Case 9:13-cv-00091-RC Document 82 Filed 03/24/14 Page 1 of 24 PagelD #: 2137
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`** NOT PRINTED FOR PUBLICATION **
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`LUFKIN DIVISION
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`CIVIL ACTION No. 9-13-CV-91
`
`JUDGE RON CLARK
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`§
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`2 §
`
`g
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`§
`
`g
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`LUNAREYE, INC,
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`Plaintififi
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`V.
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`GORDON HOWARD ASSOCIATES, INC.,
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`Defendant.
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`AMENDED PROTECTIVE ORDER
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`1.
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`This Protective Order governs the designation, disclosure and use of confidential
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`and highly confidential information in the above-identified action. This Protective Order shall
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`govern until modified or superseded by a further order of this Court.
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`2.
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`In this Protective Order the terms “CONFIDENTIAL INFORMATION” and
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`“HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY” shall mean
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`information so designated in compliance with this Protective Order. Information so designated
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`may be all or part of a document or thing, testimony, interrogatory, answer, admission or other
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`form of evidence or discovery.
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`3.
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`(a) Any nerson,
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`including non—parties, producing information in this action
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`(“Producing Party”) may designate as “CONFIDENTIAL INFORMATION” any information,
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`thing, testimony, answers, documents, or other discovery materials of a confidential, sensitive
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`nature (a) which the Producing Party reasonably and in good faith believes is in fact confidential,
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`internal information, (b) which has not been disclosed to, or is otherwise not reasonably available
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`GH EXHIBIT 1030
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`to the public or industry, and (0) includes but is not limited to information that concerns or relates
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`to business processes, operations, style of work, or to sales, shipments, purchases or transfers of
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`any product, external non-public communications, and external training materials.
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`(b) Any Producing Party may designate as “HIGHLY CONFIDENTIAL INFORMATION
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`~ ATTORNEYS’ EYES ONLY” any information, testimony, answers, documents, or other
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`discovery materials of a confidential, proprietary and/or trade secret nature which is of a
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`particularly sensitive nature of the type that could be readily exploited for commercial advantage
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`by a competitor including, without limitation, proprietary trade secrets or competitively sensitive
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`data; customer lists; customer information; business, product or marketing plans; cost data;
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`pricing information; internal training materials; market studies or forecasts; nonpublic financial
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`data; nonpublic patent applications and related communications; agreements with third parties;
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`information obtained from a non-party pursuant to a current Nondisclosure Agreement (“NDA”);
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`information concerning development activities for products; technical information for products;
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`and research or development or other activities or other information concerning or relating to
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`current or future products.
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`4.
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`Any Producing Party providing source code in this action may specially designate
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`such source code (whether in electronic or hard copy form) as a subcategory of HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY worthy of heightened
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`protection. Such information shall be marked HIGHLY CONFIDENTIAL: RESTRICTED
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`SOURCE CODE MEDIA (hereinafter “RESTRICTED SOURCE CODE MEDIA”).
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`In
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`designating RESTRICTED SOURCE CODE MEDIA, the Producing Party will make such
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`designation only as to that information that is regularly treated as, and in good faith believes
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`contains, RESTRICTED SOURCE CODE MEDIA, as defined herein and consistent with Federal
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`Rule of Civil Procedure 26(c)(1)(G). RESTRICTED SOURCE CODE MEDIA shall be subject to
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`all of the provisions of this Protective Order regarding HIGHLY CONFIDENTIAL
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`INFORMATION — ATTORNEYS’ EYES ONLY and shall also be subject to the following
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`additional procedures and restrictions:
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`(3)
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`A Producing Party shall make searchable versions of source code for the accused
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`products available only on stand-alone, non—networked computers without Internet access (“the
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`Source Code Computer”) at secure locations ofthe offices ofthe Producing Party’s counsel or any
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`other location mutually agreed to between the Producing Party and the requesting party. To the
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`extent it already exists, the Producing Party shall also provide an index or cross-index of all
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`portions of the code (by file name(s)). Access to the code shall only be provided to persons
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`authorized to receive HIGHLY CONFIDENTIAL INFORMATION—ATTORNEYS’ EYES
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`ONLY (as defined in paragraphs 10 and 11). The Producing Party shall make the source code
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`available for inspection on weekdays between 8:00 a.m. and 6:00 pm. local time. Upon receipt
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`of a request to inspect its source code, the Producing Party must make the source code available
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`for inspection within 72 hours of the request, absent exigent circumstances or otherwise agreed to
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`by the Producing Party and requesting party. The Producing Party may agree to allow access to
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`such secure locations on Saturdays and Sundays (8:00 am. to 6:00 pm. local time). The
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`Requesting Party is expected and agrees to make reasonable efforts to restrict its access to normal
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`business hours except where necessary to accommodate the work schedules of its source code
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`reviewers. At no time shall persons authorized to receive HIGHLY CONFIDENTIAL
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`INFORMATION — ATTORNEYS’ EYES ONLY under Paragraphs 9(c) and 9(i) be allowed to
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`receive, access, or View machine-readable RESTRICTED SOURCE CODE MEDIA under this
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`subparagraph unless such persons have executed an undertaking in the form of Appendix A and
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`the requesting party (hereinafter also referred to as the “Receiving Party”) first makes a request to
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`review the RESTRICTED SOURCE CODE MEDIA least 48 hours in advance, wherein said
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`request includes providing, to the Producing Party, an executed undertaking in the form of
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`Appendix A for each person under Paragraphs 9(c) and 9(i) which the Receiving Party intends to
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`allow to receive, access, or View machine-readable RESTRICTED SOURCE CODE MEDIA.
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`The requesting party shall restrict its requests for access to normal business hours, unless
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`otherwise agreed to between the parties. The parties will produce code in computer searchable
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`format. Furthermore, each Source Code Computer shall have a copy of software sufficient to
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`allow review and searching of the code. The costs associated with software for reviewing the
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`Source Code shall be paid for by the party requesting such software. Under no circumstances
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`shall the source code be compiled into executable code by the requesting party.
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`(b)
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`No copies of all or any portion of the source code may leave the room in which the
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`source code is inspected except as otherwise provided herein. Based upon the requesting party’s
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`review of the code on the Source Code Computer, the requesting party may select and print
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`portions of the source code that it believes are reasonably necessary to evaluate infringement and
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`prepare court filings or pleadings or other papers (including a testifying expert’s expert report or
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`for use as deposition exhibits). Only those portions of the source code that are relevant to the
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`elements of claim 3 of United States Patent No. 6,484,035 should be selected and printed and need
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`be produced.
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`In addition, the requesting party shall be limited to printing no more than 50
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`consecutive pages, and no more than 300 total pages of source code. However, good faith
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`requests for the printing of additional pages beyond these limits shall not be unreasonably denied.
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`The requesting party shall not print RESTRICTED SOURCE CODE MEDIA material in order to
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`review blocks of source code elsewhere in the first instance, e.g. as an alternative to reviewing that
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`source code electronically on the stand-alone computer, as the parties hereto acknowledge and
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`agree that the purpose of the protections herein would be frustrated by printing portions of code for
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`review and analysis elsewhere.
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`If the Producing Party believes that the requesting party has
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`selected and/or printed irrelevant or objectionable portions of the code, the Producing Party shall
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`produce all non-objectionable portions of the code as set forth herein, and provide a written
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`objection regarding any other portions selected/printed within seven (7) days. If an agreement
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`regarding production of such objectionable portions of code cannot be reached within seven (7)
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`days, the Producing Party shall file a motion seeking to prevent production of such information.
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`Otherwise, upon selecting and/or printing any such portions of source code, the printed pages shall
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`be collected by the Producing Party. The Producing Party shall maintain a Source Code Access
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`Log identifying, for each and every time any Source Code is viewed, or accessed at the secure
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`location: (1) the name and address of each person who accessed the Source Code; (2) the date and
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`time of access; (3) the length of time of access; and (4) whether any hard copies of any portion of
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`Source Code were printed. The Producing Party shall Bates number, copy and label
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`“CONTAINS HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA” any pages
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`printed by the Receiving Party and deliver them to the Receiving Party. Access to such paper
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`copies shall only be provided to persons authorized to receive HIGHLY CONFIDENTIAL
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`INFORMATION—ATTORNEYS” EYES ONLY (as defined in paragraphs 10 and 11). The
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`party receiving paper copies of such code must keep that code in a locked safe or locked storage
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`cabinet (“Secured Container”) when not actually in use. Paper copies of code may not
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`themselves be copied and may not be removed from a Secured Container unless in a secured,
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`private area, and only then by persons authorized to receive HIGHLY CONFIDENTIAL
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`INFORMATION — ATTORNEYS’ EYES ONLY. Attorneys, however, may make copies of the
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`paper copies for use as exhibits in court proceedings and at depositions. The Receiving Party
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`shall maintain a log of all files that are photocopied. These additional copies will be treated the
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`same as the original print cuts. The Code Reviewers (defined in Paragraph 4(e)) may have in
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`their offices a paper copy of those portions of the code on which they are working, provided that
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`the Code Reviewers’ offices are secure and private and that whenever the Code Reviewers are not
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`working on the code they must return the paper copy they were working on immediately to the
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`Secured Container. Images or copies of source code shall not be included in correspondence
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`between the parties (references to production numbers shall be used instead), and shall be omitted
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`from pleadings and other papers whenever possible.
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`(0)
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`The Producing Party shall not electronically monitor review of code by the
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`Receiving Party (by any means, including Video, audio, software programs that capture search
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`terms of keyboard entries, etc.); however, the Producing Party may visually monitor the activities
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`of the Receiving Party to ensure that no unauthorized activity is occurring.
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`(d)
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`The Code Reviewers (defined in Paragraph 4(e)) may use their searching tools for
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`inspecting the code; however, the Receiving Party must provide to the Producing Party, at least 48
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`hours prior to inspection of the source code, the CD(s), DVD(s), or other electronic media on
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`which the searching tools are contained. Code Reviewers may create a back-up copy of the code
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`on the Source Code Computer. The Code Reviewers may use their searching tools to annotate,
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`number the lines of, and Bates label the pages of the back-up copy of the code. The back—up copy
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`will remain on the Source Code Computer and be subject to all of the provisions of this Order that
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`govern RESTRICTED SOURCE CODE MEDIA. Under no circumstances shall the Code
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`Reviewers make any annotations or other changes to the original copy of the source code.
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`In
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`addition, Code Reviewers shall not bring with them into the secure review room any sound
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`recorders, computers, peripheral equipment, external storage devices or media, telephones,
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`cameras, drives of any kind, or other means by which the RESTRICTED SOURCE CODE
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`MEDIA material may be copied.
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`(e)
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`“Code Reviewers” are technical advisors (and members of his or her professional
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`staff) retained by the requesting party to review source code in compliance with Paragraph 11 and
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`counsel as set forth in Paragraphs 9 and 10. Code Reviewers shall not include persons allowed to
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`view HIGHLY CONFIDENTIAL INFORMATION —ATTORNEYS’ EYES ONLY information
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`under paragraph 9(i).
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`(f)
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`Copies of source code that are marked as deposition exhibits shall not be provided
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`to the court reporter or attached to deposition transcripts; rather, the deposition record will identify
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`the exhibit by its production numbers. Counsel shall be permitted to show copies of source code
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`to witnesses presented by the Producing Party, but Counsel shall not mark the code as an exhibit
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`and shall instead reference it by Bates number.
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`(g)
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`Nothing in this Order shall restrict third-parties from reaching agreements with
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`parties regarding the handling and distribution of the third-parties’ RESTRICTED SOURCE
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`CODE MEDIA that differ from the terms provided herein.
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`5.
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`A Producing Party may designate material as CONFIDENTIAL INFORMATION,
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`HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA at the time it produces the material
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`or within thirty (30) days thereafter. In the case of deposition testimony, the testimony or any
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`portion thereof may be designated as CONFIDENTIAL INFORMATION, HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA at the deposition or within thirty
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`(30) days after receipt of the deposition transcript.
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`6.
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`CONFIDENTIAL INFORMATION and HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY shall be designated during discovery by the following procedure:
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`(a)
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`When a document to be produced for inspection contains CONFIDENTIAL
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`INFORMATION or HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES
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`ONLY the Producing Party shall so notify the inspecting party. A document produced for
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`inspection for which such notice has been given shall be inspected only by persons authorized to
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`receive CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY, as the case may be.
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`(b) When an inspecting party requests a copy of a document, the Producing Party shall
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`designate the copy as containing CONFIDENTIAL INFORMATION or HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY by marking, according to
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`the provisions of paragraph 7, each page of the copy that is or contains such information.
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`If the
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`first page of a multi-page document is designated, it shall be presumed that the entire document is
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`subject to the designated level of confidentiality.
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`(c)
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`When deposition testimony is or contains CONFIDENTIAL INFORMATION,
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`HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA any attorney of record present may
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`designate that testimony as containing CONFIDENTIAL INFORMATION, HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA by notifying others present on the
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`record of the deposition. The deposition reporter shall then so mark each page of the transcript
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`that reports designated testimony. Alternatively, any party may, until and including thirty (30)
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`days after receipt of a copy of said deposition transcript, designate by page and line 01‘ exhibit
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`description those portions of the transcript or exhibits which contain CONFIDENTIAL
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`INFORMATION, HIGHLY CONFIDENTIAL INFORMATION -— ATTORNEYS’ EYES
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`ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA. All
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`transcripts and exhibits from depositions taken in this action shall be deemed to contain HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY until and including thirty
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`(30) days after receipt of a copy of said deposition transcript by all counsel of record for the
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`parties. The parties may also designate the entire deposition testimony of a witness as containing
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`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE
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`MEDIA. If no such designation is made either on the record at the time the deposition is taken or
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`within the time period specified above, the transcript and exhibits shall be deemed to contain
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`CONFIDENTIAL INFORMATION.
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`(d)
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`When responses to interrogatories or requests to admit contain CONFIDENTIAL
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`INFORMATION, HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES
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`ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA, the
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`responding party shall mark the cover page and each succeeding page of its response that contains
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`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE
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`MEDIA pursuant to paragraph 7.
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`(e)
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`Any CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL
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`INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL:
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`RESTRICTED SOURCE CODE MEDIA documents produced prior to the entry of this Protective
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`Order which were not so marked or were erroneously marked shall be marked in accordance with
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`this Protective Order within ten (10) days following entry of this Protective Order.
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`7.
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`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL
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`INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL:
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`RESTRICTED SOURCE CODE MEDIA shall be marked pursuant to paragraph 5 of this
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`Protective Order by the placement of an appropriate stamp, sticker or other indicia of substantially
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`the following form:
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`CONFIDENTIAL INFORMATION,
`HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY,
`HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA
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`8.
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`Any
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`CONFIDENTIAL
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`INFORMATION, HIGHLY CONFIDENTIAL
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`INFORMATION — ATTORNEYS’ EYES ONLY,
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`or HIGHLY CONFIDENTIAL:
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`RESTRICTED SOURCE CODE MEDLA, or any document incorporating such information, that
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`is filed or lodged with the Court shall be filed under seal and shall remain under seal until further
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`order of the Court. The filing party shall be responsible for informing the Clerk of the Court that
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`the filing should be sealed and for placing the legend “FILED UNDER SEAL PURSUANT TO
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`PROTECTIVE ORDER” above the caption and conspicuously on each page of the filing. Exhibits
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`to a filing shall conform to the labeling requirements set forth in this Order.
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`The Clerk shall maintain such information or document under seal subject to further order
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`of the Court.
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`9.
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`CONFIDENTIAL INFORMATION may be disclosed only to persons in the
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`following categories who have the actual need to review CONFIDENTIAL INFORMATION:
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`(a)
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`Outside attorneys who have entered an appearance for a party in this action.
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`(b)
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`No more than three (3) employees, representatives or consultants of a party to this
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`action, provided that, before any CONFIDENTIAL INFORMATION is disclosed to any such
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`individual, counsel desiring to disclose CONFIDENTIAL INFORMATION to such individual
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`shall first obtain a signed undertaking in the form of Appendix A hereto from each individual and
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`forward a copy to counsel for the designating party and other counsel of record.
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`(c)
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`any non-attorney support staff who is employed by a law firm and is working
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`directly for an attorney authorized to review CONFIDENTIAL INFORMATION pursuant to
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`sub-paragraph 9(a) above;
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`(d)
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`any non-attorney support staff who is employed as a regular employee by an
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`in-house legal department and is working directly for an attorney authorized to review
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`CONFIDENTIAL INFORMATION pursuant to sub-paragraph 9(b) above;
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`(6)
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`independent (outside) expert(s) or consultant(s) who has been qualified to have
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`access to CONFIDENTIAL INFORMATION as provided in paragraph 11 of this Protective
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`Order;
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`(f)
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`support staff working directly for independent (outside) expert(s) or consultant(s)
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`qualified to have access to CONFIDENTIAL INFORMATION as provided in paragraph 11 of
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`this Protective Order;
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`(g)
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`any personnel of the Court and court reporters/videographers retained to record
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`and/or transcribe testimony in this action;
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`(h)
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`any representative of the party that produced the CONFIDENTIAL
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`INFORMATION to the extent the representative has authority to access such information;
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`(i)
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`(j)
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`personnel of photocopy firms or graphics firms engaged by a party; and/or
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`a former employee or former consultant of the party that produced the
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`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY who authored, received or was shown the information during his or
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`her employment by the Producing Party. This paragraph will not prevent the disclosure, during a
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`deposition, of a document containing CONFIDENTIAL INFORMATION, HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTML: RESTRICTED SOURCE CODE MEDIA to a deponent who was an employee
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`of the Producing Party when the document containing the CONFIDENTIAL INFORMATION,
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`HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA was created. Such deponent may be
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`shown such document during the course of his or her deposition for the limited purpose of
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`determining whether that document was received by or shown to that deponent during his or her
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`employment by the party. If the former employee recognizes the document, he or she may be
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`subject to further examination regarding that document.
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`10.
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`HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY
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`not also marked RESTRICTED SOURCE CODE MEDIA may be shown to the persons identified
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`above in paragraph 9, except for those individuals identified in paragraph 9(b) or 9(d).
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`RESTRICTED SOURCE CODE MEDIA may be disclosed only in accordance with paragraph 4.
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`11.
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`Any party may qualify independent experts or independent consultants, for access
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`to CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY subject to paragraphs 9 and 10 above and for access to
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`RESTRICTED SOURCE CODE MEDIA subject to paragraph 4 above. An expert or consultant
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`shall be qualified for access to such information as follows:
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`(a)
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`The party seeking to have an expert or consultant qualified for access shall provide
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`counsel of record for each party with a statement indicating whether the proposed access is to
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`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY, or RESTRICTED SOURCE CODE MEDIA, a curriculum vitae
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`for that expert or consultant, and a copy of an acknowledgment form, shown as Appendix A to this
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`Protective Order, that has been completed and signed by that expert or consultant. The
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`curriculum vitae shall identify any and all relationships that the expert or consultant has had within
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`the past four (4) years with any company, person or other entity that designs, utilizes,
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`manufactures, distributes or sells vehicle or vessel tracking, management or locator systems,
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`software, or products or anything related to the subject matter of the patents-in-suit. However, if
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`the consultant is retained solely for financial expertise and the disclosure of previous engagements
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`would violate pre-existing confidentiality obligations to non-parties, that disclosure will not be
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`required. Notwithstanding the foregoing, the consultant or expert shall disclose in his or her
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`curriculum vitae any relationship (personal, professional, or business) that the consultant or expert
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`has with any party, any officer or director of any party, any party employee, or any person or entity
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`associated with any party.
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`(b)
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`The other parties shall have seven (7) business days after receipt of the curriculum
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`vitae and acknowledgment form pursuant to subparagraph (a) above in which to deliver to the
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`party seeking to qualify the expert or consultant any written objection to the disclosure of
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`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
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`ATTORNEYS’ EYES ONLY, or RESTRICTED SOURCE CODE MEDIA to said expert or
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`consultant. If the party seeking to have its consultant qualified to review confidential documents
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`disagrees with the other party’s objection, such party may make a specific written request for a
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`conference pursuant to local Rule CV-7(h).
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`If the issue is not resolved by such 7(h) conference,
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`the objecting party must move the court for an appropriate order within seven (7) business days of
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`the date of the 7(h) conference. No CONFIDENTIAL INFORMATION HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS” EYES ONLY, or RESTRICTED
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`SOURCE CODE MEDIA shall be disclosed to an expert or consultant, in the absence of written
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`authorization by the party producing such information, until the expiration of the seven
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`business—day period for the opposing party to make an objection, or if such objection is made, until
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`the resolution of the objection, whether formally or informally.
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`(c)
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`When a corporation or other organization is engaged as an expert or consultant by a
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`party or its counsel of record, the corporation or organization may become qualified to review
`
`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
`
`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE
`
`MEDIA under this Protective Order only upon the qualification of each person within such
`
`organization or corporation who has access to the CONFIDENTIAL INFORMATION, HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
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`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA.
`
`12.
`
`A party may disclose CONFIDENTIAL INFORMATION or HIGHLY
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`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY in a Court proceeding upon
`
`consent of the Producing Party or permission of the Court. Nothing in this Protective Order is
`
`intended to limit the admissibility of any discovery produced by a Producing Party.
`
`13.
`
`(a)
`
`The substance or content of any CONFIDENTIAL INFORMATION, as well as
`
`any notes, abstracts, copies, summaries and memoranda relating thereto shall not be disclosed to
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`or accessible by anyone other than a person qualified to obtain CONFIDENTIAL
`
`INFORMATION pursuant to this Protective Order, and any such notes, abstracts, copies,
`
`l4
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`

`

`Case 9:13-cv-00091-RC Document 82 Filed 03/24/14 Page 15 of 24 PagelD #: 2151
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`summaries and memoranda shall be treated as CONFIDENTIAL INFORMATION in all respects.
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`This provision shall not apply to the court or court personnel, including court reporters.
`
`(b)
`
`The substance or content of any HIGHLY CONFIDENTIAL INFORMATION _
`
`ATTORNEYS’ EYES ONLY, as well as any notes, abstracts, copies, summaries and memoranda
`
`relating thereto shall not be disclosed to or accessible by anyone other than a person qualified to
`
`obtain HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS' EYES ONLY pursuant to
`
`this Protective Order, and any such notes, abstracts, copies, summaries and memoranda shall be
`
`treated as HIGHLY CONFIDENTIAL INFORMATION— ATTORNEYS‘ EYES ONLY in all
`
`respects. This provision shall not apply to the court or court personnel, including court reporters.
`
`(0)
`
`Notwithstanding the restrictions of this paragraph, an attorney qualified to receive
`
`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION
`
`ATTORNEYS’ EYES ONLY under this Protective Order shall not be precluded (except as set
`
`forth in paragraphs 10 and 11 above) from rendering legal advice to or discussing with his or her
`
`client the merits of any issue in this litigation, as long as the specific substance or content of
`
`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION —
`
`ATTORNEYS’ EYES ONLY is not revealed to a person not qualified to receive such
`
`CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL INFORMATION —
`
`ATTORNEYS’ EYES ONLY under the terms of this Protective Order.
`
`14.
`
`All CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL
`
`INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL:
`
`RESTRICTED SOURCE CODE MEDIA shall be used solely in preparation for trial and/or
`
`appeal of the above-identified action. These materials shall not be used or disclosed at any other
`
`time or for any other purpose whatsoever. Notwithstanding the above or the remainder of this
`
`15
`
`

`

`Case 9:13-cv-00091—RC Document 82 Filed 03/24/14 Page 16 of 24 PagelD #2 2152
`
`Protective Order, any party may use CONFIDENTIAL INFORMATION, HIGHLY
`
`CONFIDENTIAL INFORMATION ~ ATTORNEYS’ EYES ONLY, or HIGHLY
`
`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA as a basis for asserting claims or
`
`defenses in the present lawsuit, provided that the CONFIDENTIAL INFORMATION, HIGHLY
`
`CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY
`
`CONFIDENTIAL: RESTRICTED SOURCE CODE MEDIA is not disclosed in a publicly
`
`available pleading or otherwise disclosed to the public. This provision shall not apply to the court
`
`and court personnel, including court reporters.
`
`15.
`
`It shall be the duty and responsibility of counsel of record to ensure that documents
`
`and things containing CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL
`
`INFORMATION —- ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL:
`
`RESTRICTED SOURCE CODE MEDIA subject to counsel’s control shall at all times be kept in
`
`a safe and secure fashion to ensure that such information is not disclosed to or made accessible to
`
`persons other than those specifically authorized to review CONFIDENTIAL INFORMATION or
`
`HIGHLY CONFIDENTIAL INFORMATION — ATTORNEYS’ EYES ONLY under this
`
`Protective Order. CONFIDENTIAL INFORMATION or HIGHLY CONFIDENTIAL
`
`INFORMATION — AT'I‘ORNEYS’ EYES ONLY of the Producing Party shall not be kept on any
`
`of the premises of the Receiving Party. Counsel of record shall be directly responsible to the court
`
`for fulfilling these responsibilities.
`
`16.
`
`The inadvertent or unintended disclosure by a party of privileged,
`
`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —-
`
`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE
`
`MEDLA, including but not limited to an inadvertent failure to designate as privileged,
`
`16
`
`

`

`Case 9:13—cv-00091-RC Document 82 Filed 03/24/14 Page 17 of 24 PagelD #: 2153
`
`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
`
`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE
`
`MEDIA within the time periods prescribed by this Protective Order, shall not be deemed a waiver
`
`in whole or in part of a subsequent claim of privilege or protection under this Protective Order,
`
`either as to the specific information disclosed or as to any other information, provided that the
`
`inadvertent or unintended disclosure is promptly identified after discovery by the Producing Party
`
`and notice of the claim of privilege or protection is given to the other parties. A party receiving
`
`notice of a changed designation or claim of privilege shall take reasonable steps to comply with
`
`such designation, including the retrieval of documents that have been distributed in a manner
`
`inconsistent with the new designation.
`
`17.
`
`A party shall not be obligated to challenge the prepriety of any designation of
`
`CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL INFORMATION —
`
`ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL: RESTRICTED SOURCE CODE
`
`MEDIA at the time of designation, and a failure to do so shall not preclude a subsequent challenge
`
`to the designation.
`
`If a party objects to any designation of such information the parties shall first
`
`try to resolve such dispute in good faith on an informal basis. If the dispute cannot be resolved
`
`informally, the objecting party may seek appropriate relief from the Court. The burden of showing
`
`entitlement to a designation of CONFIDENTIAL INFORMATION, HIGHLY CONFIDENTIAL
`
`INFORMATION — ATTORNEYS’ EYES ONLY, or HIGHLY CONFIDENTIAL:
`
`RESTRICTED SOURCE CODE ME