Case 6:12-cv-00855-LED Document 55 Filed 06/24/13 Page 1 of 36 PageID #: 1230
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TYLER DIVISION
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`
`
`
`AGREED PROTECTIVE ORDER
`REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS
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`Plaintiff VirnetX Inc. (“VirnetX”), Plaintiff Science Applications International
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`Corporation (“SAIC”) (VirnetX and SAIC collectively, “Plaintiffs”), and Defendant Apple Inc.
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`(“Apple”) anticipate that documents, testimony, or information containing or reflecting
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`confidential, proprietary, trade secret, and/or commercially sensitive information are likely to
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`be disclosed or produced during the course of discovery, initial disclosures, and supplemental
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`disclosures in this case and request that the Court enter this Order setting forth the conditions
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`for treating, obtaining, and using such information.
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`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
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`good cause for the following Agreed Protective Order Regarding the Disclosure and Use of
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`Discovery Materials (“Order” or “Protective Order”).
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`1.
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`DEFINITIONS
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`(a)
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`“Discovery Material” means all items or information, including from any
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`non-party, regardless of the medium or manner generated, stored, or maintained (including, among
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`other things, testimony adduced at deposition upon oral examination or upon written questions,
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`AGREED PROTECTIVE ORDER
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`PAGE 1
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`Civil Action Nos. 6:11-cv-563
` 6:12-cv-855
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`
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`JURY TRIAL DEMANDED
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`§§
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`§
`§
`§
`§
`§
`§
`§
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`VIRNETX INC., et al.,
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`v.
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`
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`Plaintiffs,
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`APPLE INC.,
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`
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`
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`Defendant.
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`VIRNETX EXHIBIT 2021
`RPX v. VirnetX
`Trial IPR 2014-00173
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`Page 1 of 36
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`answers to interrogatories, documents and things produced, information obtained from inspection
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`of premises or things, and answers to requests for admission, or information disclosed pursuant to
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`subpoena under Fed. R. Civ. P. 45) that are produced, disclosed, or generated in connection with
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`discovery or Rule 26(a) disclosures in this case.
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`(b)
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`“Outside Counsel” means (i) outside counsel who appear on the pleadings as
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`counsel for a Party, (ii) partners and associates of such counsel to whom it is reasonably necessary
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`to disclose the information for this litigation, and (iii) outside, independent attorneys contracted to
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`provide legal advice to a Party in connection with this action.
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`(c)
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`“Patents-in-suit” means U.S. Patent Nos. 6,502,135, 7,418,504, 7,490,151,
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`7,921,211, and 8,051,181 and any other patent asserted in this action, as well as any related patents,
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`patent applications, provisional patent applications, continuations, and/or divisionals.
`
`(d)
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` “Party” means any party to this case, including all of its officers, directors,
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`employees, consultants, retained experts, and outside counsel and their support staffs.
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`(e)
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`“Producing Party” means any Party or non-party entity that discloses or
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`produces any Discovery Material in this case.
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`(f)
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`“Protected Material” means any Discovery Material that is designated as
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`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL -
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`OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” as provided for in this Order.
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`Protected Material shall not include: (i) advertising materials that have been actually published or
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`publicly disseminated; (ii) materials that show on their face they have been disseminated to the
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`public; (iii) information that the Receiving Party can show was lawfully in the Receiving Party’s
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`possession prior to being designated as Protected Material in this litigation and that the Receiving
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`Party is not otherwise obligated to treat as confidential; (iv) information that the Receiving Party
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`AGREED PROTECTIVE ORDER
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`can show was obtained (without any benefit or use of Protected Material) from a third party having
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`the right to disclose such information to the Receiving Party without restriction or obligation of
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`confidentiality; (v) information that was submitted to a governmental entity without request for
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`confidential treatment.
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`(g)
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`“Receiving Party” means any Party who receives Discovery Material from a
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`Producing Party.
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`(h)
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` “Source Code” means computer code, scripts, assembly, object code, source
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`code listings, comments for source code, source code revision histories, and descriptions of source
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`code, object code listings, comments for object code, object code revision histories, and
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`descriptions of object code, Hardware Description Language (HDL) or Register Transfer Level
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`(RTL) files that describe the hardware design of any ASIC or other chip, and other electronic files
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`used in network operations, comments for network operation files, and network operation revision
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`histories.
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`(i)
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` “Competitive decision-making” means
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`that a person’s activities,
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`association, or relationship with any of its clients involve advice about or participation in the
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`relevant business decisions or the analysis underlying the relevant business decisions of the client
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`in competition with or a business relationship with the Producing Party.
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`2.
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`
`
`
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`COMPUTATION OF TIME
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`The computation of any period of time prescribed or allowed by this Order shall be
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`governed by the provisions for computing time set forth in Federal Rules of Civil Procedure 6 and
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`the Eastern District of Texas Local Rule CV-6.
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`AGREED PROTECTIVE ORDER
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`3.
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`SCOPE
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`(a)
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`The protections conferred by this Order cover not only Discovery Material
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`governed by this Order as addressed herein, but also any information copied or extracted therefrom,
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`as well as all copies, excerpts, summaries, or compilations thereof, plus testimony, conversations,
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`or presentations by Parties or their counsel in court or in other settings that might reveal Protected
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`Material.
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`(b)
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`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
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`own disclosure or use of its own Discovery Material for any purpose.
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`(c)
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`This Order is without prejudice to the right of any Party to seek further or
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`additional protection of any Discovery Material or to modify this Order in any way, including,
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`without limitation, an order that certain matter not be produced at all.
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`4.
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`
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`DURATION
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`Unless modified, superseded or terminated pursuant to the terms contained in this
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`Order, this Protective Order shall remain in effect through the conclusion of this litigation. Even
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`after the termination of this case, the confidentiality obligations imposed by this Order shall remain
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`in effect until a Producing Party agrees otherwise in writing or a court order otherwise directs.
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`5.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`(a)
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` Basic Principles. All Protected Material shall be used solely for this case or
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`any related appellate proceeding, and not for any other purpose whatsoever, including without
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`limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue
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`proceedings, or any business or competitive purpose or function. Notwithstanding the foregoing,
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`Protected Material from this action may be used in VirnetX, Inc. v. Apple Inc., United States
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`AGREED PROTECTIVE ORDER
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`District Court for the Eastern District of Texas, Case No. 6:13-cv-211. Protected Material shall not
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`be distributed, disclosed or made available to anyone except as expressly provided in this Order.
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`(b)
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`Patent Prosecution Bar. Absent the written consent of the Producing Party,
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`anyone who receives, obtains, has access to, or otherwise learns, in whole or in part, technical
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`information designated “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL
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`– ATTORNEYS’ EYES ONLY – SOURCE CODE” shall not be involved, directly or indirectly, in
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`any of the following activities: advising on, consulting on, preparing, prosecuting, drafting, editing,
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`and/or amending of patent applications, specifications, claims, and/or responses to office actions, or
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`otherwise affecting the disclosure in patent applications or specifications or the scope of claims in
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`patents or patent applications relating to the subject matter of the Patents-in-suit, including, but not
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`limited to, the functionality, operation, and design of encrypted channels, including Virtual Private
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`Networks (“VPN”) (generally or as described in any patent in suit) or DNS services, before any
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`foreign or domestic agency,
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`including
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`the United States Patent and Trademark
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`Office. Notwithstanding the forgoing, these prohibitions are not intended to and shall not preclude
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`counsel from participating in any reexamination or interpartes review proceedings involving the
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`Patents-in-suit except that Plaintiffs’ counsel shall not draft or assist in the drafting of any claim or
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`amendment to any claim of the Patents-in-suit for a period ending one year after the resolution of
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`this litigation (including any appeals). These prohibitions shall begin when access to
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY – SOURCE CODE” materials are first received by the affected individual, and shall
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`end one (1) year after the final resolution of this action, including all appeals.
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`(c)
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`Secure Storage. Protected Material must be stored and maintained by a
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`Receiving Party in a secure manner that ensures that access is limited to the persons authorized
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`AGREED PROTECTIVE ORDER
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`under this Order. The Receiving Party shall exercise at least the same degree of care in handling
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`the Protected Material from the Producing Party that it would with its own Protected Material and
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`to confidential information of a similar nature.
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`(d)
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`Legal Advice Based on Protected Material. Nothing in this Protective Order
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`shall be construed to prevent counsel from advising their clients with respect to this case based in
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`whole or in part upon Protected Materials, provided counsel does not disclose the Protected
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`Material itself except as provided in this Order.
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`(e)
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`Limitations. Nothing in this Order shall restrict in any way a Producing
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`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
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`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
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`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
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`to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
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`and/or provided by the Producing Party to the Receiving Party or a non-party without an
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`obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
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`Producing Party; or (v) pursuant to Order of the Court.
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`(f)
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`Prior Discovery by the Parties. The Parties have been involved in prior
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`actions, including VirnetX Inc., et al. v. Cisco Systems, Inc., et al., United States District Court for
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`the Eastern District of Texas, Civil Action No. 6:10-cv-417, VirnetX Inc., v. Apple Inc., United
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`States District Court for the Eastern District of Texas, Civil Action No. 6:13-cv-211, and ITC
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`Investigation Nos. 337-TA-818 and 337-TA-858 (“Prior Actions”). A Party may designate in
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`writing that prior discovery provided by that Party from Prior Actions is deemed produced in this
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`lawsuit and subject to the terms of this Protective Order. Such prior discovery may include
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`AGREED PROTECTIVE ORDER
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`document productions, source code, written discovery responses, depositions, and deposition
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`exhibits.
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`(g)
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`Secure Storage, No Export. Protected Material must be stored and
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`maintained by a Receiving Party at a location in the United States and in a secure manner that
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`ensures that access is limited to the persons authorized under this Order. To ensure compliance
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`with applicable United States Export Administration Regulations, Protected Material may not be
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`exported outside the United States or released to any foreign national (even if within the United
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`States).
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`6.
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`DESIGNATING PROTECTED MATERIAL
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`(a)
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`Available Designations. Any Producing Party may designate Discovery
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`Material with any of the following designations, provided that it meets the requirements for such
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`designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
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`EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
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`CODE.”
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`(b) Written Discovery and Documents and Tangible Things. Written discovery,
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`documents (which include “electronically stored information,” as that phrase is used in Federal
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`Rule of Procedure 34), and tangible things that meet the requirements for the confidentiality
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`designations listed in Paragraph 6(a) may be so designated by placing the appropriate designation
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`on every page of the written material prior to production. For digital files being produced, the
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`Producing Party may mark each viewable page or image with the appropriate designation, and
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`mark the medium, container, and/or communication in which the digital files were contained. In
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`the event that original documents are produced for inspection, the original documents shall be
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`AGREED PROTECTIVE ORDER
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`presumed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” during the inspection and re-
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`designated, as appropriate during the copying process.
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`(c)
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`Depositions and Testimony. Parties or testifying persons or entities may
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`designate depositions and other testimony with the appropriate designation by indicating on the
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`record at the time the testimony is given. Alternatively, the producing party may designate testimony
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`or information disclosed at the deposition by notifying all parties in writing within fourteen (14) days
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`after the producing party’s receipt of the transcript, of the specific pages and lines of the transcript
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`that contain Protected Material. If no indication on the record is made, all information disclosed
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`during a deposition shall be deemed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the
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`time within which it may be appropriately designated as provided for herein has passed. Any Party
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`that wishes to disclose the transcript, or information contained therein, may provide written notice
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`of its intent to treat the transcript as non-confidential, after which time, any Party that wants to
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`maintain any portion of the transcript as confidential must designate the confidential portions
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`within fourteen (14) days, or else the transcript may be treated as non-confidential. Any Protected
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`Material that is used in the taking of a deposition shall remain subject to the provisions of this
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`Protective Order, along with the transcript pages of the deposition testimony dealing with such
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`Protected Material. In such cases the court reporter shall be informed of this Protective Order and
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`shall be required to operate in a manner consistent with this Protective Order. In the event the
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`deposition is videotaped, the original and all copies of the videotape shall be marked by the video
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`technician to indicate that the contents of the videotape are subject to this Protective Order,
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`substantially along the lines of “This videotape contains confidential testimony used in this case
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`and is not to be viewed or the contents thereof to be displayed or revealed except pursuant to
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`the terms of the operative Protective Order in this matter or pursuant to written stipulation of
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`AGREED PROTECTIVE ORDER
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`the parties.” Counsel for any Producing Party shall have the right to exclude from oral
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`depositions, other than the deponent, deponent’s counsel, the reporter and videographer (if
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`any), any person who is not authorized by this Protective Order to receive or access Protected
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`Material based on the designation of such Protected Material. Such right of exclusion shall be
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`applicable only during periods of examination or testimony regarding such Protected Material.
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`7.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
`
`(a)
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`A Producing Party may designate Discovery Material as “CONFIDENTIAL”
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`if it contains or reflects confidential, proprietary, and/or commercially sensitive information.
`
`(b)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“CONFIDENTIAL” may be disclosed only to the following:
`
`(i)
`
`The Receiving Party’s Outside Counsel;
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`(ii) Outside Counsel’s paralegals and staff, and any copying or clerical
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`litigation support services working at the direction of such counsel, paralegals, and staff;
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`(iii) Not more than three (3) representatives of the Receiving Party who
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`are officers or employees of the Receiving Party and who are not involved in competitive decision-
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`making, who may be, but need not be, in-house counsel for the Receiving Party, as well as their
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`immediate paralegals and staff, to whom disclosure is reasonably necessary for this case, provided
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`that: (a) each such person has agreed to be bound by the provisions of the Protective Order by
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`signing a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist after
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`proper notice has been given to all Parties as set forth in Paragraph 12 below;
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`(iv) Any outside expert or consultant retained by the Receiving Party to
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`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
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`AGREED PROTECTIVE ORDER
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`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
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`officer, director, or employee of a Party or a competitor of a Party, nor anticipated at the time of
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`retention to become an officer, director or employee of a Party or a competitor of a Party; (c) such
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`expert or consultant accesses the materials in the United States only, and does not transport them to
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`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;
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`(v)
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`Court reporters, stenographers and videographers retained to record
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`testimony taken in this action;
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`(vi)
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`The Court, jury, and court personnel;
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`(vii) Graphics, translation, design, and/or trial consulting services, having
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`first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit
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`A;
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`(viii) Mock jurors who have signed an undertaking or agreement agreeing
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`not to publicly disclose Protected Material and to keep any information concerning Protected
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`Material confidential;
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`Paragraph 11, below.
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`(ix) At a deposition or at trial, any person who falls within the scope of
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`(x)
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`Any mediator who is assigned to hear this matter, and his or her staff,
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`subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`Party.
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`(xi) Any other person with the prior written consent of the Producing
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`AGREED PROTECTIVE ORDER
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`8.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY”
`
`
`
`
`(a)
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`A Producing Party may designate Discovery Material as “CONFIDENTIAL
`
`– ATTORNEYS’ EYES ONLY”1 if it contains or reflects information that is extremely
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`confidential and/or sensitive in nature and the Producing Party reasonably believes that the
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`disclosure of such Discovery Material is likely to cause economic harm or significant competitive
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`disadvantage to the Producing Party. The Parties agree that the following information, if non-
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`public, shall be presumed to merit the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`designation: trade secrets, pricing information, financial data, sales information, sales or marketing
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`forecasts or plans, business plans, sales or marketing strategy, product development information,
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`engineering documents,
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`testing documents, employee
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`information, and other non-public
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`information of similar competitive and business sensitivity.
`
`(b)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“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;
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`(iii) Regarding documents produced by a Plaintiff, not more than three (3)
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`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
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`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.
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`AGREED PROTECTIVE ORDER
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`objections to such disclosure exist after proper notice has been given to all Parties as set forth
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`in Paragraph 12 below;
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`(iv) Any outside expert or consultant retained by the Receiving Party to
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`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
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`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
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`retention to become an officer, director, or employee of a Party or a competitor of a Party; (c) such
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`expert or consultant is not involved in competitive decision-making on behalf of a Party; (d) such
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`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)
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`Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
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`(vi)
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`The Court, jury, and court personnel;
`
`(vii) Graphics, translation, design, and/or trial consulting services, having
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`first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit
`
`A;
`
`paragraph 11, below;
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`(viii) At a deposition or at trial, any person who falls within the scope of
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`(ix) Any mediator who is assigned to hear this matter, and his or her staff,
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`subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`AGREED PROTECTIVE ORDER
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`(x)
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`Any other person with the prior written consent of the Producing
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`Party.
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`9.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”
`
`(a)
`
`To the extent production of Source Code becomes necessary to the
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`prosecution or defense of the case, a Producing Party may designate Source Code as
`
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” if it comprises
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`or includes confidential, proprietary, and/or trade secret Source Code.
`
`(b)
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`Nothing in this Order shall be construed as a representation or admission that
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`Source Code is properly discoverable in this action, or to obligate any Party to produce any Source
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`Code.
`
`(c)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“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
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`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
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`officer, director, or employee of a Party, nor anticipated at the time of retention to become an
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`officer, director or employee of a Party; (c) such expert or consultant is not involved in competitive
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`AGREED PROTECTIVE ORDER
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`decision-making on behalf of a Party; and (d) no unresolved objections to such disclosure exist
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`after proper notice has been given to all Parties as set forth in Paragraph 12 below;
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`(iv) Court reporters, stenographers and videographers retained to record
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`testimony taken in this action;
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`(v)
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`The Court, jury, and court personnel;
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`(vi) Graphics, translation, design, and/or trial consulting services, having
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`first agreed to be bound by the provisions of the Protective Order by signing a copy of Exhibit
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`A;
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`paragraph 11, below;
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`(vii) At a deposition or at trial, any person who falls within the scope of
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`(viii) Any mediator who is assigned to hear this matter, and his or her staff,
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`subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`Party.
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`(ix) Any other person with the prior written consent of the Producing
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`10. DISCLOSURE AND REVIEW OF SOURCE CODE
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`(a)
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`Any Source Code that is produced by VirnetX shall be made available for
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`inspection in electronic format at the Dallas office of its outside counsel, Caldwell Cassady Curry
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`P.C., or any other location mutually agreed by the Parties. Any Source Code that is produced by
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`Apple Inc. will be made available for inspection at the Houston office of its outside counsel,
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`Williams, Morgan, & Amerson, PC, or any other location mutually agreed by the Plaintiffs and
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`Apple. Any Source Code that is produced by SAIC will be made available for inspection at the
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`Los Angeles office of its outside counsel, Urabazzo Law P.C., or any other location mutually
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`AGREED PROTECTIVE ORDER
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`agreed by the SAIC and Apple. Source Code will be made available for inspection between the
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`hours of 8 a.m. and 8 p.m. Monday through Friday (excluding holidays) and from 9 a.m. to 6 p.m.
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`on Saturday and Sunday (excluding holidays). The requesting party shall make its best efforts to
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`restrict its access to normal business hours.2 As an alternative, a Plaintiff may opt to produce its
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`source code on CD, DVD or other storage media as “CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY - SOURCE CODE.” Defendant may copy such produced source
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`code of Plaintiff from the medium to two secured computers without Internet access or network
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`access to other computers which must be kept in a secure location at the offices of the receiving
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`parties’ Outside Counsel. One week prior to the beginning of trial and continuing through the end
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`of trial, each Producing Party shall make its source code available for inspection at a location in
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`Tyler, Texas. The Producing Party shall make the source code available in its native format and
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`with the same tools and file structure which the source code had when originally produced in this
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`matter.
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`(b)
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`Prior to the first inspection of any requested Source Code, the Receiving
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`Party shall provide twenty (20) days notice of the Source Code that it wishes to inspect. The
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`Receiving Party shall provide twenty four (24) hours notice prior to any additional inspections.
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`One week prior to the beginning of trial and continuing through the end of trial, the Receiving Party
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`only need provide three (3) hours notice for the inspection of source code.
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`(c)
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`Source Code
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`that
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`is designated “CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be produced for inspection and review
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`subject to the following provisions, unless otherwise agreed by the Producing Party:
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`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.
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`AGREED PROTECTIVE ORDER
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`(i)
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`All Source Code shall be made available by the Producing Party to
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`the Receiving Party’s outside counsel and/or experts in a secure room on two secured computers
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`without Internet access or network access to other computers, as necessary and appropriate to
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`prevent and protect against any unauthorized copying, transmission, removal or other transfer of
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`any Source Code outside or away from the computer on which the Source Code is provided for
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`inspection (the “Source Code Computer” in the “Source Code Review Room”). The Producing
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`Party shall install tools that are sufficient for viewing and searching the code produced, on the
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`platform produced, if such tools exist and are presently used in the ordinary course of the
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`Producing Party’s business. If requested by the Receiving Party, the producing party shall install
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`tools reasonably necessary to review the source code on the Source Code Computers including, but
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`not limited to: Grep, Understand C, Visual Slick Edit, Source-Navigator, PowerGrep and/or
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`ExamDiff Pro. If the Producing Party does not possess an appropriate license to any such software
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`tools, the Requesting Party may provide the Producing Party with a licensed copy of such software
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`tools, and the Producing Party shall install such software tools on the source code computers. The
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`Receiving Party must provide the Producing Party with the CD or DVD containing such licensed
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`software tool(s) at least fourteen (14) days in advance of the date upon which the Receiving Party
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`wishes to have the additional software tools available for use on the Source Code Computers.
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`(ii)
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`No recordable media or recordable devices, including without
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`limitation sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
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`DVDs, or drives of any kind, shall be permitted into the Source Code Review Room. The
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`Producing Party will provide the Receiving Party with a secure location near the source code room
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`to store their cellular telephones etc. and to make phone calls.
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`AGREED PROTECTIVE ORDER
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