`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 1 of 19 PageID #: 452
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`CASE NO. 2:21-cv-00040-JRG
`(Lead Case)
`
`JURY TRIAL DEMANDED
`
`
`
`CASE NO. 2:21-cv-00041-JRG
`(Member Case)
`
`JURY TRIAL DEMANDED
`
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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` §
`
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`§
`§
`§
`§
`§
`§
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` 
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`HUAWEI DEVICE CO., LTD.,
`HUAWEI DEVICE USA, INC.,
`
`Defendants.
`
`
`GESTURE TECHNOLOGY
`PARTNERS, LLC,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.
`AND SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
`
`
`
` 
`
`[DISPUTED] PROTECTIVE ORDER FOR PATENT CASES 
`WHEREAS, Plaintiff Gesture Technology Partners, LLC (“GTP”) and Defendants Huawei
`
`Device Co., Ltd., and Huawei Device USA, Inc. (collectively “Huawei”) and Samsung Electronics
`
`Co., Ltd. and Samsung Electronics America Inc. (collectively “Samsung”), hereafter referred to as
`
`“the Parties,” in Civil Action Nos., 2:21-cv-00040 and 2:21-cv-00041 (“this Action”) believe that certain
`
`information that is or will be encompassed by discovery demands by the Parties involves the
`
` 
`
`1
`
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 2 of 19 PageID #: 453
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`production or disclosure of trade secrets, confidential business information, or other proprietary
`
`information;
`
`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
`
`Federal Rule of Civil Procedure 26(c):
`
`
`
`
`1.
`
`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
`
`Each Party may designate as confidential for protection under this Order, in whole or in part,
`
`any document, information or material that constitutes or includes, in whole or in part,
`
`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
`
`document, information or material (“Protected Material”). 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,” “RESTRICTED –
`
`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE.”
`
`The proper designation shall be placed clearly on each page, electronic file, or electronic
`
`media containing electronic files of the Protected Material (except deposition and hearing
`
`transcripts) for which such protection is sought. For deposition and hearing transcripts, the
`
`designation shall be placed on the cover page of the transcript (if not already present on the
`
`cover page of the transcript when received from the court reporter) by each  attorney
`
`receiving a copy of the transcript after that attorney receives notice of the designation
`
`of some or all of that transcript under this Order.
`
`2.
`
`Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of this
`
`Order with the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes Only”
`
`shall receive the same treatment as if designated “RESTRICTED – ATTORNEYS’ EYES
`
` 
`
`2
`
`
`

`

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`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 3 of 19 PageID #: 454
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`ONLY” under this Order, unless and until such document is redesignated to have a different
`
`classification under this Order.
`
`3.
`
`With respect to documents, information or material designated “CONFIDENTIAL,
`
`“RESTRICTED – ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL
`
`SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the provisions herein and
`
`unless otherwise stated, this Order governs, without limitation: (a) all documents,
`
`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
`
`or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings
`
`and other court filings; (d) affidavits; (e) expert reports and (f) stipulations. All copies,
`
`reproductions, extracts, digests and complete or partial summaries prepared from any
`
`DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and
`
`treated as such under this Order.
`
`4.
`
`A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED –
`
`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”)
`
`may be made at any time. Inadvertent or unintentional production of documents,
`
`information or material that has not been designated as DESIGNATED MATERIAL shall
`
`not be deemed a waiver in whole or in part of a claim for confidential treatment. Any Party
`
`that inadvertently or unintentionally produces Protected Material without designating it as
`
`DESIGNATED MATERIAL may request destruction of that Protected Material by notifying
`
`                                                            
`1 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.
`
` 
`
`3
`
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 4 of 19 PageID #: 455
`
`the recipient(s), as soon as reasonably possible after the producing Party becomes aware of
`
`the inadvertent or unintentional disclosure, and providing replacement Protected Material
`
`that is properly designated. The recipient(s) shall then destroy all copies of the inadvertently
`
`or unintentionally produced Protected Materials and any documents, information or material
`
`derived from or based thereon.
`
`5.
`
`“CONFIDENTIAL” documents, information and material may be disclosed only to the
`
`following persons, except upon receipt of the prior written consent of the designating Party,
`
`upon order of the Court, or as set forth in paragraph 12 herein:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`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 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 and reasonably necessary to assist such
`counsel in the litigation of this Action;
`
`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 (not including outside consultants or experts who
`have also been retained by the same Party for another Action); (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 a current
`curriculum vitae of the consultant or expert and a list of cases for which the
`consultant or expert presented testimony (including, but not limited to, written
`testimony, deposition testimony, and live trial testimony) in the past six years, at
`least seven (7) days before access to the Protected Material is to be given to that
`consultant or expert, so that the producing Party may object to and 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. If the Parties are unable to resolve any objection, the
`objecting Party may file a motion with the Court within fifteen (15) 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;
`
`4
`
`
`
`
`
`
` 
`
`

`

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`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 5 of 19 PageID #: 456
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`
`
`
`
`
`6.
`
`(e)
`
`independent litigation support services, including persons working for or as court
`reporters, graphics or design services, jury or trial consulting services, and
`photocopy, document imaging, and database services retained by counsel and
`reasonably necessary to assist counsel with the litigation of this Action; and
`
`(f)
`
`the Court and its personnel.
`
`A Party shall designate documents, information, or material as “CONFIDENTIAL” only
`
`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
`
`reasonably believes it owes an obligation of confidentiality with respect to such documents,
`
`information or material.
`
`7.
`
`Documents, information or material produced pursuant to any discovery request in this
`
`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
`
`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,
`
`duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or any
`
`portion thereof except as may be reasonably necessary in the litigation of this Action. Any
`
`such copies, duplicates, extracts, summaries or descriptions shall be classified
`
`DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
`
`8.
`
`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
`
`limitation, the producing Party may designate such Protected Material “RESTRICTED –
`
`ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer
`
`source code or similar data (including comments contained therein) and/or live data (that
`
` 
`
`5
`
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 6 of 19 PageID #: 457
`
`is, data as it exists residing in a database or databases) (“Source Code Material”), the
`
`producing Party may designate such Protected Material as “RESTRICTED
`
`CONFIDENTIAL SOURCE CODE.”
`
`9.
`
`For Protected Material designated RESTRICTED – ATTORNEYS’ EYES ONLY, access
`
`to, and disclosure of, such Protected Material shall be limited to individuals listed in
`
`paragraphs 5(a-b) and (d-f).
`
`10.
`
`For Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE,
`
`the following additional restrictions apply:
`
`(a)
`
`Access to a Party’s Source Code Material shall be provided only on a password
`protected “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)
`and on which all access ports have been disabled (except for one printer port)
`(“Source Code Computer”). The Source Code Computer(s) shall be located in a
`secured room (“Source Code Review Room”). Additionally, except as provided in
`paragraph 10(q) below, and absent agreement otherwise by the Parties (including
`the Parties and the producing Party, if different), the Source Code Computer(s)
`may only be located at the offices of the producing Party’s outside counsel;
`
`(b) Except as otherwise provided in this Protective Order, no physical copies of all or
`any portion of the Source Code Material may leave the Source Code Review
`Room. The producing Party shall make available a laser printer with commercially
`reasonable printing speeds and colored or watermarked papers, for on-site printing
`during inspection of the Source Code Material. Any printed portion that consists
`of more than [Plaintiff’s Proposal: one-hundred (100)] [Defendants’ Proposal: fifty
`(50)] pages of a continuous block of source code shall be presumed to be excessive,
`and the burden shall be on the receiving Party to demonstrate the need for such a
`printed copy. The receiving Party may print no more than [Plaintiff’s Proposal:
`two thousand five hundred (2,500)] [Defendants’ Proposal: one thousand two
`hundred and fifty (1,250)] pages total without the agreement of the producing
`Party. To the extent that more Source Code Material is required, written approval
`from the producing Party shall be given in good faith [Defendants’ Proposal: once
`the receiving Party articulates a reasonable need.] The receiving Party shall not
`print source code in order to review blocks of source code elsewhere in the first
`instance, i.e., as an alternative to reviewing that source code electronically on the
`Source Code Computer, as the Parties acknowledge and agree that the purpose of
`the protections herein would be frustrated by printing portions of code for review
`and analysis elsewhere, and that printing is permitted only to the extent necessary
`to prepare court filings or pleadings or other papers (including a testifying expert’s
`
` 
`
`6
`
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 7 of 19 PageID #: 458
`
`expert report). Upon printing any such portions of source code, the printed pages
`shall be collected by the producing Party. The producing Party shall Bates number,
`label as “RESTRICTED CONFIDENTIAL SOURCE CODE,” and copy any pages
`printed by the receiving Party. Within five (5) days, the producing Party
`[Plaintiff’s Proposal: shall provide three (3) copies of such pages to the receiving
`Party;] [Defendants’ Proposal: shall either (i) provide three (3) copies of such
`pages to the receiving Party or (ii) inform the requesting Party that it objects that
`the printed portions are excessive and/or not printed for a permitted purpose. If,
`after meeting and conferring, the producing Party and the receiving Party cannot
`resolve the objection(s), the receiving Party shall be entitled to seek a Court
`resolution of whether the printed source code in question is narrowly tailored and
`was printed for a permitted purpose. The burden shall be on the receiving Party to
`show good cause that it should receive the requested printed source code. The
`printed pages of source code in question need not be produced to the receiving
`Party until the objection is resolved by the Court;]
`
`The receiving Party shall make reasonable efforts to restrict its requests for such
`access to the Source Code Computer(s) to normal business hours, which for
`purposes of this paragraph shall be 8:00 a.m. through 6:00 p.m. 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
`Source Code Computer(s) outside of normal business hours. 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 Source Code Computer(s) in order to access
`the produced Source Code Material on the Source Code Computer(s);
`
`The producing Party will produce Source Code Material in computer searchable
`format on the Source Code Computer(s) as described above. The receiving Party
`may request software tools for viewing and searching the Source Code Material be
`installed on the computer, provided, however, that such review of the Source Code
`Material are in compliance with all of the terms, conditions, and protections herein.
`The receiving Party must provide the producing Party with the CD or DVD
`containing such licensed software tool(s), or a link to a website where the software
`may be downloaded for installation together with any necessary license, at least
`seven (7) business days in advance of the date upon which the receiving Party
`wishes to have the software tools available for use on the computer. Should the
`producing Party have any concerns about the requested tool, such as that they are
`used for things other than reviewing and searching source code or not commonly
`accepted in the industry, the Parties shall meet and confer in good faith to resolve
`any such concerns. Otherwise, assuming the above conditions are met, the
`producing Party shall install the requested software tools on the Source Code
`
`(c)
`
`
`(d)
`
`(e)
`
` 
`
`7
`
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 8 of 19 PageID #: 459
`
`Computer;
`
`No recordable media, recordable devices, or duplicating machines, including
`without limitation: sound recorders, computers, cellular telephones, peripheral
`equipment, cameras, CDs, DVDs, scanners, printers, photocopiers, or drives of any
`kind, shall be permitted into the Source Code Review Room absent agreement of
`the producing Party. The producing Party shall make available a reasonably secure
`area (such as the reception desk area or a breakout room if one is available) where
`such devices and other belongings may be stored but the receiving Party is
`responsible at all times for their own items;
`
`The receiving Party’s outside counsel and/or experts shall be entitled to take notes
`relating to the Source Code Material but may not copy substantial portions of the
`Source Code into the notes and may not take such notes electronically on the
`Source Code Computer itself or any other computer. For purposes of this
`provision, fifty (50) or more continuous lines of code and [Plaintiff’s Proposal:
`five hundred (500)] [Defendants’ Proposal: two-hundred-fifty (250)] total lines of
`code are “substantial”;
`
`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 Material and no information
`concerning the Source Code Material are being created or transmitted in any way.
`Other than the visual monitoring described above, the producing Party may not
`monitor or record via any electronic or any other means the activities of the
`receiving Party’s representatives during any source code review;
`
`All persons who will review a producing Party’s Source Code Material on the
`Source Code Computer on behalf of a receiving Party, including members of a
`receiving Party’s outside law firm, shall be identified in writing to the producing
`Party at least five (5) days in advance of the first time that such person reviews
`Source Code Material on the Source Code Computer. Such identification shall be
`in addition to any other disclosure required under this Order. All persons viewing
`Source Code Material on the Source Code Computer shall sign on each day they
`view Source Code Material a log that will include the names of persons who view
`the Source Code Material on the Source Code Computer and when they enter and
`depart the Source Code Review Room. Proper identification of all authorized
`persons shall be provided prior to any access to the Source Code Review Room or
`the Source Code Computer. Proper identification requires showing, at a minimum,
`a photo identification card sanctioned by the government of any State of the United
`States, by the government of the United States, or by the nation state of the
`authorized person’s current citizenship. Access to the Source Code Review Room
`or the Source Code Computer may be denied, at the discretion of the producing
`Party, to any individual who fails to provide proper identification;
`
`Access to Protected Material designated RESTRICTED CONFIDENTIAL -
`
`(f)
`
`(g)
`
`(h)
`
`(i)
`
`
`(j)
`
`8
`
`
`
`
`
`
`
`
`
`
` 
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 9 of 19 PageID #: 460
`
`SOURCE CODE shall be limited to outside counsel and up to three (3) outside
`consultants or experts2 (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 5(d) above. A receiving Party may
`include excerpts of Source Code Material in a pleading, exhibit, expert report,
`discovery document, deposition transcript, or other Court document (“Source Code
`Documents”), 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;
`
`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;
`
`Except as set forth in paragraph 10(s) 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 rules, procedures
`and order, must be filed or served electronically;
`
`The receiving Party shall be permitted to [Plaintiff’s Proposal: make] [Defendants’
`Proposal: request] a reasonable number of printouts and photocopies of Source
`Code Material received from the producing Party pursuant to paragraph 10(b),
`[Defendants’ Proposal: and written approval from the producing Party shall be
`given in good faith once the receiving Party articulates a reasonable need. All such
`printouts and photocopies] shall be designated and clearly labeled “RESTRICTED
`CONFIDENTIAL SOURCE CODE,” and the receiving Party shall maintain a log
`of all such copies. The copies are subject to the same protections set forth herein;
`
`Should such printed copies be transferred back to electronic media, such media
`shall be labeled “RESTRICTED CONFIDENTIAL SOURCE CODE” and shall
`continue to be treated as such;
`
`For depositions, copies of Source Code Material that are marked as deposition
`exhibits shall not be provided to the Court Reporter or attached to deposition
`transcripts, rather, the deposition record will identify the exhibit by its production
`numbers. All paper copies of Source Code Material brought to a deposition by the
`receiving Party shall be securely retained by the receiving Party’s outside counsel
`
`
`(k)
`
`
`(l)
`
`
`(m)
`
`
`(n)
`
`
`(o)
`
`                                                            
`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.
`
` 
`
`9
`
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 10 of 19 PageID #: 461
`
`or turned over to the producing Party’s outside counsel immediately following the
`close of the deposition for secure destruction in a timely manner;
`
`If the receiving Party’s outside counsel, consultants, or experts obtain printouts or
`photocopies of Source Code Material, the receiving Party shall ensure that such
`outside counsel, consultants, or experts keep the printouts or photocopies in a
`secured locked area in the offices of such outside counsel, consultants, or expert
`or similar secure location. The receiving Party may also temporarily keep the
`printouts or photocopies at: (i) the Court for any proceedings(s) relating to the
`Source Code Material, for the dates associated with the proceeding(s); (ii) the sites
`where any deposition(s) relating to the Source Code Material are taken, for the
`dates associated with the deposition(s); and (iii) any intermediate location
`reasonably necessary to transport the printouts or photocopies (e.g., a hotel prior to
`a Court proceeding or deposition); and
`
`A producing Party’s Source Code Material may only be transported by the receiving
`Party at the direction of a person authorized under paragraph 10(j) above to another
`person authorized under paragraph 10(j) above, on paper or removable electronic
`media (e.g., a DVD, CD-ROM, or flash memory “stick”) via hand carry, Federal
`Express or other similarly reliable courier. Source Code Material may not be
`transported or transmitted electronically over a network of any kind, including a
`LAN, an intranet, or the Internet. Source Code Material may only be transported
`electronically for the purpose of Court proceeding(s) or deposition(s) as set forth in
`paragraph 10(j) above and is at all times subject to the transport restrictions set forth
`herein. But, for those purposes only, the Source Code Materials may be loaded onto
`a stand-alone computer.
`
`The receiving Party’s outside counsel shall keep a log including: (a) the custodian
`of each copy of any Source Code Material and (b) the date and time any custodian
`receives or returns the Source Code Material to outside counsel. Within thirty (30)
`calendar days after the issuance of a final, non-appealable decision resolving all
`issues in the case, the receiving Party must serve upon the producing Party the log
`and, either securely deliver to the producing Party or certify the destruction of, all
`copies of the producing Party’s Source Code Material; and
`
`No other copying or transcribing of Source Code Material is allowed beyond that
`described in this Protective Order. No person shall copy, e-mail, transmit, upload,
`download, print, photograph or otherwise duplicate any portion of the Source Code
`Material, unless explicitly permitted by this Protective Order.
`
`
`Absent written consent from the producing Party, any individual who receives access to
`
`RESTRICTED – ATTORNEYS’ EYES ONLY and/or RESTRICTED
`
`CONFIDENTIAL SOURCE CODE (collectively “HIGHLY SENSITIVE MATERIAL”),
`
`10
`
`
`
`
`(p)
`
`
`(q)
`
`(r)
`
`
`
`(s)
`
` 
`11.
`
` 
`
`

`

` 
`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 11 of 19 PageID #: 462
`
`shall not prepare, prosecute, supervise, or assist in the preparation or prosecution of any
`
`patent or patent application pertaining to the field of the invention of the patents-in-suit on
`
`behalf of the receiving Party or its acquirer, successor, predecessor, or other affiliate during
`
`the pendency of this Action and for [Plaintiff’s Proposal: one (1) year] [Defendants’
`
`Proposal: two (2) years] after its conclusion, including any appeals. To ensure compliance
`
`with the purpose of this provision, each Party shall create an “Ethical Wall” between those
`
`persons with access to HIGHLY 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 preparation or prosecution of any patent application
`
`pertaining to the field of invention of the patents-in-suit. For purposes of this paragraph,
`
`“prosecution” includes (i) directly or indirectly drafting, amending, advising, or otherwise
`
`affecting the scope or maintenance of patent claims, (including amending, advising or
`
`otherwise affecting the scope of patent claims on behalf of a party whose patent has been
`
`challenged before a domestic or foreign agency, including, but not limited to, inter partes
`
`review) or (ii) advising or counseling clients regarding the same; but does not include
`
`representing a party challenging a patent before a domestic or foreign agency (including,
`
`but not limited to, a reissue protest, ex parte reexamination, or inter partes review). This
`
`Prosecution Bar shall begin when HIGHLY SENSITIVE MATERIAL is first reviewed by
`
`the affected individual.
`
`12.
`
`Nothing in this Order shall require production of documents, information or other material
`
`that a Party contends is protected from disclosure by the attorney-client privilege, the work
`
`product doctrine, or other privilege, doctrine, or immunity. If documents, information or
`
`other material subject to a claim of attorney-client privilege, work product doctrine, or other
`
` 
`
`11
`
`
`

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`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 12 of 19 PageID #: 463
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`privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
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`production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
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`any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
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`produces documents, information or other material it reasonably believes are protected under
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`the attorney-client privilege, work product doctrine, or other privilege, doctrine, or immunity
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`may obtain the return of such documents, information or other material by promptly
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`notifying the recipient(s) and providing a privilege log for the inadvertently or
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`unintentionally produced documents, information or other material. The recipient(s) shall
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`gather and return all copies of such documents, information or other material to the
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`producing Party, except for any pages containing privileged or otherwise protected markings
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`by the recipient(s), which pages shall instead be destroyed and certified as such to the
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`producing Party (including, without limitation, all originals and copies of any documents
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`containing or comprising, reflecting, or memorializing such information); the information
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`(including, without limitation, all originals and copies of any documents containing or
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`comprising, reflecting, or memorializing such information) shall continue to be privileged
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`and/or immune; and no use shall be made of such information (including, without
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`limitation, all originals and copies of any documents containing or comprising, reflecting,
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`or memorializing such information) by the receiving Party, nor shall it be disclosed to
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`anyone by the receiving Party. The receiving Party shall promptly provide to the
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`Producing Party a written certification of the complete return or destruction of such
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`information (including, without limitation, all originals and copies of any documents
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`containing or comprising, reflecting, or memorializing such information); provided that,
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`to the extent the receiving Party has incorporated such information in its own work
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`Case 2:21-cv-00040-JRG Document 41-1 Filed 06/03/21 Page 13 of 19 PageID #: 464
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`product, it may (instead of providing such work product to the producing Party) remove,
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`redact, or destroy such information incorporated in the work product and promptly certify
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`to such removal, redaction, or destruction.)
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`13.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized
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`to have access thereto to any person who is not authorized for such access under this Order.
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`The Parties are hereby ORDERED to safeguard all such documents, information and
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`material to protect against disclosure to any unauthorized persons or 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 that
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`the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
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`access to the DESIGNATED MATERIAL by virtue of his or her employment with the
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`designating Party, (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
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`or copy recipient of such information, (iii) although not identified as an author, addressee,
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`or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
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`business, seen such DESIGNATED MATERIAL, (iv) a current or former officer, director
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`or employee of the producing Party or a current or former officer, director or employee of
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`a company affiliated with the producing Party; (v) counsel for a Party, including outside
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`counsel and in-house counsel (subject to paragraphs 5, 9, and 10 of this Order); (vi) an
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`independent contractor, consultant, and/or expert retained for the purpose of this
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`litigation; (vii) court reporters and videographers (subject to paragraphs 5, 9, and 10 of
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`this Order); (viii) the Court; or (ix) other persons entitled hereunder to access to
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`DESIGNATED MATERIAL. DESI