Case 2:21-cv-00072-JRG-RSP Document 96 Filed 07/02/21 Page 1 of 26 PageID #: 2713
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`AGIS SOFTWARE DEVELOPMENT
`LLC,
`
` Plaintiff,
`
`v.
`
`T-MOBILE USA, INC. and T-MOBILE
`US, INC.,
`
` Defendants.
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`PROTECTIVE ORDER
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`Case No. 2:21-cv-00072-JRG-RSP
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` LEAD CASE
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`Before the Court is the Joint Motion For Entry of Partially Disputed Proposed Protective
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`Order and Stipulated Federal Rules of Evidence 502(d) Order and Clawback Agreement filed by
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`Plaintiff AGIS Software Development LLC (“AGIS”) and Defendants T-Mobile USA, Inc., T-
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`Mobile US, Inc., Lyft, Inc., Uber Technologies, Inc., d/b/a Uber, and WhatsApp, Inc.
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`(“Defendants”) (collectively, the “Parties”). Dkt. No. 76. The Parties’ Motion seeks entry of a
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`protective order upon resolution of two disputes and a stipulated Federal Rules of Evidence 502(d)
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`Order and Clawback Agreement.
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`The Parties have disputes regarding (1) whether the Protective Order should include a so-
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`called “acquisition bar” preventing individuals with access to designated discovery from
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`subsequently engaging in activities related to the acquisition of patents related to the subject matter
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`of that designated discovery, (2) whether the scope of an otherwise agreed upon “prosecution bar”
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`should extend to designated discovery. Dkt. No. 76 at 2.
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`Regarding the acquisition bar, Defendants bear the burden to show the acquisition bar is
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`appropriate because (1) the risk of inadvertent disclosure exists; and (2) the balance of interests
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`1
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`Case 2:21-cv-00072-JRG-RSP Document 96 Filed 07/02/21 Page 2 of 26 PageID #: 2714
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`suggest a bar is appropriate. In re Deutsche Bank Tr. Co. Ams., 605 F.3d 1373, 1378 (Fed. Cir.
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`2010).
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`Defendants argue the balance of interests suggest an acquisition bar is appropriate because
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`“[s]uch a provision is necessary to protect against the inadvertent disclosure of Defendants’ highly
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`confidential information.” Dkt. No. 76 at 4. To support this, Defendants state, “courts routinely
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`impose acquisition bars on attorneys and experts” and cite to two cases where such acquisition bar
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`has been imposed. Id. (citing E-Contact Techs., 2012 WL 11924448; Catch A Wave Techs., Inc.
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`v. Sirius XM Radio, Inc., No. C 12-05791, 2013 WL 9868422, at *1 (N.D. Cal. Aug. 6, 2013)).
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`Plaintiffs argue the balance of interests reject an acquisition bar because “imposing the bar will
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`drastically harm both Plaintiff’s counsel and other parties, including AGIS, who would be denied
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`the counsel of their choice” and “the proposed acquisition bar is overbroad and unascertainable
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`because the bar extends to Defendants’ designated discovery, which can include documents and
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`testimony concerning irrelevant matters.” Id. at 3.
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`Balancing protection against
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`inadvertent disclosure of Defendants’ confidential
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`information against choice of counsel, the Court finds the balance of interests disfavors an
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`acquisition bar. Defendants have not established a need sufficient to justify the significant
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`restriction of an acquisition bar.
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`Regarding the proposal that the prosecution bar extend to cover “the subject matter of any
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`HIGHLY SENSITIVE MATERIAL disclosed in discovery,” the Court agrees with Plaintiff that
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`“[b]asing the prosecution bar on Defendants’ designated documents and testimony renders the
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`prosecution bar overbroad and unascertainable” as such scope “can include documents and
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`testimony concerning irrelevant matters” and that “[t]he proposed breadth of the prosecution bar
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`is harmful to Plaintiff’s counsel and other parties and extends well beyond the scope of cases in
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`Case 2:21-cv-00072-JRG-RSP Document 96 Filed 07/02/21 Page 3 of 26 PageID #: 2715
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`this District.” See Id. at 14, 3. Accordingly, the Court denies Defendants’ request to extend the
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`scope of the prosecution bar to cover “the subject matter of any HIGHLY SENSITIVE
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`MATERIAL disclosed in discovery.”
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`After due consideration, the Court GRANTS the Parties’ Motion, incorporating the rulings
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`on the two disputes as described above. It is therefore ORDERED as follows:
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`1. Each Party may designate as confidential for protection under this Order, in whole or
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`in part, any document, information or material that constitutes or includes, in whole or
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`in part, confidential or proprietary information or trade secrets of the Party or a Third
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`Party to whom the Party reasonably believes it owes an obligation of confidentiality
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`with respect to such document, information or material (“Protected Material”).
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`Protected Material shall be designated by the Party producing it by affixing a legend or
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`stamp on such document, information or material as follows: “CONFIDENTIAL,”
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`“RESTRICTED
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`– ATTORNEYS’ EYES ONLY,”
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`or
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`“RESTRICTED
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`CONFIDENTIAL
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`SOURCE CODE.” The words
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`“CONFIDENTIAL,”
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`“RESTRICTED
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`– ATTORNEYS’ EYES ONLY,”
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`or
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`“RESTRICTED
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`CONFIDENTIAL SOURCE CODE” shall be placed clearly on each page of the
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`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,
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`the word “CONFIDENTIAL” or other applicable designation shall be placed on the
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`cover page of the transcript (if not already present on the cover page of the transcript
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`when received from the court reporter) by each attorney receiving a copy of the
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`transcript after that attorney receives notice of the designation of some or all of that
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`transcript as Protected Material. For natively produced Protected Material, the word
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`“CONFIDENTIAL” or other applicable designation shall be placed in the filename of
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`each such natively produced document. All Protected Material not reduced to
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`documentary, tangible or physical form or which cannot be conveniently designated as
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`set forth herein shall be designated by the producing Party by informing the receiving
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`Party of the designation in writing. Any documents (including physical objects) made
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`available for inspection by counsel for the receiving Party prior to producing copies of
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`selected items shall be considered, as a whole, to constitute Protected Material (unless
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`otherwise designated at the time of inspection) and shall be subject to this Order.
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`Thereafter, the producing Party shall have reasonable time to review and designate the
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`appropriate documents or
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`things as “CONFIDENTIAL,” “RESTRICTED –
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`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE
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`CODE” prior to furnishing copies to the receiving Party.
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`2. 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
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`designated “RESTRICTED ‒ ATTORNEYS’ EYES ONLY” under this Order, unless
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`and until such document is redesignated to have a different classification under this
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`Order.
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`3. With respect to documents, information or material designated “CONFIDENTIAL,
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`“RESTRICTED ‒ ATTORNEYS’ EYES ONLY,” or “RESTRICTED
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`4
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`CONFIDENTIAL SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the
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`provisions herein and unless otherwise stated, this Order governs, without limitation:
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`(a) all documents, electronically stored information, and/or things as defined by the
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`Federal Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or
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`documents marked as exhibits or for identification in depositions and hearings; (c)
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`pretrial pleadings, exhibits to pleadings and other court filings; (d) affidavits; and (e)
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`stipulations. All copies, reproductions, extracts, digests and complete or partial
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`summaries prepared from any DESIGNATED MATERIALS shall also be considered
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`DESIGNATED MATERIAL and treated as such under this Order.
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`4. A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED ‒
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`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE
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`CODE”) may be made at any time.2 Inadvertent or unintentional production of
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`documents, information or material that has not been designated as DESIGNATED
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`MATERIAL shall not be deemed a waiver in whole or in part of a claim for confidential
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`treatment. Any party that inadvertently or unintentionally produces Protected Material
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`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
`class of materials designated as “CONFIDENTIAL,” “RESTRICTED ‒ ATTORNEYS’ EYES
`ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE,” both individually and
`collectively.
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`2 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.
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`5
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`without designating it as DESIGNATED MATERIAL may request destruction of that
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`Protected Material by notifying the recipient(s), as soon as reasonably possible after
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`the producing Party becomes aware of the inadvertent or unintentional disclosure, and
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`providing replacement Protected Material that is properly designated. The recipient(s)
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`shall then destroy all copies of the inadvertently or unintentionally produced Protected
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`Materials and any documents, information or material derived from or based thereon.
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`The recipient may not sequester, use or disclose the information until the claim is
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`resolved. This includes a restriction against presenting the information to the court for
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`a determination of the claim of confidential treatment.
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`5. “CONFIDENTIAL” documents, information and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating
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`party, upon order of the Court, or as set forth in paragraph 12 herein:
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`a. outside counsel of record for the Parties in the Action3 in which the
`DESIGNATED MATERIAL is produced;
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`b. employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
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`
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`c. 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
`decisionmaking, (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;
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`3 The “Action” refers to one of Case Nos. 2:21-cv-00072-JRG, 2:21-cv-00024-JRG, 2:21-
`cv00026-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.
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`6
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`
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`d. 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 Party;4 (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 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.
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`4 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.
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`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;
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`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
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`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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`
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`6. A Party shall designate documents, information or material as “CONFIDENTIAL”
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`only upon a good faith belief that the documents, information or material contains
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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
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`respect to such documents, information or material.
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`7. Documents, information or material produced in this Action, including but not limited
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`to Protected Material designated as DESIGNATED MATERIAL, shall be used by the
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`Parties only in the litigation of this Action and shall not be used for any other purpose.
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`Any person or entity who obtains access to DESIGNATED MATERIAL or the
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`contents thereof pursuant to this Order shall not make any copies, duplicates, extracts,
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`summaries or descriptions of such DESIGNATED MATERIAL or any portion thereof
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`except as may be reasonably necessary in the litigation of this Action. Any such copies,
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`8
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`duplicates, extracts, summaries or descriptions shall be classified DESIGNATED
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`MATERIALS and subject to all of the terms and conditions of this Order.
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`8. To the extent a producing Party believes that certain Protected Material qualifying to
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`be designated CONFIDENTIAL is so sensitive that its dissemination deserves even
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`further limitation, the producing Party may designate such Protected Material
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`“RESTRICTED ‒ ATTORNEYS’ EYES ONLY,” or to the extent such Protected
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`Material includes computer Source Code5 and/or live data (that is, data as it exists
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`residing in a database or databases), the producing Party may designate such Protected
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`Material as “RESTRICTED CONFIDENTIAL SOURCE CODE” (“Source Code
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`Material”).
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`9. For Protected Material designated RESTRICTED ‒ ATTORNEYS’ EYES ONLY,
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`access to, and disclosure of, such Protected Material shall be limited to individuals
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`listed in paragraphs 5(a–b) and (d–f).
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`10. 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,”
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`which shall mean documents or information containing or substantively relating to
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`confidential, proprietary, and/or trade secret source code or technical design
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`5 “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
`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.
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`documentation (“Source Code Material”). For Protected Material designated
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`RESTRICTED CONFIDENTIAL SOURCE CODE,
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`the following additional
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`restrictions apply:
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`a. 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.
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`b. 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;
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`c. 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);
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`d. 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 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;
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`e. Access to Source Code Material shall be limited to (i) outside counsel; (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 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.
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`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 CONFIDENTIAL SOURCE CODE or (2) those pages
`containing quoted Source Code Material will be separately stamped and treated
`as RESTRICTED CONFIDENTIAL SOURCE CODE;
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`g. 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
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`6 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.
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`11
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`documents which, pursuant to the Court’s rules, procedures and order, must be
`filed or served electronically.7 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
`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
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`7 Drafts shall only include those excerpts the Receiving Party reasonably believes will be included
`in the final version.
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`12
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`i.
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`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;
`
`j. 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;
`
`k. 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 recorders, CDs, DVDs, or drives
`of any kind (e.g., USB memory sticks), shall be permitted in the room in which
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`Case 2:21-cv-00072-JRG-RSP Document 96 Filed 07/02/21 Page 14 of 26 PageID #: 2726
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`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 th