`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 1 of 25 PageID #: 1962
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`EXHIBIT A
`EXHIBIT A
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`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 2 of 25 PageID #: 1963
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`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`T-MOBILE USA, INC. and T-MOBILE US,
`INC.,
`
`
`
`v.
`
`LYFT, INC.,
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`
`§
`Case No. 2:21-cv-00072-JRG-RSP
`§
`(LEAD CASE)
`§
`
`§
`JURY TRIAL DEMANDED
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`PROTECTIVE ORDER
`
`UBER TECHNOLOGIES, INC., d/b/a
`UBER,
`
`WHATSAPP, INC.,
`
`
`Defendants.
`
`Case No. 2:21-cv-00024-JRG-RSP
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`Case No. 2:21-cv-00026-JRG-RSP
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`Case No. 2:21-cv-00029-JRG-RSP
`(MEMBER CASE)
`
`JURY TRIAL DEMANDED
`
`
`WHEREAS, Plaintiff AGIS Software Development LLC (“AGIS” or “Plaintiff”) and
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`Defendants T-Mobile USA, Inc., T-Mobile US, Inc., Lyft, Inc., Uber Technologies, Inc., d/b/a
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`Uber, and WhatsApp LLC1 (collectively, “Defendants”), hereafter referred to as “the Parties,”
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`believe that certain information that is or will be encompassed by discovery demands by the Parties
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`1 WhatsApp, Inc. is incorrectly named in the first amended complaint filed in Case No. 2:21-CV-
`00029-JRG-RSP.
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`
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`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 3 of 25 PageID #: 1964
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`involves the production or disclosure of trade secrets, confidential business information, or other
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`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 part,
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`confidential or proprietary information or trade secrets of the Party or a Third Party to
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`whom the Party reasonably believes it owes an obligation of confidentiality with respect to
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`such document, information or material (“Protected Material”). Protected Material shall
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`be designated by the Party producing it by affixing a legend or stamp on such document,
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`information or material as
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`follows: “CONFIDENTIAL,” “RESTRICTED –
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`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE.”
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`The words “CONFIDENTIAL,” “RESTRICTED – ATTORNEYS’ EYES ONLY,” or
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`“RESTRICTED CONFIDENTIAL SOURCE CODE” shall be placed clearly on each page
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`of the Protected Material (except deposition and hearing transcripts and natively produced
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`documents) for which such protection is sought. For deposition and hearing transcripts, the
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`word “CONFIDENTIAL” or other applicable designation shall be placed on the cover page
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`of the transcript (if not already present on the cover page of the transcript when received
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`from the court reporter) by each attorney receiving a copy of the transcript after that
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`attorney receives notice of the designation of some or all of that transcript as Protected
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`Material. For natively produced Protected Material, the word “CONFIDENTIAL” or other
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`applicable designation shall be placed in the filename of each such natively produced
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`
`
`2
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`document. All Protected Material not reduced to documentary, tangible or physical form
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`or which cannot be conveniently designated as set forth herein shall be designated by the
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`producing Party by informing the receiving Party of the designation in writing. Any
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`documents (including physical objects) made available for inspection by counsel for the
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`receiving Party prior to producing copies of selected items shall be considered, as a whole,
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`to constitute Protected Material (unless otherwise designated at the time of inspection) and
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`shall be subject to this Order. Thereafter, the producing Party shall have reasonable time
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`to review and designate the appropriate documents or things as “CONFIDENTIAL,”
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`“RESTRICTED – ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL
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`SOURCE CODE” prior to furnishing copies to the receiving Party.
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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 the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes
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`Only” (or any such similar designation) shall receive the same treatment as if designated
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`“RESTRICTED ‒ ATTORNEYS’ EYES ONLY” under this Order, unless and until such
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`document is 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,
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`“RESTRICTED ‒ ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL
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`SOURCE CODE” (“DESIGNATED MATERIAL”),2 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
`
`
`2 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
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`
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`Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as
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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,” “RESTRICTED ‒
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`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”)
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`may be made at any time.3 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
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`DESIGNATED MATERIAL may request destruction of that Protected Material by
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`notifying the recipient(s), as soon as reasonably possible after the producing Party becomes
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`aware of the inadvertent or unintentional disclosure, and providing replacement Protected
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`Material that is properly designated. The recipient(s) shall then destroy all copies of the
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`inadvertently or unintentionally produced Protected Materials and any documents,
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`information or material derived from or based thereon. The recipient may not sequester,
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`use or disclose the information until the claim is resolved. This includes a restriction
`
`
` 3 The following information is not Protected Material: (a) any information that is or, after its
`disclosure to a receiving Party, becomes part of the public domain as a result of publication not
`involving a violation of this Order or other obligation to maintain the confidentiality of such
`information; (b) any information that the receiving Party can show was already publicly known
`prior to the disclosure; and (c) any information that the receiving Party can show by written records
`was received by it from a source who obtained the information lawfully and under no obligation
`of confidentiality to the producing Party.
`
`
`
`4
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`
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`against presenting the information to the court for a determination of the claim of
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`confidential treatment.
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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 party,
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`upon order of the Court, or as set forth in paragraph 12 herein:
`
`(a)
`
`(b)
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`(c)
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`(d)
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`outside counsel of record for the Parties in the Action4 in which the DESIGNATED
`MATERIAL is produced;
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`employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
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`up to two in-house counsel for each Party, and outside counsel for insurers or
`indemnitors for each Party, each of whom (1) is a member in good standing of at
`least one state bar, (2) has responsibility for making decisions dealing directly with
`the litigation of this Action, (3) has no involvement in competitive decision-
`making, (4) is identified in writing to counsel for the designating party in advance
`of the disclosure, and (5) has signed the Undertaking attached as Appendix A
`hereto;
`
`outside consultants or experts (i.e., not existing employees or affiliates of a Party
`or an affiliate of a Party), and their necessary support personnel, retained for the
`purpose of this litigation, provided that: (1) such consultants or experts are not past
`or current officers, directors, or employees of a Party or of a competitor of a Party,
`nor are they anticipated at the time of retention to become an officer, director, or
`employee of a Party or a competitor of a Party5; (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 at least ten (10) calendar days
`before access to the DESIGNATED MATERIAL is to be given to that consultant,
`technical advisor, or expert, along with (i) the name, address, current curriculum
`vitae; (ii) an identification of the consultant’s, technical advisor’s or expert’s past
`
`
` 4 The “Action” refers to one of Case Nos. 2:21-cv-00072-JRG, 2:21-cv-00024-JRG, 2:21-cv-
`00026-JRG, and/or 2:21-cv-00029-JRG. Specifically, “this Action” refers to the case in which the
`DESIGNATED MATERIAL is produced only. For avoidance of doubt, the DESIGNATED
`MATERIAL of a Defendant in one Action shall not be disclosed to a Defendant (including its
`outside counsel, experts, and/or in-house counsel) in another Action absent prior written consent
`of the designating party.
`
` 5 For avoidance of doubt, an independent expert or consultant retained (as opposed to employed)
`by a Party on another one of Case Nos. 2:21-cv-00072-JRG, 2:21-cv-00024-JRG, 2:21-cv-00026-
`JRG, and/or 2:21-cv-00029-JRG would not be precluded under this section.
`
`
`
`5
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`
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`and current employment and consulting relationships, including direct relationships
`and relationships through entities owned or controlled by the consultant, technical
`advisor or expert for the past ten (10) years of the consultant, technical advisor, or
`expert; (iii) a list of the cases (identified by name and number of the case and
`location of the court) in which the consultant, technical advisor or expert has
`offered expert testimony, including through a declaration, report, or testimony at a
`deposition or trial, within the preceding five (5) years); (iv) an identification of any
`patents or patent applications on which the consultant, technical advisor, or expert
`is identified as an applicant or inventor, is involved in prosecuting or maintaining,
`or has any pecuniary interest; and (v) an identification of each person or entity from
`whom the consultant, technical advisor or expert has received compensation or
`funding for work in his or her areas of expertise or to whom the consultant, technical
`advisor or expert has provided professional services at any time during the
`proceeding five years; and (3) within ten (10) calendar days of receipt of the
`disclosures described in subparagraph (d)(2) above, the producing Party may notify
`the receiving Party in writing that it objects for good cause to disclosure of
`DESIGNATED MATERIAL to the consultant, technical advisor, or expert. For
`purposes of this section, “good cause” shall include, but is not limited to, an
`objectively reasonable concern that the Expert will use or disclose Protected
`Materials in a way or ways that would violate one or more provisions contained in
`this Order. The Parties agree to promptly meet and confer and use good faith to
`resolve any such objection within five (5) days following the 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. With regard to the information sought through this
`subsection (d)(2)(iv), if the consultant, technical advisor or expert believes any of
`this information is subject to a confidentiality obligation to a third party, then the
`consultant, technical advisor or expert should provide whatever information the
`consultant, technical advisor or expert believes can be disclosed without violating
`any confidentiality agreements, and the Party seeking to disclose to the consultant,
`technical advisor or expert shall be available to meet and confer with the producing
`Party regarding any such engagement;
`
`(e)
`
`independent litigation support services, including persons working for or as court
`reporters, stenographic reporters or videographers, translators, graphics or design
`services, jury or trial consulting services, and photocopy, document imaging,
`document review, and database services retained by counsel and reasonably
`necessary to assist counsel with the litigation of this Action; and
`
`(f)
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`the Court (including any Court-appointed mediators or advisors) and its personnel
`(under seal or other suitable precautions determined by the Court).
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`
`
`6
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`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 8 of 25 PageID #: 1969
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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 documents,
`
`information or material.
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`7.
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`Documents, information or material produced in this Action, including but not limited to
`
`Protected Material designated as DESIGNATED MATERIAL, shall be used by the Parties
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`only in the litigation of this Action and shall not be used for any other purpose. Any person
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`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
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`reasonably necessary in the litigation of this Action. Any such copies, duplicates, extracts,
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`summaries or descriptions shall be classified DESIGNATED MATERIALS and subject to
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`all of the terms and 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
`
`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 computer
`
`Source Code6 and/or live data (that is, data as it exists residing in a database or databases),
`
`
` 6 “Source Code” shall mean documents containing or substantively relating to confidential,
`proprietary, and/or trade secret computer source code, object code (i.e., computer instructions and
`data definitions expressed in a form suitable for input to an assembler, compiler, or other
`translator), microcode, register transfer language (“RTL”), firmware, and hardware description
`language (“HDL”), as well as any and all programmer notes, annotations, and other comments of
`any type related thereto and accompanying the code. For avoidance of doubt, this includes source
`
`
`
`7
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`
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`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 9 of 25 PageID #: 1970
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`the producing Party may designate such Protected Material as “RESTRICTED
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`CONFIDENTIAL SOURCE CODE” (“Source Code Material”).
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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 (d-f).
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`10.
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`The RESTRICTED CONFIDENTIAL SOURCE CODE designation is reserved for
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`Protected Material that contains or substantively relates to a Party’s “Source Code,” which
`
`shall mean documents or information containing or substantively relating to confidential,
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`proprietary, and/or trade secret source code or technical design documentation (“Source
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`Code Material”). For Protected Material designated RESTRICTED CONFIDENTIAL
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`SOURCE CODE, the following additional restrictions apply:
`
`(a)
`
`(b)
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`(c)
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`(d)
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`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) in a secured locked room.
`
`The receiving Party shall make reasonable efforts to restrict its requests for such
`access to the stand-alone 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 stand-alone
`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 stand-alone computer(s) in order to access
`the produced Source Code Material on the stand-alone computer(s);
`
`The producing Party will produce Source Code Material in computer searchable
`format on the stand-alone computer(s) as described above and the receiving Party
`
`
`files, make files, intermediate output files, executable files, header files, resource files, library files,
`module definition files, map files, object files, linker files, browse info files, and debug files.
`
`
`
`8
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`
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`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 10 of 25 PageID #:
`1971
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`(e)
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`may request that commercially available licensed software tools for viewing and
`searching of Source Code Material be installed on the stand-alone computer for
`purposes of the review. Timely requests for the installation of such search software
`will not be unreasonably denied so long as 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). Any licensing fees for such software shall be paid by the receiving
`Party;
`
`Access to Source Code Material shall be limited to (i) outside counsel; (ii) up to
`three (3) outside consultants or experts7 (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; (iii)
`the Court (its technical advisor, if one is appointed), the jury, court personnel, and
`court reporters or videographers recording testimony or other proceedings in this
`Action. Court reporters and/or videographers shall not retain or be given copies of
`any portions of the Source Code Materials. If used during a deposition, the
`deposition record will identify the exhibit by its bates number; and (iv) while
`testifying at a deposition or trial in this action only: (a) any current or former officer,
`director, or employee of the producing Party or original source of the information
`(if employed during the time of code authorship or use); (b) any person designated
`by the producing Party to provide testimony pursuant to Rule 30(b)(6) of the
`Federal Rules of Civil Procedure related to such Source Code Material; and/or (c)
`any person who authored, previously received (other than in connection with this
`litigation), or was directly involved in creating, modifying, or editing the Source
`Code Material, as evident from its face or reasonably certain in view of other
`testimony or evidence. Persons authorized to view the Source Code Materials
`pursuant to subsections (iii)-(iv) of this subparagraph shall not retain or be given
`copies of the Source Code Materials except while so testifying.
`
`(f)
`
`To the extent portions of Source Code Material are quoted in an electronic copy or
`image of a document which, pursuant to the Court’s rules, procedures, or order,
`must be filed or served electronically (“Source Code Document”), either (1) the
`entire Source Code Document will be stamped and treated as RESTRICTED
`
` 7 For the purposes of this paragraph, an outside consultant or expert is defined to include up to
`two of the outside consultant’s or expert’s direct reports and/or 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. Any of the outside
`consultant’s or expert’s direct reports and other support personnel with access to the Source Code
`Material shall review this Protective Order and sign the undertaking attached as Appendix A prior
`to being given access to the Source Code Material, and the receiving Party will provide a copy of
`the signed Appendix A to the producing Party.
`
`
`
`9
`
`
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`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 11 of 25 PageID #:
`1972
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`(g)
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`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 this paragraph, no electronic copies or images of Source Code
`Material shall be made without prior written consent of the producing Party. The
`receiving Party may create an electronic copy or image of limited excerpts of
`Source Code Material only to the extent necessary to create Source Code
`Documents or any drafts of these documents, as necessary to create documents
`which, pursuant to the Court’s rules, procedures and order, must be filed or served
`electronically.8 The receiving Party shall only include such excerpts as are
`reasonably necessary for the purposes for which such part of the Source Code
`Material is used. Images or copies of Source Code Material shall not be included
`in correspondence between the parties (references to production numbers shall be
`used instead) and shall be omitted from pleadings and other papers except to the
`extent permitted herein. The receiving Party may create an electronic image of a
`selected portion of the Source Code Material only when the electronic file
`containing such image has been encrypted using commercially reasonable
`encryption software including password protection. The communication and/or
`disclosure of electronic files containing any portion of Source Code Material shall
`at all times be limited to individuals who are authorized to see Source Code
`Material under the provisions of this Protective Order. Additionally, all electronic
`copies must be labeled “RESTRICTED CONFIDENTIAL SOURCE CODE.” If
`Source Code Documents are filed with the Court, they must be filed under seal in
`accordance with the Court’s rules, procedures and orders.
`
`(h)
`
`No person shall copy, e-mail, transmit, upload, download, print, photograph or
`otherwise duplicate any portion of the designated “RESTRICT CONFIDENTIAL
`SOURCE CODE” material, except that the receiving Party may request paper
`copies (“Source Code Printout”) of limited portions of the Source Code Material,
`but only if and to the extent reasonably necessary for the preparation of court
`filings, pleadings, expert reports, or other papers, or for deposition or trial. The
`receiving Party may request no more than 25 consecutive pages, or an aggregate
`total of more than 250 pages, of Source Code Printouts during the duration of the
`case without prior written approval by the producing Party, with such approval not
`to be unreasonably withheld. Additionally, should a receiving Party request pages
`of Source Code Printouts in excess of the agreed aggregate total of 250 pages, the
`Producing party agrees to meet and confer with the receiving Party and will not
`oppose any reasonable requests. The receiving Party shall not request paper copies
`for the purposes of reviewing the Source Code Material other than electronically as
`set forth in paragraph (a) in the first instance. Within 5 business days, the producing
`Party will provide the requested material on watermarked or colored paper bearing
`Bates numbers and the legend “RESTRICTED CONFIDENTIAL SOURCE
`
` 8 Drafts shall only include those excerpts the Receiving Party reasonably believes will be
`included in the final version.
`
`
`
`10
`
`
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`Case 2:21-cv-00072-JRG-RSP Document 76-1 Filed 06/02/21 Page 12 of 25 PageID #:
`1973
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`(i)
`
`(j)
`
`(k)
`
`CODE” unless objected to as discussed below. At the inspecting Party’s request,
`up to five additional sets (or subsets) of printed source code may be requested and
`provided by the producing Party in a timely fashion. In the event that the producing
`Party believes that a particular printing request is unreasonable or the receiving
`Party seeks to print additional pages exceeding the printing limits described above,
`the producing Party and receiving Party shall meet and confer in good faith to
`attempt to resolve this dispute without the Court’s involvement. If they cannot
`resolve the issue, either Party may seek an order from the Court of whether the
`Printed Source Code in question is reasonably necessary to any case preparation
`activity. Contested Source Code printouts need not be produced to the requesting
`Party until the matter is resolved by the Court;
`
`If the receiving Party’s outside counsel, consultants, or experts obtain Source Code
`Printouts, the receiving Party shall ensure that such outside counsel, consultants, or
`experts keep the Source Code Printouts under their direct control in a secured
`locked area in the offices of such outside counsel, consultants, or expert. The
`receiving Party may also temporarily keep the Source Code Printouts 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 Source
`Code Printouts to a Court proceeding or deposition, provided that the Source Code
`Printouts are kept in a secure manner that ensures access is limited to the persons
`authorized under this Order;
`
`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(e) above
`to another person authorized under paragraph 10(e) above, on paper via hand carry
`or via Federal Express. 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 as is
`reasonably necessary for filing any Source Code Material with the Court or serving
`such Source Code Material on another Party;
`
`The receiving Party’s outside counsel and/or expert shall be entitled to take
`handwritten notes relating to the source code but may not copy any portion of the
`source code into the notes with the exception of directory paths, file paths, names
`and line numbers, as necessary to identify the requested portions for printing to the
`producing Party. The receiving Party’s outside counsel may request that the
`producing Party make available a second “standalone” computer for taking
`electronic notes in accordance with the limitations on handwritten notes as
`described in this paragraph. No copies of all or any portion of the source code may
`leave the room in which the source code is inspected except as otherwise provided
`herein. Further, no other written or electronic record of the source code is permitted
`except as otherwise provided herein. Other than the inspection computer, no
`recordable media or recordable devices, including without limitation sound
`recorders, personal digital assistants (PDAs), cellular telephones, cameras, voice
`
`
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`recorders, CDs, DVDs, or drives of any kind (e.g., USB memory sticks), shall be
`permitted in the room in which the source code is inspected. Any notes made or
`stored on the inspection computer or the second computer for electronic note-taking
`shall be deleted or destroyed by the producing Party, without reviewing the
`substance of the notes, upon discovery. Notwithstanding the foregoing, any such
`notes shall be stamped and treated as “RESTRICTED CONFIDENTIAL SOURCE
`CODE.” A log of such notes need not be produced to any other party absent Court
`Order (e.g., potentially in connection with a Protective Order violation motion).
`The producing Party may have a person visually monitor, from a distance, the
`activities of the receiving Party’s representatives during any source code review,
`but only to ensure that there is no unauthorized recording, copying, or transmission
`of the source code. The producing Party shall not electronically monitor or record
`receiving Party’s representatives during any source code review. Any visual
`monitoring must not allow for Defendants to discern the work product of the
`receiving Party’s representatives;
`
`A list of names of persons who will review Source Code Material on the stand-
`alone computer(s) will be provided to the producing Party in conjunction with any
`written (including email) notice requesting inspection. Prior to the first inspection
`of any Source Code Material on the stand-alone computer(s), the receiving Party
`shall provide five (5) business days’ notice to schedule the initial inspection with
`the producing Party. The receiving Party shall provide three (3) business days’
`notice in advance of scheduling any additional inspections. Such notice shall
`include the names and titles for every individual from the receiving Party who will
`attend the inspection. The producing Party may maintain a daily log of the names
`of persons who enter the locked room to view the source code and when they enter
`and depart;
`
`The receiving Party shall maintain a log of all electronic images and paper copies
`of Source Code in its possession or in the possession of retained experts or
`consultants, including the names of the recipients and reviewers of any electronic
`or paper copies and the locations where the copies are stored. Additionally, all
`electronic copies must be labeled “RESTRICTED CONFIDENTIAL SOURCE
`CODE.” The receiving Party shall also maintain a record of any individual who
`has inspected any portion of the source code in electronic or paper form, including
`and dates and times of inspection. Any individual who inspects any portion of the
`source code in electronic or paper form must sign Appendix A and the receiving
`Party must provide a