.
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`Only those persons identified in paragraph 14 may have access to the
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`ATTORNEYS’ EYES ONLY - SOURCE CODE. Under no condition
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`may any person disclose, in whole or in part, copies of, or the substance of,
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`-14-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 15 of 32 PageID #: 1183
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`the ATTORNEYS’ EYES ONLY - SOURCE CODE of the producing
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`party to any unauthorized person, including any officers, directors, in-
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`house counsel, former employees, employees, or non-litigation consultants
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`of the Receiving Party.
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`F.
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`PROSECUTION BAR
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`25.
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`Unless otherwise permitted in writing, any individual who personally reviews, other than
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`on behalf of a Designating Party, any ATTORNEYS’ EYES ONLY - SOURCE CODE
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`or ATTORNEYS’ EYES ONLY material shall not participate either directly or indirectly
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`(e.g., by advising) in the drafting or amending of any patent claims relating to the subject
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`matter of this lawsuit for VirnetX Inc., Microsoft Corporation, Science Applications
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`International Corporation, or any of their successors in interest, from the time of receipt
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`or review of such information through and including one (1) year following the entry of a
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`final non-appealable judgment or order or the complete settlement of all claims against
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`all parties in this action. For the avoidance of doubt, this bar does not apply to any
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`person to the extent they are challenging or responding to a challenge to a patent before a
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`foreign or domestic agency such as the Patent and Trademark Office (e.g., reexamination,
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`inter partes review) so long as they do not participate either directly or indirectly (e.g., by
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`advising) in the drafting or amending patent claims on behalf of the patent holder. This
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`bar only applies to the person reviewing the designated information and not to their entire
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`firm or company. Information designated CONFIDENTIAL, ATTORNEYS’ EYES
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`ONLY or ATTORNEYS’ EYES ONLY - SOURCE CODE may not be used, directly or
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`indirectly, in the prosecution of patents for entities other than the producing party.
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 16 of 32 PageID #: 1184
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`26.
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`Any Outside Counsel who reviews ATTORNEYS’ EYES ONLY or OUTSIDE
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`ATTORNEYS’ EYES ONLY - SOURCE CODE must enter a notice of appearance in the
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`case and be admitted pro hac vice in the case if not a member of the Bar of the Court
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`before review of materials subject to the prosecution bar.
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`27.
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`Any expert who reviews material protected by the prosecution bar must be submitted for
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`clearance in advance per the procedures in the Protective Order.
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`G.
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`Use Of Designated Material
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`28.
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`Use of Designated Material By Receiving Party. Unless otherwise ordered by the Court,
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`or agreed to in writing by a Designating Party, all Designated Material, and all
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`information derived therefrom, shall be used by the Receiving Party only for purposes of
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`litigation between the Parties in this Action. Designated Material shall not be used for
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`any business purpose, and shall not be disclosed to any person who is not entitled to
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`receive such information as herein provided.
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`29.
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`The Parties are permitted to cross-use in this case (after production in this case) any and
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`all documents and things produced in the following prior VirnetX matters before this
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`Court: Case No. 6:07-CV-80; Case No. 6:10-CV-94. Each Party may also obtain,
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`subject to treatment as designated, all designated materials in the possession of prior
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`counsel for such Party in any of the above listed VirnetX matters. The term “documents”
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`as used in this paragraph 29 includes, but is not limited to, correspondence, memoranda,
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`notes, pleadings, motions, trial briefs (including all supporting and opposing papers and
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`exhibits thereto), written discovery requests and responses (and exhibits thereto),
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`deposition transcripts (and exhibits thereto), trial transcripts, and exhibits offered or
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`-16-
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 17 of 32 PageID #: 1185
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`introduced into evidence at trial. Nothing in the paragraph is a waiver of any objections
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`to the production, admissibility or relevance of documents subject to this paragraph.
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`30.
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`Information contained or reflected in Designated Material can be disclosed in any hearing
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`or at trial in this case, and in that event, it is the obligation of the Designating Party to
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`make an appropriate, timely motion to seal the hearing or trial. Outside Counsel for the
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`Designating and Receiving Parties may disclose information contained or reflected in
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`Designated Material to each other, but this disclosure does not waive any confidentiality
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`and cannot serve as the grounds for challenging the confidentiality designation of such
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`information.
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`31.
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`Except as may be otherwise ordered by the Court, any person may be examined as a
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`witness at depositions, hearings and trial and may testify concerning all Designated
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`Material of which such person has prior knowledge as set forth below:
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`a. A present director, officer, and/or employee of a Producing
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`Party may be examined at deposition and may testify concerning all
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`Designated Material which has been produced by that Party;
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`b. A former director, officer, and/or employee of a Producing
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`Party may be examined at deposition and may testify concerning all
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`Designated Material of the Producing Party that established on its face or is
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`established from other documents or testimony to have been previously
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`received from or communicated to that person and of which he or she has
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`prior knowledge, including any Designated Material that refers to matters of
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`which the witness has personal knowledge, has been produced by that Party,
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`and pertains to the period or periods of his or her employment; and
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`Case 6:13-cv-00351-LED Document 46 Filed 08/29/13 Page 18 of 32 PageID #: 1186
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`c. Non-parties may be examined during deposition or testify
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`concerning any document containing Designated Material of a Producing
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`Party that appears on its face or from other documents or testimony to have
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`been received from or communicated to the non-party as a result of any
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`contact or relationship with the Producing Party, or a representative of such
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`Producing Party. Any person other than the witness, his or her attorney(s),
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`and any person qualified to receive Designated Material under this Protective
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`Order shall be excluded from the portion of the examination concerning such
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`information, unless the Producing Party consents to persons other than
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`qualified recipients being present at the examination.
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`d. If a witness under sections (b) and (c) above is represented
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`by an attorney who is not qualified under this Protective Order to receive
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`Designated Material, then prior to the examination, the attorney shall be
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`requested to provide a Confidentiality Agreement, in the form of Attachment
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`A hereto, that he or she will comply with the terms of this Protective Order
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`and maintain the confidentiality of Designated Material disclosed during the
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`course of the examination. In the event