Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 1 of 24 PageID #: 711
`Case 2:17-cv—00140-RWS—RSP Document 36-2 Filed 08/09/17 Page 1 of 24 PageID #: 711
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`EXHIBIT B
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`EXHIBIT B
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 2 of 24 PageID #: 712
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`CYWEE GROUP LTD.,
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`Plaintiff,
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`SAMSUNG ELECTRONICS CO., LTD. AND
`SAMSUNG ELECTRONICS AMERICA, INC.
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`Defendants.
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` CASE NO. 2:17-cv-00140-RWS-RSP
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`JURY TRIAL DEMANDED
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`[PROPOSED] PROTECTIVE ORDER
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`WHEREAS, Plaintiff CyWee Group Ltd. (“Plaintiff”) and Defendants Samsung
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`Electronics Co. Ltd. and Samsung Electronics America Inc. (collectively “Defendants”), hereafter
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`referred to as “the Parties,” believe that certain information that is or will be encompassed by
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`discovery demands by the Parties involves the production or disclosure of trade secrets,
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`confidential business information, or other proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance
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`with Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`Each Party may designate as confidential for protection under this Order, in whole or in
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`part, any document, information or material that constitutes or includes, in whole or in
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`part, confidential or proprietary information or trade secrets of the Party or entities and
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`individuals who are not parties to this Action (“Third Parties”) to whom the Party
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`reasonably believes it owes an obligation of confidentiality with respect to such
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`document, information or material (“Protected Material”). Protected Material shall be
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`designated by the Party producing it by affixing a legend or stamp on such document,
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`1
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 3 of 24 PageID #: 713
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`information or material as follows: “CONFIDENTIAL.” The word “CONFIDENTIAL”
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`shall be placed clearly on each page of the Protected Material (except deposition and
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`hearing transcripts) for which such protection is sought. For deposition and hearing
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`transcripts, the words “CONFIDENTIAL” or “RESTRICTED – ATTORNEYS’ EYES
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`ONLY” or “RESTRICTED – CONFIDENTIAL SOURCE CODE” shall be placed on the
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`cover page of the transcript (if not already present on the cover page of the transcript
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`when received from the court reporter) by each attorney receiving a copy of the transcript
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`after that attorney receives notice of said designation of some or all of that transcript.
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`2.
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`Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of this
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`Order with a designation explicitly identifying outside counsel—such as but not limited
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`to “Confidential - Outside Counsel’s Eyes Only” and “Confidential - Outside Attorneys’
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`Eyes Only”—shall receive the same treatment as if designated “RESTRICTED -
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`ATTORNEYS’ EYES ONLY” under this Order, unless and until such document is
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`redesignated to have a different classification under this Order.
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`3.
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`With respect to documents, information or material designated “CONFIDENTIAL” or
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`“RESTRICTED - ATTORNEYS’ EYES ONLY” or “RESTRICTED - CONFIDENTIAL
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`SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the provisions herein and
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`unless otherwise stated, this Order governs, without limitation: (a) all documents,
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`electronically stored information, and/or things as defined by the Federal Rules of Civil
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`Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as
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`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the class of materials
`designated as “CONFIDENTIAL” or “RESTRICTED - ATTORNEYS’ EYES ONLY” or “RESTRICTED -
`CONFIDENTIAL SOURCE CODE” both individually and collectively.
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`2
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 4 of 24 PageID #: 714
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`exhibits or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to
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`pleadings and other court filings; (d) affidavits; and (e) stipulations. All copies,
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`reproductions, extracts, digests and complete or partial summaries prepared from any
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`DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and
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`treated as such under this Order.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL” or “RESTRICTED -
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`ATTORNEYS’ EYES ONLY” or “RESTRICTED - CONFIDENTIAL SOURCE
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`CODE”) may be made at any time. Inadvertent or unintentional production of documents,
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`information or material that has not been designated as DESIGNATED MATERIAL
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`shall not be deemed a waiver in whole or in part of a claim for confidential treatment.
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`Any party that inadvertently or unintentionally produces Protected Material without
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`designating it as DESIGNATED MATERIAL may request destruction of that Protected
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`Material by notifying the recipient(s), as soon as reasonably possible after the producing
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`Party becomes aware of the inadvertent or unintentional disclosure, and providing
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`replacement Protected Material that is properly designated. The recipient(s) shall then
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`destroy all copies of the inadvertently or unintentionally produced Protected Materials
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`and any documents, information or material derived from or based thereon.
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`5.
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`“CONFIDENTIAL” documents, information and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating
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`party, upon order of the Court, or as set forth in paragraph 12 herein:
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`(a)
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`(b)
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`outside counsel of record in this Action for the Parties;
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`employees of such counsel assigned to and reasonably necessary to assist such
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`counsel in the litigation of this Action;
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`3
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 5 of 24 PageID #: 715
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`(c)
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`in-house counsel for the Parties who either have responsibility for making
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`decisions dealing directly with the litigation of this Action, or who are assisting
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`outside counsel in the litigation of this Action;
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`(d)
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`up to and including three (3) designated representatives of each of the Parties to
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`the extent reasonably necessary for the litigation of this Action, except that either
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`party may in good faith request the other party’s consent to designate one or more
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`additional representatives, the other party shall not unreasonably withhold such
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`consent, and the requesting party may seek leave of Court to designate such
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`additional representative(s) if the requesting party believes the other party has
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`unreasonably withheld such consent;
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`(e)
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`outside consultants or experts (i.e., not existing employees or affiliates of a Party
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`or an affiliate of a Party) retained for the purpose of this litigation, provided that:
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`(1) such consultants or experts are not presently employed by the Parties hereto
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`for purposes other than this Action or other lawsuits or post-grant proceedings
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`involving the same Party; and (2) before access is given, the consultant or expert
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`has completed the Undertaking attached as Exhibit A hereto and the same is
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`served upon the producing Party with a current curriculum vitae of the consultant
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`or expert at least ten (10) days before access to the Protected Material is to be
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`given to that consultant or Undertaking to object to and notify the receiving Party
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`in writing that it objects to disclosure of Protected Material to the consultant or
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`expert. The Parties agree to promptly confer and use good faith to resolve any
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`such objection. If the Parties are unable to resolve any objection, the objecting
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`Party may file a motion with the Court within fifteen (15) days of the notice, or
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`4
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 6 of 24 PageID #: 716
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`within such other time as the Parties may agree, seeking a protective order with
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`respect to the proposed disclosure. The objecting Party shall have the burden of
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`proving the need for a protective order. No disclosure shall occur until all such
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`objections are resolved by agreement or Court order;
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`(f)
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`independent litigation support services, including persons working for or as court
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`reporters, graphics or design services, jury or trial consulting services, and
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`photocopy, document imaging, and database services retained by counsel and
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`reasonably necessary to assist counsel with the litigation of this Action; and
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`(g)
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`the Court and its personnel.
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`6.
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`A Party shall designate documents, information or material as “CONFIDENTIAL” only
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`upon a good faith belief that the documents, information or material contains confidential
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`or proprietary information or trade secrets of the Party or a Third Party to whom the Party
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`reasonably believes it owes an obligation of confidentiality with respect to such
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`documents, information or material.
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`7.
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`Documents, information or material produced pursuant to any discovery request in this
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`Action, including but not limited to Protected Material designated as DESIGNATED
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`MATERIAL, shall be used by the Parties only in the litigation of this Action and shall
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`not be used for any other purpose. Any person or entity who obtains access to
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`DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not
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`make any copies, duplicates, extracts, summaries or descriptions of such DESIGNATED
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`MATERIAL or any portion thereof except as may be reasonably necessary in the
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`litigation of this Action. Any such copies, duplicates, extracts, summaries or descriptions
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`5
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 7 of 24 PageID #: 717
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`shall be classified DESIGNATED MATERIALS and subject to all of the terms and
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`conditions of this Order.
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`8.
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`To the extent a producing Party believes that certain Protected Material qualifying to be
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`designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
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`limitation, the producing Party may designate such Protected Material “RESTRICTED -
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`ATTORNEYS’ EYES ONLY” or to the extent such Protected Material includes
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`proprietary or trade secret computer source code, scripts, assembly code, binaries, object
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`code, source code listings, descriptions of source code, object code listings, or
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`descriptions of object code (“Source Code Material”), the producing Party may designate
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`such Protected Material as “RESTRICTED - CONFIDENTIAL SOURCE CODE.”
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`Neither publicly available source code nor source code that is disclosed to third-parties
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`without a non-disclosure agreement (or similar protection) may be designated as
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`“RESTRICTED - CONFIDENTIAL SOURCE CODE.”
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`9.
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`For Protected Material designated RESTRICTED - ATTORNEYS’ EYES ONLY, access
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`to, and disclosure of, such Protected Material shall be limited to individuals listed in
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`paragraphs 5(a-b) and (e-g).
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`10.
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`For Protected Material designated RESTRICTED - CONFIDENTIAL SOURCE CODE,
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`the following additional restrictions apply:
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`(a)
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`Access to a Party’s Source Code Material shall be provided only on a password
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`protected, “stand-alone” computer(s) (that is, the computer may not be linked to
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`any network, including a local area network (“LAN”), an intranet or the Internet)
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`and on which all access ports have been disabled (except for one printer port).
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`The computer shall be located in a secured room (“Source Code Review Room”).
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`6
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 8 of 24 PageID #: 718
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`Additionally, except as provided in paragraph 10(s) below, the stand-alone
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`computer(s) may only be located at the offices of the producing Party’s outside
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`counsel. To reduce travel time for both parties, Defendants will make source code
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`available for inspection at its outside counsels’ office at Paul Hastings LLP, 1170
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`Peachtree Street, N.E., Suite 100, Atlanta, GA 30309 and Plaintiff will make
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`source code available for inspection in San Diego, California.
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`(b)
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`The receiving Party shall make reasonable efforts to restrict its requests for such
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`access to the stand-alone computer(s) to normal business hours, which for
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`purposes of this paragraph shall be 8:00 a.m. through 6:00 p.m. However, upon
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`reasonable notice from the receiving party, the producing Party shall make
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`reasonable efforts to accommodate the receiving Party’s request for access to the
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`stand-alone computer(s) outside of normal business hours. The Parties agree to
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`cooperate in good faith such that maintaining the producing Party’s Source Code
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`Material at the offices of its outside counsel shall not unreasonably hinder the
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`receiving Party’s ability to efficiently and effectively conduct the prosecution or
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`defense of this Action;
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`(c)
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`The producing Party shall provide the receiving Party with information explaining
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`how to start, log on to, and operate the stand-alone computer(s) in order to access
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`the produced Source Code Material on the stand-alone computer(s);
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`(d)
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`The producing Party will produce Source Code Material in computer searchable
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`format on the stand-alone computer(s) as described above;
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`(e)
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`No recordable media or recordable devices, including without limitation sound
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`recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
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`7
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 9 of 24 PageID #: 719
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`DVDs, or drives of any kind, shall be permitted into the Source Code Review
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`Room absent agreement of the producing Party. For example, the producing Party
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`may, at its option, allow such devices into the Source Code Review Room if such
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`devices are turned off.
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`(f)
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`The Receiving Party’s outside counsel and/or experts shall be entitled to take
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`notes relating to the Source Code but may not copy substantial portions of the
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`Source Code into the notes and may not take such notes electronically on the
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`Source Code Computer itself or any other computer. For purposes of this
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`provision, fifteen or more continuous lines of code and fifty total lines of code are
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`“substantial.”
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`(g)
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`The Producing Party may visually monitor the activities of the Receiving Party’s
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`representatives during any Source Code review, but only to ensure that no
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`unauthorized electronic records of the Source Code and no information
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`concerning the Source Code are being created or transmitted in any way. Other
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`than the visual monitoring described above, the Producing Party may not monitor
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`or record via any electronic or any other means the activities of the Receiving
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`Party's representatives during any Source Code review;
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`(h)
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`The receiving Party’s outside counsel and/or experts may make reasonable
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`requests that free, shareware, or commercially available software tools for
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`viewing and searching Source Code be installed on the secured computer,
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`provided, however, that (a) the receiving Party possesses an appropriate license to
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`such software tools if needed, and (b) the producing Party approves such software
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`tools, provided that the producing Party will not unreasonably withhold such
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`8
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 10 of 24 PageID #: 720
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`approval. The receiving Party must provide the producing Party with the CD,
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`DVD, and/or necessary download information for the additional software tool(s)
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`at least ten days in advance of the date upon which the receiving Party wishes to
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`have the additional software tool(s) available for use on the Source Code
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`Computer. For any request made less than ten days in advance of the date upon
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`which the receiving Party wishes to have the additional software tool(s) available
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`for use on the Source Code Computer, the producing Party will make reasonable
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`efforts to meet the request.
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`(i)
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`Proper identification of all authorized persons shall be provided prior to any
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`access to the secure room or the computer containing Source Code. Proper
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`identification requires showing, at a minimum, a photo identification card
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`sanctioned by the government of any State of the United States, by the
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`government of the United States, or by the nation state of the authorized person’s
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`current citizenship. Access to the secure room or the Source Code Computer may
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`be denied, at the discretion of the supplier, to any individual who fails to provide
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`proper identification;
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`(j)
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`All persons who will review a Producing Party’s Source Code on the Source Code
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`Computer on behalf of a Receiving Party, including members of a Receiving
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`Party’s outside law firm, shall be identified in writing to the Producing Party at
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`seven (7) days in advance of the first time that such person reviews Source Code
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`on the Source Code Computer. Such identification shall be in addition to any
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`other disclosure required under this Order. All persons viewing Source Code on
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`the Source Code Computer shall sign on each day they view Source Code a log
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`9
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 11 of 24 PageID #: 721
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`that will include the names of persons who view the Source Code on the Source
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`Code Computer and when they enter and depart. The receiving Party shall
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`maintain the log. The Producing Party shall be entitled to a copy of the log upon
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`five (5) day’s advance notice to the Receiving Party;
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`(k)
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`Unless otherwise agreed in advance by the Parties in writing, following each day
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`on which inspection is done under this Order, the Receiving Party’s outside
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`counsel and/or experts shall remove all notes, documents, and all other materials
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`from the Source Code Review Room. The Producing Party shall not be
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`responsible for any items left in the room following each inspection session, and
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`the Receiving Party shall have no expectation of confidentiality for any items left
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`in the room following each inspection session without a prior agreement to that
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`effect;
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`(l)
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`Access to Protected Material designated RESTRICTED - CONFIDENTIAL
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`SOURCE CODE shall be limited to outside counsel and up to three (3) outside
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`consultants or experts2 (i.e., not existing employees or affiliates of a Party or an
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`affiliate of a Party) retained for the purpose of this litigation and approved to
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`access such Protected Materials pursuant to paragraph 5(e) above. A receiving
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`Party may include excerpts of Source Code Material in a pleading, exhibit, expert
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`report, discovery document, deposition transcript, infringement contentions,
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`invalidity contentions, or other Court document or document that is served on or
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`provided to opposing counsel (“Source Code Documents”) provided that these
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`2 For the purposes of this paragraph, an outside consultant or expert is defined to include the outside consultant’s or
`expert’s direct reports and other support personnel, such that the disclosure to a consultant or expert who employs
`others within his or her firm to help in his or her analysis shall count as a disclosure to a single consultant or expert.
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`10
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 12 of 24 PageID #: 722
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`Source Code Documents are appropriately marked under this Order, restricted to
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`those who are entitled to have access to them as specified herein, and, if filed with
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`the Court, filed under seal in accordance with the Court’s rules, procedures and
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`orders;
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`(m) A receiving Party may include excerpts of Source Code Material in a pleading,
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`exhibit, expert report, discovery document, deposition transcript, infringement
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`contentions, invalidity contentions, or other Court document or document that is
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`served on or provided to opposing counsel, provided that the Source Code
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`Documents are appropriately marked under this Order, restricted to those who are
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`entitled to have access to them as specified herein, and, if filed with the Court,
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`filed under seal in accordance with the Court’s rules, procedures and orders;
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`(n)
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`To the extent portions of Source Code Material are quoted in a Source
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`Code Document, either (1) the entire Source Code Document will be stamped and
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`treated as RESTRICTED - CONFIDENTIAL SOURCE CODE or (2) those pages
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`containing quoted Source Code Material will be separately stamped and treated
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`as RESTRICTED - CONFIDENTIAL SOURCE CODE;
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`(o)
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`Except as otherwise provided in this protective order, no electronic copies of
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`Source Code Material shall be made without prior written consent of the
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`producing Party, except as necessary to create documents which, pursuant to the
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`Court’s rules, procedures and orders, must be filed or served electronically. The
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`parties may include limited excerpts of Source Code Material in the body of e-
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`mails or in letter correspondence. Images or copies of excerpts of Source Code
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`Material shall not otherwise be included in the body of e-mails or in letter
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`11
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 13 of 24 PageID #: 723
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`correspondence between the Parties (references to production numbers shall be
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`used instead). If a Party reasonably believes that it needs to submit a portion of
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`Source Code as part of a filing with the Court, the Party shall make such a filing
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`while protecting the confidentiality of the Source Code. If a Producing Party
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`agrees to produce an electronic copy of all or any portion of its Source Code,
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`access to the Receiving Party’s submission, communication, and/or disclosure of
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`electronic files or other materials containing any portion of Source Code (paper or
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`electronic) shall at all times be limited solely to individuals who are expressly
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`authorized to view Source Code under the provisions of this Order. Additionally,
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`any such electronic copies must be labeled “RESTRICTED - CONFIDENTIAL
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`SOURCE CODE” as provided for in this order;
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`(p) Except as otherwise provided in this Protective Order, no physical copies of all or
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`any portion of the source code may leave the Source Code Review Room. The
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`producing Party shall make available a printer that may not be linked to any
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`network, including a LAN, an intranet or the Internet for on-site printing during
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`inspection of the Source Code. After reviewing source code, the receiving Party
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`may print paper copies of limited portions of source code that appear reasonably
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`necessary for the preparation of court filings, pleadings, expert reports,
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`infringement contentions, invalidity contentions, or other papers, or for
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`deposition or trial. If the receiving Party prints more than 15 (fifteen) pages of a
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`continuous block of code and/or 75 (seventy-five) pages total, the producing
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`Party is entitled to object to the production of pages in excess of these limits.
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`Upon printing any such portions of Source Code, the printed pages shall be
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`collected by the producing Party. Within ten (10) days, the producing Party shall
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`either (i) provide one copy set of such pages to the receiving Party or (ii) inform
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`the requesting Party that it objects that the printed portions are excessive. If, after
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`meeting and conferring, the producing Party and the receiving Party cannot
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`resolve the objection, the producing Party shall be entitled to seek a Court
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`resolution establishing why it should not comply with the request. The printed
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`pages of source code in question need not be produced to the requesting Party
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`until the objection is resolved by the Court. The printed pages shall constitute
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`part of the source code produced by the Producing Party in this action;
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`(q)
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`The receiving Party shall be permitted to make up to five (5) printed copies of
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`Source Code Material received from the producing Party, all of which shall be
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`designated and clearly labeled “RESTRICTED - CONFIDENTIAL SOURCE
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`CODE.” The copies are subject to the same protections set forth herein;
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`(r)
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`Should such printouts or photocopies be transferred back to electronic media,
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`such media shall be labeled “RESTRICTED - CONFIDENTIAL SOURCE
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`CODE” and shall continue to be treated as such;
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`(s)
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`For depositions, copies of Source Code that are marked as deposition exhibits
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`shall not be provided to the Court Reporter or attached to deposition transcripts;
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`rather, the deposition record will identify the exhibit by its production numbers.
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`All paper copies of Source Code brought to the deposition shall remain with the
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`Producing Counsel’s outside counsel for secure destruction in a timely manner
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`following the deposition.
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`13
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`(t)
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`If the receiving Party’s outside counsel, consultants, or experts obtain printouts or
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`photocopies of Source Code Material, the receiving Party shall ensure that such
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`outside counsel, consultants, or experts keep the printouts or photocopies in a
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`secured locked area in the offices of such outside counsel, consultants, or experts.
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`The receiving Party may also temporarily keep the printouts or photocopies at: (i)
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`the Court for any proceedings(s) relating to the Source Code Material, for the
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`dates associated with the proceeding(s); (ii) the sites where any deposition(s)
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`relating to the Source Code Material are taken, for the dates associated with the
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`deposition(s); and (iii) any intermediate location reasonably necessary to transport
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`the printouts or photocopies (e.g., a hotel prior to a Court proceeding or
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`deposition);
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`(u)
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`A producing Party’s Source Code Material may only be transported by the
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`receiving Party at the direction of a person authorized under paragraph 10(l)
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`above to another person authorized under paragraph 10(l) above, on paper or
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`removable electronic media (e.g., a DVD, CD-ROM, or flash memory “stick”) via
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`hand carry, Federal Express or other similarly reliable courier. Source Code
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`Material may not be transported or transmitted electronically over a network of
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`any kind, including a LAN, an intranet, or the Internet. Source Code Material may
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`only be transported electronically for the purpose of Court proceeding(s) or
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`deposition(s) as set forth in paragraph 10(s) above and is at all times subject to the
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`transport restrictions set forth herein. But, for those purposes only, the Source
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`Code Materials may be loaded onto a stand-alone computer as described in
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`paragraph 10(a). The provisions of this paragraph do not apply to excerpts of
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`14
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`Case 2:17-cv-00140-RWS-RSP Document 36-2 Filed 08/09/17 Page 16 of 24 PageID #: 726
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`Source Code Material included in a pleading, exhibit, expert report, discovery
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`document, deposition transcript, infringement contentions, invalidity contentions,
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`or other Court document or document that is served on or provided to opposing
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`counsel, as well as drafts of such documents;
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`(v)
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`The receiving Party shall keep a log including: (a) the custodian of each copy of
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`any Source Code Material and (b) the date and time any custodian receives or
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`returns the Source Code Material. Within forty five (45) calendar days after the
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`issuance of a final, non-appealable decision resolving all issues in the case, the
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`receiving Party must serve upon the producing Party the log and, either serve
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`upon the producing Party or certify the destruction of, all copies of the producing
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`Party’s Source Code Material; and
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`(w) No other copying or transcribing of Source Code Material is allowed beyond that
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`described in this Protective Order. No person shall copy, e-mail, transmit, upload,
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`download, print, photograph or otherwise duplicate any portion of the Source
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`Code Material, unless explicitly permitted by this Protective Order.
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`(x)
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`Any source code shall be made available for inspection as it is kept in the
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`ordinary course of business. Optionally, and only upon agreement by the
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`receiving Party, source code can be produced in a non-native format for
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`inspection.
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`11.
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`Any attorney representing a Party, whether in-house or outside counsel, and any person
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`associated with a Party and permitted to receive the other Party’s Protected Material that
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`is designated “RESTRICTED - ATTORNEYS’ EYES ONLY” and/or “RESTRICTED -
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`CONFIDENTIAL
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`SOURCE CODE”
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`(collectively
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`“HIGHLY
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`SENSITIVE
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`MATERIAL”), who has reviewed the other Party’s HIGHLY SENSITIVE MATERIAL
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`under this Order shall not prepare, prosecute, supervise, or assist in the preparation or
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`prosecution of any patent application pertaining to the field of the invention of the
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`patents-in-suit on behalf of the receiving Party or its acquirer, successor, predecessor, or
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`other affiliate during the pendency of this Action and for one year after its conclusion,
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`including any appeals. To ensure compliance with the purpose of this provision, each
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`Party shall create an “Ethical Wall” between those persons with access to HIGHLY
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`SENSITIVE MATERIAL and any individuals who, on behalf of the Party or its acquirer,
`
`successor, predecessor, or other affiliate, prepare, prosecute, supervise or assist in the
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`preparation or prosecution of any patent application pertaining to the field of invention of
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`the patent-in-suit. “Prosecution” as used in this paragraph does not include representing a
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`party before a domestic or foreign agency (including, but not limited to, a reissue protest,
`
`inter partes review, ex parte reexamination or inter partes reexamination). This
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`Prosecution Bar shall begin when access to HIGHLY SENSITIVE MATERIAL is first
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`reviewed by the affected individual.
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`12.
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`Nothing in this Order shall require production of documents, information or other
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`material that a Party contends is protected from disclosure by the attorney-client
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`privilege, the work product doctrine, or other privilege, doctrine, or immunity. If
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`documents, information or other material subject to a claim of attorney-client privilege,
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`work product doctrine, or other privilege, doctrine, or immunity is inadvertently or
`
`unintentionally produced, such production shall in no way prejudice or otherwise
`
`constitute a waiver of, or estoppel as to, any such privilege, doctrine, or immunity. Any
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`Party that inadvertently or unintentionally produces documents, information or other
`
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`material it reasonably believes are protected under the attorney-client privilege, work
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`product doctrine, or other privilege, doctrine, or immunity may obtain the return of such
`
`documents, information or other material by promptly notifying the recipient(s) and
`
`providing a privilege log for the inadvertently or unintentionally produced documents,
`
`information or other material. The recipient(s) shall gather and return all copies of such
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`documents, information or other material to the producing Party, except for any pages
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`containing privileged or otherwise protected markings by the recipient(s), which pages
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`shall instead be destroyed and certified as such to the producing Party.
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`13.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person
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`authorized to have access thereto to any person who is not authorized for such access
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`under this Order. The Parties are hereby ORDERED to safeguard all such documents,
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`information and material to protect against disclosure to any unauthorized persons or
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`entities.
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`14.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use any
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`DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided
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`that the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible
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`to have access to the DESIGNATED MATERIAL by virtue of his or her employment
`
`with the designating party, (ii) identified in the DESIGNATED MATERIAL as an
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`author, addressee, or copy recipient of such information, (iii) although not identified as an
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`author, addressee, or copy recipient of such DESIGNATED MATERIAL, has, in the
`
`ordinary course of business, seen such DESIGNATED MATERIAL, (iv) a current or
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`former officer, director or employee of the producing Party or a current or former officer,
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`director or employee of a company affiliated with the producing Party; (v) counsel for a
`
`17
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`Case 2:17-cv-00140-RWS-RSP Document 36-2