Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 1 of 33 PageID 602
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF TENNESSEE
`WESTERN DIVISION
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`Civil Action No. 12-cv-02767 – JPM-tmp
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`Civil Action No. 12-cv-02769 – JPM-tmp
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`Civil Action No. 12-cv-02772 – JPM-tmp
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`Civil Action No. 12-cv-02781 – JPM-tmp
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`1
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`AMAZON DIGITAL SERVICES, INC.
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`FACEBOOK, INC.
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`LINKEDIN CORP.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`GROUPON, INC.,
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`Defendant.
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 2 of 33 PageID 603
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`Civil Action No. 12-cv-02782 – JPM-tmp
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`Civil Action No. 12-cv-02783 – JPM-tmp
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`Civil Action No. 12-cv-02823 – JPM-tmp
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`Civil Action No. 12-cv-02824 – JPM-tmp
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`PANDORA MEDIA, INC.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`TWITTER, INC.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`BARNES & NOBLE, INC.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`SAMSUNG TELECOMMUNICATIONS
`AMERICA, LLC,
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`Defendant.
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`2
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 3 of 33 PageID 604
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`Civil Action No. 12-cv-02825 – JPM-tmp
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`Civil Action No. 12-cv-02826 – JPM-tmp
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`Civil Action No. 12-cv-02827 – JPM-tmp
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`Civil Action No. 12-cv-02828 – JPM-tmp
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`3
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS AMERICA,
`INC.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`SONY COMPUTER ENTERTAINMENT
`AMERICA LLC,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`SONY MOBILE
`COMMUNICATIONS (USA) INC.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`SONY ELECTRONICS INC.,
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`Defendant.
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 4 of 33 PageID 605
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`Civil Action No. 12-cv-02829 – JPM-tmp
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`Civil Action No. 12-cv-02833 – JPM-tmp
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`4
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`MICROSOFT CORP.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`GOOGLE INC.
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`PEOPLE MEDIA, INC.
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`Defendant.
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 5 of 33 PageID 606
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`Civil Action No. 12-cv-02834 – JPM-tmp
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`Civil Action No. 12-cv-02866 – JPM-tmp
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`STIPULATED PATENT PROTECTIVE ORDER
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`The parties to this Stipulated Protective Order have agreed to the terms of this Order.
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`Accordingly, it is ORDERED:
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`1.
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`Scope. All disclosures, affidavits and declarations and exhibits thereto, deposition
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`testimony and exhibits, discovery responses, documents, electronically stored information,
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`tangible objects, information, and other things produced, provided, or disclosed in the course of
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`this action which may be subject to restrictions on disclosure under this Order, and information
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`derived directly therefrom (hereinafter referred to collectively as “documents”), shall be subject to
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`this Order as set forth below. As there is a presumption in favor of open and public judicial
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`proceedings in the federal courts, this Order shall be strictly construed in favor of public disclosure
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`5
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`MATCH.COM, LLC,
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`Defendant.
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`B.E. TECHNOLOGY, L.L.C.,
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`Plaintiff,
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`v.
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`MOTOROLA MOBILITY
`HOLDINGS LLC,
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`Defendant.
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 6 of 33 PageID 607
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`and open proceedings wherever possible. The Order is also subject to the Local Rules of this
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`District and the Federal Rules of Civil Procedure on matters of procedure and calculation of time
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`periods.
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`2.
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`. A party may designate documents that it produces as
`Form and Timing of Designation
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`confidential and restricted in disclosure under this Order by placing or affixing the words
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`“CONFIDENTIAL - SUBJECT TO PROTECTIVE ORDER” (hereinafter referred to as
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`“CONFIDENTIAL”) or “ATTORNEYS EYES ONLY - SUBJECT TO PROTECTIVE ORDER”
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`(hereinafter referred to as “ATTORNEYS EYES ONLY”) or “HIGHLY CONFIDENTIAL –
`SOURCE CODE – SUBJECT TO PROTECTIVE ORDER” (hereinafter referred to as “HIGHLY
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`CONFIDENTIAL - SOURCE CODE”) on the document in a manner that will not interfere with
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`the legibility of the document and that will permit complete removal of the designation.
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`Documents shall be designated prior to or at the time of the production or disclosure of the
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`documents.
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`When a tangible object is produced for inspection subject to protection under this Order, a
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`photograph thereof shall be produced at the time of inspection labeled with the designation
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE. Thereafter any information learned or obtained as a result of the inspection shall be subject
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`to protection under this Order in accordance with the applicable designation. When electronically
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`stored information is produced which cannot itself be marked with the designation
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE, the physical media on which such electronically stored information is produced shall be
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`marked with the applicable designation. The party receiving such electronically stored information
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`shall then be responsible for labeling any copies that it creates thereof, whether electronic or paper,
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`6
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 7 of 33 PageID 608
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`with the applicable designation. By written stipulation the parties may agree temporarily to
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`designate original documents that are produced for inspection CONFIDENTIAL, ATTORNEYS
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`EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE even though the original
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`documents being produced have not themselves been so labeled. All information learned in the
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`course of such an inspection shall be protected in accordance with the stipulated designation. The
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`copies of documents that are selected for copying during such an inspection shall be marked
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE as required under this Order and thereafter the copies shall be subject to protection under
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`this Order in accordance with their designation. The designation of documents for protection under
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`this Order does not mean that the document has any status or protection by statute or otherwise
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`except to the extent and for the purposes of this Order.
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`3.
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`Documents Which May be Designated CONFIDENTIAL
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`. Any party may designate
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`documents as CONFIDENTIAL upon making a good faith determination that the documents
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`contain information protected from disclosure by statute or that should be protected from
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`disclosure as confidential business or personal information, medical or psychiatric information,
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`trade secrets, personnel records, or such other sensitive commercial information that is not
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`publicly available. Public records and documents that are publicly available may not be designated
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`for protection under this Order.
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`4.
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`Documents Which May be Designated ATTORNEYS EYES ONLY. Any party may
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`designate documents as ATTORNEYS EYES ONLY upon making a good faith determination that
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`the documents contain information protected from disclosure by statute or that should be protected
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`from disclosure as trade secrets or other highly sensitive business or personal information, the
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`7
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 8 of 33 PageID 609
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`disclosure of which is likely to cause significant harm to an individual or to the business or
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`competitive position of the designating party.
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`5.
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`Documents Which May be Designated HIGHLY CONFIDENTIAL - SOURCE
`
`CODE
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`. Any party may designate documents as HIGHLY CONFIDENTIAL - SOURCE CODE
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`upon making a good faith determination that the items contain extremely sensitive information or
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`items representing computer source code and associated comments, including any documents
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`containing source code.
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`6.
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`Depositions. Deposition testimony shall be deemed CONFIDENTIAL, ATTORNEYS
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`EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE only if designated as such. Such
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`designation shall be specific as to the portions of the transcript or any exhibit designated for
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`protection under this Order. Thereafter, the deposition testimony and exhibits so designated shall
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`be protected, pending objection, under the terms of this Order. By stipulation read into the record
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`the parties may agree temporarily to designate an entire deposition and the exhibits used therein for
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`protection under this Order pending receipt and review of the transcript. In such a circumstance,
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`the parties shall review the transcript within thirty (30) days of the receipt thereof and specifically
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`designate the testimony and exhibits that will be protected under this Order. Thereafter only the
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`specifically designated testimony and exhibits shall be protected under the terms of this Order.
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`Alternatively, a designating party may specify, at the deposition or up to thirty (30) days
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`afterwards if that period is properly invoked, that the entire transcript shall be treated as
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE. Transcripts containing CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY
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`CONFIDENTIAL - SOURCE CODE shall have an obvious legend on the title page that the
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`transcript contains CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 9 of 33 PageID 610
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`CONFIDENTIAL - SOURCE CODE, and the title page shall be followed by a list of all pages
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`(including line numbers as appropriate) that have been designated as CONFIDENTIAL,
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`ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE and the level of
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`protection being asserted by the designating party. The designating party shall inform the court
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`reporter of these requirements. Any transcript that is prepared before the expiration of a thirty (30)
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`day period for designation shall be treated during that period as if it had been designated
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE
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`CODE in its entirety unless otherwise agreed. After the expiration of that period, the transcript
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`shall be treated only as actually designated.
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`7.
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`Protection of Confidential Material
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`.
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`(a) Protection of Documents Designated CONFIDENTIAL. Documents designated
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`CONFIDENTIAL under this Order shall not be used for any purpose whatsoever other than the
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`prosecution or defense of this action, and of any appeal thereof. The parties and counsel for the
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`parties shall not disclose or permit the disclosure of any documents designated CONFIDENTIAL
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`to any person or entity except as set forth in subparagraphs (1)-(7). Subject to these requirements,
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`the following categories of persons may be allowed to review documents that have been
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`designated CONFIDENTIAL.
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`
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`(1) Outside Counsel of Record. Outside counsel of record for the parties and
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`employees of counsel who have responsibility for the preparation and trial of the
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`action.
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`(2)
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`Parties. Not more than two (2) representatives of the receiving party who are
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`officers or employees of the receiving party or its corporate parents, subsidiaries,
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`and subsidiaries of parents, who may be, but need not be, in-house counsel for the
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`9
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 10 of 33 PageID 611
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`receiving party, as well as their immediate paralegals and staff, and who are either
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`responsible for making decisions dealing directly with the litigation in these actions
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`or who is assisting outside counsel in preparation for proceeding in these actions.
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`The Court
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`. The Court and its personnel, a court appointed mediator, and the jury.
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`Court Reporters and Recorders
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`. Court reporters and recorders engaged for
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`(3)
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`(4)
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`depositions.
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`(5)
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`Persons Creating or Receiving Documents
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`. Any person who authored or recorded
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`the designated document, and any person who has previously seen or was aware of
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`the designated document.
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`(6)
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`Experts
`. Experts retained by the parties or counsel for the parties to assist in the
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`preparation and trial of this action or proceeding, but only if (a) such person is not a
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`current employee of a party or of a party’s competitor, (b) at the time of retention,
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`such person is not anticipated to become an employee of a party or of a party’s
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`competitor, (c) disclosure to such person is reasonably necessary for this litigation,
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`(d) after such persons have completed the certification contained in Attachment A,
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`Acknowledgment of Understanding and Agreement to Be Bound and (e) after the
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`procedures set forth in paragraph 7(d) below, have been followed.
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`(7)
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`Others by Consent
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`. Other persons only by written consent of the designating party
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`or upon order of the Court and on such conditions as may be agreed or ordered. All
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`such persons shall execute the certification contained in Attachment A,
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`Acknowledgment of Understanding and Agreement to Be Bound.
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`(b) Protection of Documents Designated ATTORNEYS EYES ONLY and HIGHLY
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`CONFIDENTIAL - SOURCE CODE. Documents designated ATTORNEYS EYES ONLY or
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`10
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 11 of 33 PageID 612
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`HIGHLY CONFIDENTIAL - SOURCE CODE under this Order shall not be used for any purpose
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`whatsoever other than the prosecution or defense of this action, and of any appeal thereof. The
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`parties and counsel for the parties shall not disclose or permit the disclosure of any documents
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`designated ATTORNEYS EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE CODE to any
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`person or entity except as set forth in subparagraphs (1)-(6). Subject to these requirements, the
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`following categories of persons may be allowed to review documents that have been designated
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`ATTORNEYS EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE CODE.
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`
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`(1) Outside Counsel of Record. Outside counsel of record for the parties and
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`employees of counsel who have responsibility for the preparation and trial of the
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`action.
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`(2)
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`(3)
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`The Court
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`. The Court and its personnel, a court appointed mediator, and the jury.
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`. Court reporters and recorders engaged for
`Court Reporters and Recorders
`depositions. Court reporters may not retain any copy of HIGHLY
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`CONFIDENTIAL - SOURCE CODE.
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`(4)
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`Persons Creating or Receiving Documents
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`. Any person who authored or recorded
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`the designated document, and any person who has previously seen or was
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`previously aware of the designated document, but only at a deposition, hearing or
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`trial.
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`(5)
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`Experts. Experts retained by the parties or counsel for the parties to assist in the
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`preparation and trial of this action or proceeding, but only if (a) such person is not a
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`current employee of a party or of a party’s competitor, (b) at the time of retention,
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`such person is not anticipated to become an employee of a party or of a party’s
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`competitor, (c) disclosure to such person is reasonably necessary for this litigation;
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`11
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 12 of 33 PageID 613
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`(d) after such persons have completed the certification contained in Attachment A,
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`Acknowledgment of Understanding and Agreement to Be Bound; and (e) after the
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`procedures set forth in paragraph 7(d) below, have been followed.
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`(6) Others by Consent
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`. Other persons only by written consent of the designating party
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`or upon order of the Court and on such conditions as may be agreed or ordered. All
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`such persons shall execute the certification contained in Attachment A,
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`Acknowledgment of Understanding and Agreement to Be Bound.
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`For the avoidance of doubt, a receiving party may not disclose or use another party’s
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`CONFIDENTIAL, ATTORNEYS EYES ONLY or HIGHLY CONFIDENTIAL - SOURCE
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`CODE information in any other proceeding (including another state or federal lawsuit or
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`administrative proceeding) without the express consent of the disclosing party.
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`(c) Disclosure to Designated In-House Counsel. Up to three (3) designated in-house
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`counsel responsible for the supervision of this action and any paralegals or clerical
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`employees assisting them in the litigation may receive documents produced by
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`Plaintiff that have been designated CONFIDENTIAL or ATTORNEYS EYES
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`ONLY if disclosure is reasonably necessary for this litigation and they have
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`completed the certification contained in Attachment A, Acknowledgment of
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`Understanding and Agreement to Be Bound. In-house counsel for the Defendant
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`and their paralegals and clerical employees under this paragraph (as well as any
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`other employee of the Defendant) shall not have access to any CONFIDENTIAL or
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`ATTORNEYS EYES ONLY documents produced by any other Defendant in the
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`co-pending B.E. Technology matters unless otherwise ordered by the court or
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`agreed to in writing by the designating party. Without written consent from the
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`12
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 13 of 33 PageID 614
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`designating party, no employee of any party may have access to any HIGHLY
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`CONFIDENTIAL - SOURCE CODE documents of another party designated under
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`this Order.
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`(d) Disclosure to Experts. A receiving party shall not disclose or permit the disclosure of
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`any documents designated CONFIDENTIAL, ATTORNEYS EYES ONLY or
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`HIGHLY CONFIDENTIAL - SOURCE CODE to any Expert unless otherwise
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`ordered by the court or agreed to in writing by the designating party or as set forth
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`below:
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`(1) A party that seeks to disclose to an Expert any information or item that has been
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`designated CONFIDENTIAL, ATTORNEYS EYES ONLY or HIGHLY
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`CONFIDENTIAL - SOURCE CODE must first make a written request to the
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`designating party that (1) identifies whether or not the receiving party seeks
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`permission to disclose HIGHLY CONFIDENTIAL - SOURCE CODE to the
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`Expert, (2) sets forth the full name of the Expert and the city and state of his or her
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`primary residence, (3) attaches a copy of the Expert’s current resume, (4) identifies
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`the Expert’s current employer(s) and employers over the last five years, (5)
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`identifies all consulting work over the past five years (if such consulting work is
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`confidential in nature such that the Expert is not permitted to disclose the
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`engagement, the Expert must report a general description of the consulting
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`engagement and the type of technology at issue), and (6) identifies (by name and
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`number of the case, filing date, and location of court) any litigation in connection
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`with which the Expert has offered expert testimony, including through a
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`declaration, report, or testimony at a deposition or trial, during the preceding five
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 14 of 33 PageID 615
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`years, and (7) identifies any patents or patent applications in which the Expert is
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`identified as an inventor or applicant, is involved in prosecuting or maintaining, or
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`has any pecuniary interest (if the patents or patent applications are not publicly
`
`available, the Expert must provide a description of the field of technology they
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`relate to).
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`(2)
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`A party that makes a request and provides the information specified in the
`
`preceding respective paragraphs may disclose the subject CONFIDENTIAL,
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`ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL - SOURCE CODE
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`documents to the identified Expert unless, within 10 days of delivering the request,
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`the party receives a written objection from the designating party. Any such
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`objection must set forth in detail the grounds on which it is based.
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`(3) A party that receives a timely written objection must meet and confer with the
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`designating party (through direct voice to voice dialogue) to try to resolve the
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`matter by agreement within seven days of the written objection.
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`(4)
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`If no agreement is reached, the party objecting to the disclosure to the identified
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`Expert may file a motion as provided in Civil Local Rule 7.2 seeking an order from
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`the court to prevent such disclosure. Any such motion must describe the
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`circumstances with specificity, set forth in detail the basis of the objection and the
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`risk of harm that the disclosure would entail. In addition, any such motion must be
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`accompanied by a competent declaration describing the parties’ efforts to resolve
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`the matter by agreement (i.e., the extent and the content of the meet and confer
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`discussions) and setting forth the reasons advanced by the designating party for its
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`refusal to approve the disclosure. Any such motion must be filed within seven
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`business days after the meet and confer provided for by section (3), or the
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`objections will be deemed withdrawn and the receiving party may disclose
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`CONFIDENTIAL, ATTORNEYS EYES ONLY, or HIGHLY CONFIDENTIAL –
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`SOURCE CODE documents to the expert.
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`(d) Disclosure to Professional Vendors. To the extent necessary to prepare for a hearing
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`or trial, professional litigation support vendors, including copy, graphics, translation, database,
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`trial support and/or trial consulting services (“Professional Vendor”), may access
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`CONFIDENTIAL or ATTORNEYS EYES ONLY documents after completion of the
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`certification contained in Attachment A, Acknowledgment of Understanding and Agreement to Be
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`Bound.
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`(e) Mock Jurors. Mock jurors hired by trial consultants in connection with this litigation
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`may only be told about or shown CONFIDENTIAL or ATTORNEYS EYES ONLY documents
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`provided: (1) they are not affiliated with any party to this case, their direct competition, or a named
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`defendant in any of the related B.E. actions. To determine whether a juror is affiliated with a direct
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`competitor of a certain Defendant, each juror will be asked in a juror questionnaire whether they
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`are affiliated with a direct competitor of the relevant Defendants; (2) they do not work in the area
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`of Internet advertising or online marketplaces; (3) they agree in writing to be bound by
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`confidentiality; and (4) they are not themselves given custody of any documents, nor permitted to
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`remove any presentations, questionnaires or notes taken during the exercise from any room in
`
`which the research is conducted. Parties may not show mock jurors any HIGHLY
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`CONFIDENTIAL - SOURCE CODE documents.
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`
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 16 of 33 PageID 617
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`(f) Source Code. Any source code produced by a party in discovery shall only be made
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`available for inspection (not produced except as provided for below), in an electronic format
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`allowing it to be reasonably reviewed and searched, using the following procedures:
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`1. If source code is produced, the source code shall be made available for
`
`inspection during normal business hours or at other mutually agreeable times,
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`at one of the following locations chosen at the sole discretion of the designating
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`party: (a) an office of the designating party’s outside counsel of record; or (b)
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`another mutually agreed upon location. Once the source code computers are set
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`up and loaded with the source code, the requesting party shall give the
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`designating party at least 7 days’ notice of any proposed inspection.
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`2. The source code shall be made available for inspection on a single, secured,
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`password-protected computer in a secured room without Internet access or
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`network access to other computers. The receiving party shall not copy, remove,
`
`or otherwise transfer any portion of the source code onto any recordable media
`
`or recordable device. Use or possession of any input/output device (e.g., USB
`
`memory stick, cameras or any camera-enabled device, CDs, floppy disk,
`
`portable hard drive, laptop, cell phone, etc.) is prohibited while accessing the
`
`computer containing the Source Code. All persons entering the locked room
`
`containing the Source Code must agree to submit to reasonable security
`
`measures to ensure they are not carrying any prohibited items before they will
`
`be given access to the locked room. The designating party may visually
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`monitor the activities of the receiving party’s representatives during any source
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`
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 17 of 33 PageID 618
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`code review, but only to ensure that there is no unauthorized recording,
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`copying, or transmission of the source code.
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`3. The designating party shall provide a backup secure computer within one
`
`business day in the event that the primary secure computer fails or otherwise
`
`suffers technical problems impeding the inspection.
`
`4. The receiving party's outside counsel and/or experts may request that
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`commercially available licensed software tools for viewing and searching
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`Source Code be installed on the secured computer. The receiving party must
`
`provide the designating party with the CD or DVD containing the agreed upon
`
`software tool(s) at least four business days in advance of the inspection. The
`
`tools may not allow the source code to be compiled. The designating party may
`
`object to such tools, and the parties shall meet and confer in good faith.
`
`5. The receiving party’s outside counsel and/or expert shall be entitled to take
`
`notes relating to the Source Code but may not copy any portion of the Source
`
`Code into the notes. No copies of all or any portion of the Source Code may
`
`leave the room in which the Source Code is inspected except as otherwise
`
`provided herein. Further, no other written or electronic record of the Source
`
`Code is permitted except as otherwise provided herein.
`
`6. A list of names of persons who will inspect the Source Code will be provided to
`
`the designating party in conjunction with any written (including email) notice
`
`requesting inspection.
`
`7. Unless otherwise agreed in advance by the parties in writing, following each
`
`inspection, the receiving party’s outside counsel and/or experts shall remove all
`
`
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 18 of 33 PageID 619
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`notes and documents from the room that may contain work product and/or
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`attorney-client privileged information. The designating party shall not be
`
`responsible for any items left in the room following each inspection session.
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`No person shall copy, e-mail, transmit, upload, download, print, photograph or otherwise
`
`duplicate any portion of the designated Source Code, unless explicitly permitted by this Order. The
`
`receiving party may request printed paper copies of limited portions of the Source Code, subject to
`
`the following provisions:
`
`1. All paper copies of Source Code excerpts shall be produced by the designating
`
`party within 5 business days of the request (unless additional time is needed due
`
`to the volume requested). The designating party shall provide all such source
`
`code excerpts in paper form, including bates numbers and the label “HIGHLY
`
`CONFIDENTIAL – SOURCE CODE.” At the inspecting party’s request, up to
`
`two additional sets (or subsets) of printed Source Code excerpts may be
`
`requested and provided by the designating party in a timely fashion.
`
`2. The portions of the Source Code selected for printing shall be limited to those
`
`portions that are believed to be reasonably necessary for the preparation of
`
`court filings, pleadings, expert reports, or other papers, or for deposition or trial.
`
`3. The receiving party shall not request paper copies for the purpose of reviewing
`
`the source code. The receiving party may not request paper copies of more than
`
`40 consecutive pages, or an aggregate total of more than 400 pages or 800 pages
`
`if multiple patents are asserted against the designating party, of Source Code
`
`during the duration of the case without prior written approval by the
`
`designating party.
`
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 19 of 33 PageID 620
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`4. In the event of a dispute over the amount of source code to be produced –i.e. if
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`the designating party believes that the requested printouts are excessive, or if
`
`the receiving party believes that additional portions of source code are needed
`
`for adequate case preparation, the parties shall meet and confer in an attempt to
`
`resolve their dispute. In the event that the dispute cannot be resolved, either
`
`party may file a motion, pursuant to Local Rule 7.1, seeking to obtain the
`
`desired relief. The party seeking relief from the provisions of this order shall
`
`bear the burden of showing good cause for doing so.
`
`5. Any printed pages of Source Code, and any other documents or things reflecting
`
`Source Code that have been designated by the designating party as HIGHLY
`
`CONFIDENTIAL – SOURCE CODE may not be copied, digitally imaged or
`
`otherwise duplicated, except in limited excerpts necessary to attach as exhibits
`
`to depositions, expert reports, or court filings to the extent permitted below.
`
`6. The receiving party shall maintain all paper copies of any printed portions of the
`
`source code and any notes related to source code in a secured, locked area under
`
`the direct supervision of outside counsel for that party. The paper copies shall
`
`be stored or viewed only at (i) the offices of outside counsel for the receiving
`
`party, (ii) the site where any deposition is taken (iii) the Court; or (iv) any
`
`intermediate secure location necessary to transport the information to a hearing,
`
`trial or deposition. The source code shall also be kept in a locked container
`
`when not in use. The receiving party shall not create any electronic or other
`
`images of the paper copies and shall not convert any of the information
`
`contained in the paper copies into any electronic format except as provided for
`
`in Section 9 below.
`
`7. The receiving party shall only make additional paper copies of relevant portions
`
`of the source code to the extent such limited additional copies are (1) necessary
`
`to prepare court filings, pleadings, or other papers (including a testifying
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`Case 2:12-cv-02833-JPM-tmp Document 67 Filed 03/07/14 Page 20 of 33 PageID 621
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`expert’s expert report), (2) necessary for deposition, or (3) otherwise necessary
`
`for the preparation of its case, and at all times subject to the other protections
`
`provided in this Section. Any paper copies used during a deposition shall be
`
`retrieved by the party producing source code at the end of each day and must
`
`not be given to or left with a court reporter or any other unauthorized individual.
`
`8. The receiving party’s outside counsel shall maintain a log of all copies of the
`
`Source Code (received from a designating party). The log shall include the
`
`names of the recipients and reviewers of copies, and locations where the copies
`
`are stored. Upon request by the designating party, the receiving party shall
`
`provide reasonable assurances and/or descriptions of the security measures
`
`employed by the receiving party and/or qualified person that receives a copy of
`
`any portion of the Source Code
`
`9. Except as provided in this paragraph, the receiving party may not create
`
`electronic images or any other images, of the