Case 2:17-cv-00513-JRG Document 119 Filed 04/10/18 Page 1 of 31 PageID #: 5240
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`AGIS SOFTWARE DEVELOPMENT
`LLC,
`
`Plaintiff,
`
`v.
`
`HUAWEI DEVICE USA INC., HUAWEI
`DEVICE CO., LTD. AND HUAWEI
`DEVICE (DONGGUAN) CO., LTD.,
`HTC CORPORATION,
`LG ELECTRONICS, INC.,
`APPLE INC.,
`ZTE CORPORATION, ZTE (USA),
`INC., AND ZTE (TX), INC.,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Civil Action No. 2:17-CV-513-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`Civil Action No. 2:17-CV-514-JRG
`Civil Action No. 2:17-CV-515-JRG
`Civil Action No. 2:17-CV-516-JRG
`Civil Action No. 2:17-CV-517-JRG
`
`PROTECTIVE ORDER
`
`WHEREAS, Plaintiff, AGIS Software Development LLC, and Defendants, Huawei
`
`Device USA Inc., Huawei Device Co., Ltd. Huawei Device (Dongguan) Co., Ltd., HTC
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`Corporation,1 LG Electronics, Inc., Apple Inc., ZTE (USA), Inc., and ZTE (TX), Inc.,2 hereafter
`
`referred to as “the Parties,”3 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,
`
`1
`HTC Corp. states that it enters into this protective order subject to its motion to dismiss
`and without waiver of its objection to personal jurisdiction in this case.
`2
`Defendant ZTE Corporation has not yet been served or appeared in this matter; thus, all
`discovery limits will apply, if Defendant ZTE Corporation is served. Further, ZTE (USA), Inc.
`and ZTE (TX), Inc. state that they enter into this protective order subject to their motion to
`dismiss, or in the alternative transfer, and without waiver of its objection to venue in this case.
`3
`“Party” means any party to this case, including all of its officers, directors, employees,
`and outside counsel and their support staffs. “Parties” shall also include any other parties that
`are added to this Action and served with process in accordance with the Federal Rules of Civil
`Procedure.
`
`1
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`

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`Case 2:17-cv-00513-JRG Document 119 Filed 04/10/18 Page 2 of 31 PageID #: 5241
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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 with
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`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.
`
`Each Party may designate as confidential for protection under this Order, in whole or in part,
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`any document, information or material that constitutes or includes, in whole or in part,
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`confidential or proprietary information or trade secrets of the Party or a Third Party to whom
`
`the Party reasonably believes it owes an obligation of confidentiality with respect to such
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`document, information or material (“Protected Material”).
`
`2.
`
`To the extent that any one of Defendants in this litigation provides Protected Material
`
`under the terms of this Protective Order to Plaintiff, Plaintiff shall not share that material
`
`with the other Defendants in this litigation, absent express written permission from the
`
`producing Defendant. This Order does not confer any right to any one Defendant to
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`access the Protected Material of any other Defendant.
`
`3.
`
`No Defendant is required to produce its Protected Material to any other Defendant or
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`Defendants, but nothing in this Order shall preclude such production. Notwithstanding
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`the provisions of this Protective Order, Plaintiff shall not disclose one Defendant’s
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`Protected Material to any other Defendant or Defendants through Court filings, oral
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`argument in Court, expert reports, deposition, discovery requests, discovery responses, or
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`any other means, without the express prior written consent of the Defendant that
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`produced the Protected Material.
`
`4.
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`Protected Material shall be designated by the Party producing it by affixing a legend
`
`or stamp on such document, information or material as follows: “CONFIDENTIAL” or
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`2
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`

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`“RESTRICTED – ATTORNEYS’ EYES ONLY” or “RESTRICTED CONFIDENTIAL
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`SOURCE CODE.”
`
` The words “CONFIDENTIAL” or “RESTRICTED –
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`ATTORNEYS’ EYES ONLY” or “RESTRICTED CONFIDENTIAL SOURCE CODE”
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`shall be placed clearly on each page of the Protected Material (except deposition and hearing
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`transcripts) for which such protection is sought.
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`5.
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`For digital files being produced, the producing Party may mark each viewable page or
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`image with the appropriate designation, and mark the medium, container, and/or
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`communication in which the digital files were contained. In the event that original
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`documents are produced for inspection, the original documents shall be presumed
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`“RESTRICTED – ATTORNEYS’ EYES ONLY” during the inspection and re-
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`designated, as appropriate during the copying process. Where electronic files and
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`documents are produced in native electronic format, such electronic files and documents
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`shall be designated for protection under this Order by appending to the file names or
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`designators information indicating whether the file contains “CONFIDENTIAL,”
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`“RESTRICTED – ATTORNEYS’ EYES ONLY” or “RESTRICTED CONFIDENTIAL
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`SOURCE CODE,” material, or shall use any other reasonable method for so designating
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`Protected Materials produced in electronic format. When electronic files or documents
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`are printed for use at deposition, in a court proceeding, or for provision in printed form to
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`an expert or consultant pre-approved pursuant to paragraph 12, the party printing the
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`electronic files or documents shall affix a legend to the printed document corresponding
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`to the designation of the Designating Party and including the production number and
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`designation associated with the native file. No one shall seek to use in this litigation a
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`.tiff, .pdf or other image format version of a document produced in native file format
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`3
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`

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`without first (1) providing a copy of the image format version to the producing Party so
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`that the producing Party can review the image to ensure that no information has been
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`altered, and (2) obtaining the consent of the producing Party, which consent shall not be
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`unreasonably withheld.
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`6.
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`For deposition and hearing transcripts, the word “CONFIDENTIAL” or “RESTRICTED
`
`– ATTORNEYS’ EYES ONLY” or “RESTRICTED CONFIDENTIAL SOURCE
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`CODE” shall be placed on the cover page of the transcript (if not already present on the
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`cover page of the transcript when received from the court reporter) by each attorney
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`receiving a copy of the transcript after that attorney receives notice of the
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`designation of some or all of that transcript as “CONFIDENTIAL”, “RESTRICTED –
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`ATTORNEYS’ EYES ONLY” or “RESTRICTED CONFIDENTIAL SOURCE CODE.”
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`In the event a deposition is videotaped, the original and all copies of the videotape shall
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`be marked by the video technician to indicate that the contents of the videotape are subject
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`to this Protective Order, substantially along the lines of “This videotape contains
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`confidential testimony used in this case and is not to be viewed or the contents thereof
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`to be displayed or revealed except pursuant to the terms of the operative Protective
`
`Order in this matter or pursuant to written stipulation of the parties.” It shall be the
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`responsibility of the Party that designates the deposition as confidential to inform the
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`videographer of the requirements in this Paragraph.
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`7.
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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 the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes Only”
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`shall receive the same treatment as if designated “RESTRICTED – ATTORNEYS’
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`EYES ONLY” under this Order, unless and until such document is redesignated to have a
`
`
`
`4
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`different classification under this Order.
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`8.
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`With respect to documents, information or material designated “CONFIDENTIAL,
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`“RESTRICTED – ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL
`SOURCE CODE” (“DESIGNATED MATERIAL”),4 subject to the provisions herein
`
`and 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
`
`Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits
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`or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings
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`and other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions,
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`extracts, digests and complete or partial summaries prepared from any DESIGNATED
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`MATERIALS, as well as testimony or presentations by Parties or their counsel in court
`
`that might reveal Protected Material shall also be considered DESIGNATED
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`MATERIAL and treated as such under this Order.
`
`9.
`
`A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED -
`
`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”)
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`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 shall
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`not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party
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`that inadvertently or unintentionally produces Protected Material without designating it as
`
`DESIGNATED MATERIAL may request destruction of that Protected Material by
`
`
`4
`The term DESIGNATED MATERIAL is used throughout this Protective Order to refer
`to the class of materials designated as “CONFIDENTIAL,” “RESTRICTED - ATTORNEYS’
`EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE,” both individually and
`collectively.
`
`
`
`5
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`

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`notifying the recipient(s), as soon as reasonably possible after the producing Party
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`becomes aware of the inadvertent or unintentional disclosure, and providing replacement
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`Protected Material that is properly designated. The recipient(s) shall then destroy all copies
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`of the inadvertently or unintentionally produced Protected Materials and any documents,
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`information or material derived from or based thereon.
`
`10.
`
`The following information is not Protected Material: (a) any information that is or, after
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`its disclosure to a receiving Party, becomes part of the public domain as a result of
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`publication not involving a violation of this Order or other obligation to maintain the
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`confidentiality of such information; (b) any information that the receiving Party can show
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`was already publicly known prior to the disclosure; and (c) any information that the
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`receiving Party can show by written records was received by it from a source who
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`obtained the information lawfully and under no obligation of confidentiality to the
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`producing Party.
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`11.
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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 party,
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`upon order of the Court, or as set forth in paragraph 15 herein:
`
`(a)
`
`(b)
`
`(c)
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`outside counsel of record in this Action for the Parties;
`
`employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
`
`in-house counsel (“in-house counsel” includes attorneys or members of the legal
`staff or the intellectual property department of a Party or of a Parties’ parents,
`subsidiaries, or commonly controlled companies) for the Parties who either have
`responsibility for making decisions dealing directly with the litigation of this
`Action, or who are assisting outside counsel in the litigation of this Action;
`
`(d)
`
`up to and including three (3) designated representatives of each of the Parties, as
`well as their immediate staff, to the extent reasonably necessary for the litigation
`
`6
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`
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`
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`

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`of this Action, provided that: before access is given, the representative has
`completed the Undertaking attached as Appendix A hereto and the same is served
`upon the producing Party at least seven (7) days before access to the Protected
`Material is to be given to that representative to object to and notify the receiving
`Party in writing that it objects to disclosure of Protected Material to the
`representative. The Parties agree to promptly confer and use good faith to resolve
`any such objection within seven (7) days following the objection. If the Parties
`are unable to resolve any objection, the objecting Party may file a motion with
`the Court within ten (10) days of the notice, or within such other time as the Parties
`may agree, seeking a protective order with respect to the proposed disclosure. If
`relief is not sought from the Court within that time, the objection shall be deemed
`withdrawn. If relief is sought, designated materials shall not be disclosed to the
`representative in question until the Court resolves the objection; except that either
`party may in good faith request the other party’s consent to designate one
`or more additional representatives, the other party shall not unreasonably
`withhold such consent, and the requesting party may seek leave of Court to
`designate such additional representative(s) if the requesting party believes the
`other party has unreasonably withheld such consent;
`
`
`
`(e)
`
`ii.
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`outside consultants or experts (i.e., not existing employees or affiliates of a Party or
`an affiliate of a Party) retained for the purpose of this litigation, provided that:
`1.
`Such consultants or experts are not presently employed by the Parties
`hereto for purposes other than this Action, or of a competitor of a
`Party, nor anticipated at the time of retention to become an officer,
`director or employee of a Party or of a competitor of a Party;
`2. Before access is given, the consultant or expert has completed the
`Undertaking attached as Appendix A hereto and the same is served
`upon the producing Party with:
`i.
`a current curriculum vitae of the consultant or expert that identifies
`the consultant’s or expert’s current employer(s) and employment
`history for the past ten (10) years;
`an identification of all pending patent applications on which the
`consultant or expert is named as an inventor, in which the
`consultant or expert has any ownership or other pecuniary interest,
`or as to which the consultant or expert has had or anticipates in the
`future any involvement in advising on, consulting on, preparing,
`prosecuting, drafting, editing, amending, or otherwise affecting the
`scope of the claims; and
`a list of the cases in which the consultant or expert has testified at
`deposition or trial within the last five (5) years;
`Such expert or consultant accesses the materials in the United States
`only, and does not transport them to or access them from any foreign
`jurisdiction.
`
`iii.
`
`3.
`
`
`
`7
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`Within seven (7) days of the disclosure described in subparagraph (e)(iii) above,
`the producing Party may notify the receiving Party in writing that it objects to
`disclosure of Protected Material to the consultant or expert. The Parties agree to
`promptly confer and use good faith to resolve any such objection within seven (7)
`days following the objection. If the Parties are unable to resolve any objection,
`the objecting Party may file a motion with the Court within ten (10) days of the
`notice, or within such other time as the Parties may agree, seeking a protective order
`with respect to the proposed disclosure. The objecting Party shall have the burden of
`proving the need for a protective order. No disclosure shall occur until all such
`objections are resolved by agreement or Court order. An initial failure to object
`to an expert or consultant under this Paragraph, or the resolution of a previous
`objection to an expert or consultant adverse to the objecting Party, shall not
`preclude a Party from later objecting to continued access by that expert or
`consultant for good cause. The Parties agree that, for good cause to exist, facts or
`circumstances must have become known to the objecting party regarding the
`expert or consultant that could not have been known before or during the initial
`failure to object to the expert or consultant. If an objection is made, the Parties
`shall meet and confer via telephone or in person within seven (7) days following
`the objection and attempt in good faith to resolve the dispute informally. The
`designated expert or consultant may continue to have access to information that
`was provided to such expert or consultant prior to the date of the objection. If a
`later objection is made, no further DESIGNATED MATERIAL shall be disclosed
`to the expert or consultant until the Court resolves the matter or the producing
`Party withdraws its objection. Notwithstanding the foregoing, if the producing
`Party fails to move for a protective order within ten (10) days of the notice,
`further DESIGNATED MATERIAL may thereafter be provided to the expert or
`consultant. Without the express prior written consent of the Defendant that
`produced the Protected Material, no expert or consultant retained by a Defendant
`in this matter shall have access to “CONFIDENTIAL” Discovery Material
`produced by another Defendant in this matter;
`
`independent litigation support services, including persons working for or as
`court reporters, stenographers and videographers, and photocopy, document
`imaging, document review, and database services retained by counsel and
`reasonably necessary to assist counsel with the litigation of this Action;
`
`translation, graphics or design services, jury or trial consulting services, provided
`such persons have first agreed to be bound by the provisions of the Protective
`Order by signing a copy of Appendix A, however, such signed copies of
`Appendix A shall not be disclosed to or served upon any other Party;
`
`mock jurors who have signed an undertaking or agreement agreeing not to
`publicly disclose Protected Material and to keep any information concerning
`Protected Material confidential;
`
`
`8
`
`
`(f)
`
`(g)
`
`(h)
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`
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`
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`12.
`
`(i)
`
`(j)
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`the Court (including any Court-appointed mediators or advisors) and its
`personnel; and
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`any other person with the prior written consent of the producing Party.
`
`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
`
`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 documents,
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`information or material.
`
`13.
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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
`
`MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not
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`be used for any other purpose. Any person or entity who obtains access to DESIGNATED
`
`MATERIAL or the contents thereof pursuant to this Order shall not make any copies,
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`duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or any
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`portion thereof except as may be reasonably necessary in the litigation of this Action. Any
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`such copies, duplicates, extracts, summaries or descriptions shall be classified
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`DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
`
`14.
`
`To the extent a producing Party believes that certain Protected Material qualifying to be
`
`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 –
`
`ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer
`
`source code (meaning computer code, scripts, assembly, binaries, object code, source
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`code listings and descriptions of source code, object code listings and descriptions of
`
`
`
`9
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`

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`object code, and/or live data5 (that is, data as it exists residing in a database or databases)
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`(“Source Code Material”), the producing Party may designate such Protected Material as
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`“RESTRICTED CONFIDENTIAL SOURCE CODE.”
`
`15.
`
`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 11(a-b), 11(e-g) and 11(i-j), provided, however, that access by individuals
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`pursuant to paragraph 11(a-b, e) be limited to individuals who exercise no competitive
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`decision-making authority on behalf of the client, and, with respect to material produced
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`by the Plaintiff, not more than two (2) in-house counsel of the receiving Party, provided
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`that access by in-house counsel pursuant to this paragraph be limited to in-house counsel
`
`who exercise no competitive decision-making authority on behalf of the client and that
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`before access is given, the in-house counsel has completed the Undertaking attached as
`
`Appendix A hereto and the same is served upon the producing Party at least seven (7)
`
`days before access to the Protected Material is to be given to that in-house counsel to
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`object to and notify the receiving Party in writing that it objects to disclosure of Protected
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`Material to the in-house counsel. The Parties agree to promptly confer and use good faith
`
`to resolve any such objection within seven (7) days following the objection. If the Parties
`
`are unable to resolve any objection, the objecting Party may file a motion with the Court
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`within ten (10) days of the notice, or within such other time as the Parties may agree,
`
`
`5 Neither party anticipates that files describing the hardware design of any component, including
`Hardware Description Language (HDL) or Register Transfer Level (RTL) files that describe the
`hardware design of any ASIC or other chip, and Computer Aided Design (CAD) files that
`describe the hardware design of any component, will be produced in this case. To the extent that
`any party believes that the production of such files becomes necessary, the parties agree to meet
`and confer regarding the appropriate confidentiality designation for any such files at that time.
`
`
`
`10
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`

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`seeking a protective order with respect to the proposed disclosure. If relief is not sought
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`from the Court within that time, the objection shall be deemed withdrawn. If relief is
`
`sought, designated materials shall not be disclosed to the in-house counsel in question
`
`until the Court resolves the objection. With respect to material that is produced by the
`
`Defendant, no in-house counsel of the receiving party may have access to Protected
`
`Material designated RESTRICTED – ATTORNEYS’ EYES ONLY. Without the express
`
`prior written consent of the Defendant that produced the Protected Material, no expert or
`
`consultant retained by a Defendant in this matter shall have access to “RESTRICTED –
`
`ATTORNEYS’ EYES ONLY” Discovery Material produced by another Defendant in
`
`this matter.
`
`16.
`
`For Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE,
`
`which shall mean documents or information containing or substantively relating to confidential,
`
`proprietary and/or trade secret source code or technical design documentation (“Source Code
`
`Material”), the following additional restrictions apply:
`
`(a)
`
`(b)
`
`Access to a Party’s Source Code Material shall be provided only on “stand-
`alone” computer(s) (that is, the computer may not be linked to any network,
`including a local area network (“LAN”), an intranet or the Internet) that is
`password protected and maintained in a secure room (“Source Code Review
`Room”). Additionally, the stand-alone computer(s) may only be located, as
`determined in the sole discretion of the producing Party, at (1) the offices of the
`producing Party’s primary outside counsel; (2) a single third-party site located
`within any judicial district in which the Source Code Material is stored in the
`ordinary course of business (e.g., an escrow company); or (3) a location mutually
`agreed upon by the receiving Party and the producing Party (the “Review
`Facility”). No recordable media or recordable devices, including without
`limitation sound recorders, computers, cellular telephones, peripheral equipment,
`cameras, CDs, DVDs, or drives of any kind, shall be permitted into the Source
`Code Review Room;
`
`The receiving Party shall make reasonable efforts to restrict its requests for
`such access to the stand-along computer(s) to normal business hours, which for
`purposes of this paragraph shall be 9:00 a.m. through 6:00 p.m. on business days
`
`
`
`11
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`

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`
`(c)
`
`
`(d)
`
`
`(e)
`
`(i.e., weekdays that are not Federal holidays). However, upon reasonable notice
`from the receiving party, the producing Party shall make reasonable efforts to
`accommodate the receiving Party’s request for access to the stand-alone
`computer(s) outside of normal business hours. Prior to the first inspection of any
`requested Source Code, the receiving Party shall provide twenty-one (21) days’
`notice of the Source Code that it wishes to inspect. The receiving Party shall
`provide seven (7) days’ notice prior to any additional inspections. The Parties
`agree to cooperate in good faith such that maintaining the producing Party’s
`Source Code Material at the offices of its outside counsel shall not unreasonably
`hinder the receiving Party’s ability to efficiently and effectively conduct the
`prosecution or defense of this Action;
`
`The producing Party shall provide the receiving Party with information
`explaining how to start, log on to, and operate the stand-alone computer(s) in order
`to access the produced Source Code Material on the stand-alone computer(s).
`The producing Party may visually monitor the activities of the receiving Party’s
`representatives during any Source Code review, but only to ensure that no
`unauthorized electronic records of the Source Code and no information
`concerning the Source Code are being created or transmitted in any way;
`
`in computer
`The producing Party will produce Source Code Material
`searchable format on the stand-alone computer(s) as described above and will,
`upon request from the receiving Party, install freely available software tools on
`the stand-alone computer for purposes of the review (including but not limited to
`software to perform searches of the Source Code Material), if such tools exist and
`are in possession of the producing Party at the time the first request to review
`Source Code is received, upon request by the reviewing Party;
`
`The receiving Party may, at its own expense, request that the producing Party
`install software on Source Code Review computer(s) to perform searches of the
`Source Code Material, provided that such other software is necessary for the
`receiving Party to perform its review of the Source Code Material consistent with
`all of the protections herein. The receiving Party must provide the producing
`Party with removable electronic media (e.g., a CD, DVD or flash memory
`“stick”) containing such software tools(s) at least fourteen (14) days in advance
`of the date upon which the receiving Party wishes to have the additional software
`available for use on the Source Code Review computer(s). Timely requests for
`the installation of such search software will not be unreasonably denied so long
`as the receiving Party possesses an appropriate license to such software tools, and
`the requested search software is compatible with the operating system, and other
`software necessary to make the Source Code available for inspection, installed on
`a Source Code Review computer(s), does not prevent or impede the receiving
`Party's access to the Source Code Material produced for inspection on Source
`Code Review computer(s) and does not side-step any of the security features
`enabled on a Source Code Review computer(s) (e.g., enable connection and use
`
`
`
`12
`
`
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`Case 2:17-cv-00513-JRG Document 119 Filed 04/10/18 Page 13 of 31 PageID #: 5252
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`of USB thumb drives). The receiving Party shall not erase, load, install, compile,
`or otherwise modify any program (or request that any other program be erased,
`loaded, installed, or otherwise modified by the producing Party) on the Source
`Code Review computer(s) without first submitting a written request and
`obtaining the producing Party's agreement to the request;
`
`
`
`(g)
`
`(f) Access to Protected Material designated RESTRICTED CONFIDENTIAL
`- SOURCE CODE shall be limited to (i) outside counsel provided that such
`Outside Counsel be limited to outside counsel who exercise no competitive
`decision-making authority on behalf of the client; (ii) up to three (3) outside
`consultants or experts6 (i.e., not existing employees or affiliates of a Party or an
`affiliate of a Party) retained for the purpose of this litigation and approved to
`access such Protected Materials pursuant to Paragraph 7 above; (iii) Court
`reporters, stenographers and videographers retained to record testimony taken in
`this action; (iv) the Court (including any Court-appointed mediators or advisors)
`and its personnel; and (v) any other person with the prior written consent of the
`producing Party. Without the express prior written consent of the Defendant that
`produced the Protected Material, no expert or consultant retained by a Defendant
`in this matter shall have access to “RESTRICTED CONFIDENTIAL SOURCE
`CODE” Discovery Material produced by another Defendant in this matter;
`
`A receiving party may include excerpts of Source Code Material in a pleading,
`exhibit, expert report, discovery document, deposition transcript, or other Court
`document, provided that the Source Code Documents are appropriately marked
`under this Order, restricted to those who are entitled to have access to them as
`specified herein, and, if filed with the Court, filed under seal in accordance with
`the Court’s rules, procedures and orders;
`
`
`
`(h)
`
`To the extent portions of Source Code Material are quoted in a Source
`Code Document, either (1) the entire Source Code Document will be stamped and
`treated as RESTRICTED CONFIDENTIAL SOURCE CODE or (2) those pages
`containing quoted Source Code Material will be separately stamped and
`treated as RESTRICTED CONFIDENTIAL SOURCE CODE;
`
`
`(i)
`
`Except as set forth in paragraph 12(p) below, no electronic copies of Source
`Code Material shall be made without prior written consent of the producing
`Party, except as necessary to create documents which, pursuant to the Court’s
`
`6 For the purposes of this paragraph, an outside consultant or expert is defined to include no more
`than three of 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, provided that any
`individual employed by an outside consultant or expert be approved to access Protected
`Materials pursuant to Paragraph 11(e) above prior to receiving any Protected Material designated
`RESTRICTED CONFIDENTIAL - SOURCE CODE.
`
`
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`Case 2:17-cv-00513-JRG Document 119 Filed 04/10/18 Page 14 of 31 PageID #: 5253
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`(j)
`
`rules, procedures and order, must be filed or served electronically. Images or
`copies of Source Code shall not be included in correspondence between the
`Parties (references to production numbers shall be used instead). The receiving
`Party shall maintain a log of all such electronic copies of any portion of Source
`Code in its possession or in the possession of its retained consultants, including
`