Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 1 of 32 PageID #: 6362
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:21-CV-00186-JRG-RSP
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`
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`JAWBONE INNOVATIONS, LLC,
`Plaintiff,
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`v.
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`SAMSUNG ELECTRONICS CO. LTD.
`and SAMSUNG ELECTRONICS
`AMERICA, INC.,
`
`Defendants.
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`SUPPLEMENTAL PROTECTIVE ORDER
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`WHEREAS, the Court entered a Protective Order to protect Party and Non-party
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`confidential business information in the above referenced action on February 11, 2022 (Dkt. 43)
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`(“Protective Order”); and
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`WHEREAS, Jawbone Innovations, LLC (“Plaintiff”); Samsung Electronics Co. Ltd.,
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`and Samsung Electronics America, Inc. (collectively “Defendants”) (together, hereinafter
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`referred to as “the Parties”); and Qualcomm Incorporated (“QUALCOMM”), a non-party to
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`this action, may produce confidential Source Code (as defined below) and other documents in
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`this action that include or incorporate CONFIDENTIAL INFORMATION belonging to
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`QUALCOMM (“QUALCOMM Confidential Information”); and
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`WHEREAS the Parties and Non-Party QUALCOMM have agreed to provisions in
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`addition to those contained in the Protective Order to protect against misuse or disclosure of
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`such QUALCOMM Confidential Information;
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`WHEREFORE, IT IS HEREBY ORDERED that Source Code (as defined below) or
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`documents that incorporate QUALCOMM Confidential Information produced in connection
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`with the above-captioned matter that are designated as “QUALCOMM – OUTSIDE
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`1
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 2 of 32 PageID #: 6363
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`ATTORNEYS’ EYES ONLY” and “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY
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`–SOURCE CODE” shall be subject to the following restrictions:
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`I.
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`DEFINITIONS
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`1.
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`“QUALCOMM MATERIAL”: Confidential information (regardless of how
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`generated, stored, or maintained) or tangible things that include or incorporate Non-Party
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`QUALCOMM Confidential Information, that Non-Party QUALCOMM (i) would not normally
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`reveal to third parties except in confidence, or has undertaken with others to maintain in
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`confidence, (ii) believes in good faith is significantly sensitive, or (iii) protected by a right to
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`privacy under federal or state law, or any other applicable privilege or right related to
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`confidentiality or privacy. QUALCOMM MATERIAL includes all information, documents,
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`Source Code, and things produced, served, or otherwise provided in this action by any Party or
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`by Non-Party QUALCOMM, that include or incorporate QUALCOMM Confidential
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`Information.
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`2.
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” material:
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`information, documents, and things that include or incorporate QUALCOMM MATERIAL.
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`3.
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`“Source Code”: means human-readable representations of actually completed,
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`implemented, and/or realized software, firmware, and integrated circuits. Source Code includes,
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`but is not limited to, programming language text, symbolic representations of integrated circuits
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`(“Chip-Level Schematics”) or graphical depictions of physical configuration of semiconductor
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`material within integrated circuit die or chip (“Integrated Circuit Layouts”). Source Code
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`includes, but is not limited to, programming language text in “C,” “C++,” BREW, Java ME,
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`J2ME, assembler, digital signal processor (“DSP”), Hardware Design Language (“HDL”),
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`VHDL, or Verilog programming languages. Source Code in the form of programming language
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`2
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 3 of 32 PageID #: 6364
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`text shall be made available for inspection in ASCII text files. File formats within which Source
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`Code in the form of Chip-Level Schematics or Integrated Circuit Layouts may be made available
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`for inspection include, but are not limited to, pdf file format.
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`4.
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –SOURCE CODE”
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`Material: QUALCOMM MATERIAL that includes Source Code that constitute proprietary
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`technical or commercially sensitive competitive information that Non-Party QUALCOMM
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`maintains as highly confidential in its business, the disclosure of which is likely to cause harm
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`to the competitive position of Non-Party QUALCOMM.
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`5.
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`“Designated QUALCOMM Material”: material that is designated “QUALCOMM
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`- OUTSIDE ATTORNEYS’ EYES ONLY” or “QUALCOMM – OUTSIDE ATTORNEYS’
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`EYES ONLY –SOURCE CODE” under this Supplemental Protective Order.
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`6.
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`“Designated Source Code Material”: material that is designated “QUALCOMM -
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`OUTSIDE ATTORNEYS’ EYES ONLY –SOURCE CODE” under this Supplemental
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`Protective Order.
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`7.
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`“Personnel Retained by a Receiving Party in this Action” means any consultants,
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`experts, or outside counsel (including their support staff) that have been and continue to be
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`retained by a Receiving Party in this action. For the sake of clarity, any person who was
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`retained by a Receiving Party in this action will no longer fall under this definition if that
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`person ceases to be retained by a Receiving Party in this action.
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`8.
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`“Party” means any Party to the above-captioned action, including all of its
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`officers, directors, employees, consultants, retained experts, and all support staff thereof.
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`9.
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`“Producing Party” means a party or non-party that discloses or produces
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`Designated QUALCOMM Material in the above-captioned actions.
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`3
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`10.
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`“Receiving Party” a Party that receives Designated QUALCOMM Material from
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`a Producing Party in the above-captioned actions.
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`11.
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`“Authorized Reviewer(s)”
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`shall mean persons authorized
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`to
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`review
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`“QUALCOMM-OUTSIDE ATTORNEYS’ EYES ONLY” and “QUALCOMM – OUTSIDE
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`ATTORNEYS’EYES ONLY –SOURCE CODE” material in accordance with this Supplemental
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`Protective Order and the Protective Order.
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`12.
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`“Counsel of Record”: (i) Outside Counsel who appears on the pleadings, or has
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`entered an appearance in this action, as counsel for a Party, and (ii) partners, principals,
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`counsel, associates, employees, and contract attorneys of such Outside Counsel to whom it is
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`reasonably necessary to disclose the information for this litigation, including supporting
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`personnel employed by the attorneys, such as paralegals, legal translators, legal secretaries,
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`legal clerks and shorthand reporters.
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`13.
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`“Outside Consultant”: a person with specialized knowledge or experience in a
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`matter pertinent to the litigation who has been retained by Counsel of Record to serve as an
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`expert witness or a litigation consultant in this action (including any necessary support
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`personnel of such person to whom disclosure is reasonably necessary for this litigation), and
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`who is not a current employee of a Party, of a competitor of a Party, or of Non-Party
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`QUALCOMM, and who, at the time of retention, is not anticipated to become an employee of,
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`or a non-litigation consultant of: 1) a Party, 2) a competitor of a Party, 3) a competitor of Non-
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`Party QUALCOMM, or of 4) Non- Party QUALCOMM.
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`14.
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`“Professional Vendors”: persons or entities that provide litigation support
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`services (e.g., photocopying; videotaping; translating; designing and preparing exhibits,
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`graphics, or demonstrations; organizing, storing, retrieving data in any form or medium; etc.)
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`4
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 5 of 32 PageID #: 6366
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`and their employees and subcontractors who have been retained or directed by Counsel of
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`Record in this action, and who are not current employees of a Party, a competitor of a Party, or
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`of Non-Party QUALCOMM, and who, at the time of retention, are not anticipated to become
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`employees of: 1) a Party, 2) a competitor of a Party, 3) a competitor of Non-Party
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`QUALCOMM, or 4) Non-Party QUALCOMM. This definition includes ESI vendors, and
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`professional jury or trial consultants retained in connection with this litigation to assist a
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`Party, Counsel of Record, or any Outside Consultant in their work. Professional vendors do
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`not include consultants who fall within the definition of Outside Consultant.
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`II.
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`RELATIONSHIP TO PROTECTIVE ORDER
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`15.
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`This Supplemental Protective Order shall not diminish any existing restriction
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`with respect
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`to Designated QUALCOMM Material. The Parties and QUALCOMM
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`acknowledge and agree that this Supplemental Protective Order is a supplement to the
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`Protective Order entered in this action on the date below in the United States District Court,
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`Eastern District of Texas.
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`16.
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`The Protective Order applies to all material designated pursuant to this
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`Supplemental Protective Order. To the extent that there is any confusion or conflict between
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`protective orders with respect to Designated QUALCOMM Material, then this Supplemental
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`Protective Order governs.
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`17.
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`In addition to the restrictions outlined in this Supplemental Protective Order,
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`material designated as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –SOURCE
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`CODE” shall be subject to obligations with respect to “RESTRICTED CONFIDENTIAL -
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`SOURCE CODE” materials outlined in the Protective Order.
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`18.
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`In addition to the restrictions outlined in this Supplemental Protective Order,
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`5
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 6 of 32 PageID #: 6367
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`material designated as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” shall be
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`subject to obligations with respect to “RESTRICTED CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY” material outlined in the Protective Order.
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`III.
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`SCOPE
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`19.
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`The protections conferred by this Supplemental Protective Order cover not only
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`Designated QUALCOMM Material (as defined above), but also any information copied or
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`extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof.
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`Nothing herein shall alter or change in any way the discovery provisions of the Federal Rules of
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`Civil Procedure or any applicable local rules or Court Orders. Identification of any individual
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`pursuant to this Supplemental Protective Order does not make that individual available for
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`deposition, or any other form of discovery outside of the restrictions and procedures of the
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`Federal Rules of Civil Procedure or any applicable rules or Court Orders.
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`20.
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`This Supplemental Protective Order shall not prevent a disclosure to which Non-
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`Party QUALCOMM consents in writing before that disclosure takes place.
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`21.
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`This Supplemental Protective Order shall apply to all Designated QUALCOMM
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`Material that is produced or provided for inspection in this action, including all Designated
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`QUALCOMM Material that is in the possession, custody or control of Non-party
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`QUALCOMM or any Party in this action, or that is otherwise relevant to this action.
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`IV. ACCESS TO DESIGNATED QUALCOMM MATERIAL
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`22.
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`Access to “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” Material:
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`Unless otherwise ordered by the Court or permitted in writing by Non-Party QUALCOMM, a
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`Receiving Party may disclose any information, document or thing designated “QUALCOMM –
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`OUTSIDE ATTORNEYS’ EYES ONLY” only to:
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`6
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 7 of 32 PageID #: 6368
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`a.
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`Persons who appear on the face of Designated QUALCOMM Material as
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`an author, addressee or recipient thereof, or persons who have been
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`designated under FRCP 30(b)(6) to provide testimony on behalf of a
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`b.
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`c.
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`Producing Party;
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`Counsel of Record;
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`Outside Consultants of the Receiving Party to whom disclosure is
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`reasonably necessary for this action, and who have, after the date of this
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`Supplemental Protective Order, signed the “Acknowledgement And
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`Agreement To Be Bound By Supplemental Protective Order Governing
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`Confidential Information of Non-Party Qualcomm In This Case”
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`attached hereto as Exhibit A, and the “Certification Of Consultant Re
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`Supplemental Protective Order Governing Confidential Information of
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`Non-Party Qualcomm In This Case,” attached hereto as Exhibit B;
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`d.
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`Any designated arbitrator or mediator who is assigned to hear this matter,
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`or who has been selected by the Parties, and his or her staff; who have,
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`after the date of this Supplemental Protective Order, signed the
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`“Acknowledgement And Agreement To Be Bound By Supplemental
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`Protective Order Governing Confidential Information of Non-Party
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`Qualcomm In This Case” attached hereto as Exhibit A, and the
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`“Certification Of Consultant Re Supplemental Protective Order
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`Governing Confidential Information of Non-Party Qualcomm In This
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`Case,” attached hereto as Exhibit B, as well as any arbitrator’s or
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`mediator’s staff who have also signed Exhibits A and B;
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`7
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 8 of 32 PageID #: 6369
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`e.
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`f.
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`Court reporters and videographers employed in connection with this
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`action; and
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`Professional Vendors to whom disclosure is reasonably necessary for this
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`action, and a representative of which has signed the “Acknowledgement
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`And Agreement To Be Bound By Supplemental Protective Order
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`Governing Confidential Information of Non-Party Qualcomm In This
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`Case” attached hereto as Exhibit A, subject to the following exception:
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`Designated QUALCOMM Material shall not be disclosed to mock jurors
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`without Non-Party QUALCOMM’s express written consent;
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`g.
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`The Court, its personnel and the jury.
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`23.
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`Access to “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
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`SOURCE CODE” Material: Unless otherwise ordered by the Court or permitted in writing by
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`Non-Party QUALCOMM, a Receiving Party may disclose any information, document, or thing
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`designated “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –SOURCE CODE”
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`only to:
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`a.
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`Persons who appear on the face of Designated QUALCOMM Material as
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`an author, addressee or recipient thereof, or persons who have been
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`designated under FRCP 30(b)(6) to provide testimony of behalf of a
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`b.
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`c.
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`Producing Party or Qualcomm regarding the same;
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`Counsel of Record;
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`Outside Consultants of the Receiving Party to whom disclosure is
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`reasonably necessary for this litigation, and who have, after the date of
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`this Supplemental Protective Order, signed the “Acknowledgement And
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`8
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 9 of 32 PageID #: 6370
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`Agreement To Be Bound By Supplemental Protective Order Governing
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`Confidential Information of Non-Party Qualcomm In This Case”
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`attached hereto as Exhibit A, and the “Certification Of Consultant Re
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`Supplemental Protective Order Governing Confidential Information of
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`Non-Party Qualcomm In This Case,” attached hereto as Exhibit B;
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`d.
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`Any designated arbitrator or mediator who is assigned to hear this matter,
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`or who has been selected by the Parties, and his or her staff; who have,
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`after the date of this Supplemental Protective Order, signed the
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`“Acknowledgement And Agreement To Be Bound By Supplemental
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`Protective Order Governing Confidential Information of Non-Party
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`Qualcomm In This Case” attached hereto as Exhibit A, and the
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`“Certification Of Consultant Re Supplemental Protective Order
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`Governing Confidential Information of Non-Party Qualcomm In This
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`Case,” attached hereto as Exhibit B, as well as any arbitrator’s or
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`mediator’s staff who have also signed Exhibits A and B, provided,
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`however, that before such disclosure, QUALCOMM is provided notice
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`including: (a) the individual’s name and business title; (b) business
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`address; (c) business or professions; and (d) the individual’s CV.
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`QUALCOMM shall have five (5) business days from receipt of the
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`notice to object in writing to such disclosure (plus three (3) extra days if
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`notice is given other than by hand delivery, e-mail delivery or facsimile
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`transmission). After the expiration of the 5 business days (plus 3 days, if
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`appropriate) period,
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`if no objection has been asserted,
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`then
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`9
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 10 of 32 PageID #: 6371
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`e.
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`f.
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE
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`CODE” materials may be disclosed pursuant to the terms of this
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`Supplemental Protective Order;
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`Court reporters and videographers employed in connection with this
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`action, subject to the provisions provided in subparagraph 32(g) herein;
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`Professional Vendors to whom disclosure is reasonably necessary for this
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`action, and a representative of which has signed the “Acknowledgement
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`And Agreement To Be Bound By Supplemental Protective Order
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`Governing Confidential Information of Non-Party Qualcomm In This
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`Case” attached hereto as Exhibit A, subject to the following exception:
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`Designated QUALCOMM Material shall not be disclosed to mock jurors
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`without Non-Party QUALCOMM’s express written consent; and
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`g.
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`The Court, its personnel and the jury.
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`24.
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`Notwithstanding the Protective Order, unless otherwise ordered or agreed in
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`writing by Non-Party QUALCOMM, Designated QUALCOMM Material may not be disclosed
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`to employees of a Receiving Party, including its in-house attorneys and support staff.
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`25.
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`Notwithstanding the Protective Order, unless otherwise ordered or agreed in
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`writing by Non-Party QUALCOMM, Designated QUALCOMM Material may not be disclosed
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`to mock jurors.
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`26.
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`The Parties acknowledge that Designated QUALCOMM Material also may be
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`subject to the US government export control and economic sanctions laws (“Export Controlled
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`Information”), including the Export Administration Regulations (“EAR”, 15 CFR 730 et seq.,
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`http://www.bis.doc.gov/ ) administered by the Department of Commerce, Bureau of Industry
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`10
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 11 of 32 PageID #: 6372
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`and Security, and
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`the Foreign Asset Control Regulations (31 CFR 500 et seq.,
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`http://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury,
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`Office of Foreign Assets Control (“OFAC”). Receiving Parties may not directly or
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`indirectly export, re-export, transfer or release (collectively, “Export”) any Designated QUALCOMM
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`Material to any destination, person, entity or end use prohibited or restricted under US law without prior
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`US government authorization to the extent required by regulation. The US government maintains
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`embargoes and sanctions against the countries listed in Country Groups E:1/2 of the EAR (Supplement 1
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`to part 740) Export Controlled Information disclosed in this action will be used only for the purposes of
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`this action. Outside Counsel or other individuals authorized to receive Export Controlled Information
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`will not disclose, export, or transfer, in any manner, Export Controlled Information to any foreign person
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`except as permitted by U.S. law, and will not transport any such document outside of U.S. territory,
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`without prior written approval of the Bureau of Industry and Security or other appropriate U.S.
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`government department or agency, except as permitted by U.S. law.
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`27.
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`Receiving Party may host “QUALCOMM – OUTSIDE ATTORNEYS’ EYES
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`ONLY” Material only on either 1) any system inside the firewall of a law firm representing the
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`Receiving Party, or 2) inside the system of a professional ESI Vendor retained by Counsel of
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`Record of the Receiving Party. “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY”
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`Material also cannot be sent or transmitted to any person, location, or vendor outside of the
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`United States except to Counsel of Record and Outside Consultants designated pursuant to
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`subparagraphs 22(c) and 23(c) above. To the extent that any “QUALCOMM – OUTSIDE
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`ATTORNEYS’ EYES ONLY” Material is transmitted from or to authorized recipients outside
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`of the Receiving Party’s Outside Counsel’s office, or outside of the ESI Vendor’s system, the
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`transmission shall be by hand (and encrypted if in electronic format), by a secure transport
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`carrier (e.g., Federal Express), or by secure electronic means, such as email using an encrypted
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`11
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 12 of 32 PageID #: 6373
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`password protected container (other
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`than Trucrypt), or download via secure FTP.
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –SOURCE CODE” may not be
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`transmitted by electronic means; however, this should not be understood to prohibit the
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`electronic transmittal of testifying experts’ expert reports or drafts, court filings, and trial
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`demonstratives, thereof that may refer to QUALCOMM – OUTSIDE ATTORNEYS’ EYES
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`ONLY –SOURCE CODE, subject to the limitations set forth in Section 32(g) herein, and as
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`long as such electronic transmittal is by secure electronic means, such as email using an encrypted
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`password protected container (other than Trucrypt), or download via secure FTP. Court filings
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`containing QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY and QUALCOMM – OUTSIDE
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`ATTORNEYS’ EYES ONLY –SOURCE CODE may be submitted via the Court’s ECF filing system
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`subject to the limitations set forth in Section 32(g) herein.
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`28.
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`Each person to whom Designated QUALCOMM Material may be disclosed, and
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`who is required to sign the “Acknowledgement And Agreement To Be Bound By Supplemental
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`Protective Order Governing Confidential Information of Non-Party Qualcomm In This Case”
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`attached hereto as Exhibit A and, if applicable, the “Certification Of Consultant Re
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`Supplemental Protective Order Governing Confidential Information of Non-Party Qualcomm In
`
`This Case,” attached hereto as Exhibit B, shall do so, prior to the time such Designated
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`QUALCOMM Material is disclosed to him or her. Counsel for the Receiving Party who makes
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`any disclosure of Designated QUALCOMM Material shall retain each original executed
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`certificate and, upon written request, shall provide copies to counsel for Non-Party
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`QUALCOMM at the termination of this action.
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`29.
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`Absent written permission from Non-Party QUALCOMM, persons not
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`permitted access to Designated QUALCOMM Material under the terms of this Supplemental
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`Protective Order shall not be present at depositions while Designated QUALCOMM Material is
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`12
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 13 of 32 PageID #: 6374
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`discussed or otherwise disclosed. Pre-trial and trial proceedings shall be conducted in a manner,
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`subject to the supervision of the Court, to protect Designated QUALCOMM Material from
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`disclosure to persons not authorized to have access to such Designated QUALCOMM Material.
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`Any Party intending to disclose or discuss Designated QUALCOMM Material at pretrial or trial
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`proceedings must give advance notice to the Producing Party to assure the implementation of
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`the terms of this Supplemental Protective Order.
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`V.
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`ACCESS BY OUTSIDE CONSULTANTS
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`30.
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`Notice. If a Receiving Party wishes to disclose Designated QUALCOMM
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`Material to any Outside Consultant, Receiving Party must, prior to the Outside Consultant
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`being granted access to any Designated QUALCOMM Material, provide notice to counsel for Non-
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`Party QUALCOMM, which notice shall include: (a) the individual’s name and business title; (b) country
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`of citizenship; (c) business address; (d) business or profession; (e) the individual’s CV; (f) any previous
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`or current relationship (personal or professional) with Non-Party QUALCOMM or any of the Parties to
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`this action; (g) a list of other cases in which the individual has testified (at trial or deposition) within the
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`last six years; (h) a list of all companies with which the individual has consulted or by which the
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`individual has been employed within the last four years, the dates of the consultancy or employment, a
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`brief description of the subject matter of the consultancy or employment, and (i) copies of the
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`“Acknowledgement and Agreement To Be Bound By Supplemental Protective Order Governing
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`Confidential Information of Non-Party Qualcomm In This Case,” attached as Exhibit A, and the
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`“Certification Of Consultant Re Supplemental Protective Order Governing Confidential Information of
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`Non-Party Qualcomm In This Case,” attached hereto as Exhibit B, that have both been signed by that
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`Outside Consultant.
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`31. Objections. With respect to Outside Consultants that have not been previously
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`disclosed to Non-Party QUALCOMM, Non-Party QUALCOMM shall have five (5) business
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`13
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 14 of 32 PageID #: 6375
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`days, starting from the first business day following the date upon which Receiving Party
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`provides the notice and all information required by paragraph 30 to the Producing Party, to
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`object for good cause in writing to such disclosure (plus three (3) extra days if notice is given in
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`any manner other than by hand delivery, e-mail delivery or facsimile transmission). After the
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`expiration of the 5 business days (plus 3-days, if appropriate) period, if no objection for good
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`cause has been asserted by Non-Party QUALCOMM, then Designated QUALCOMM Material
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`may be disclosed to the Outside Consultant pursuant to the terms of this Supplemental
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`Protective Order. Any objection by Non-Party QUALCOMM must be made for good cause, and
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`must set forth in detail the grounds on which it is based. Should Receiving Party disagree with the
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`basis for the objection(s), Receiving Party must first attempt to resolve the objection(s)
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`informally with Non-Party QUALCOMM. If the informal efforts do not resolve the dispute
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`within five (5) business days from the date upon which Receiving Party was first notified of
`
`any objection for good cause by Non-Party QUALCOMM, Receiving Party may file a motion
`
`requesting that the objection(s) be quashed after that five (5) day period has passed. Non-Party
`
`Qualcomm shall have the burden of proof on the issue of the sufficiency of the objection(s). Pending a
`
`ruling by the Court upon any such objection(s), or the subsequent resolution of the objection for good
`
`cause by Receiving Party and Non-Party QUALCOMM, the discovery material shall not be disclosed to
`
`the person objected to by Non-Party QUALCOMM.
`
`PRODUCTION OF QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
`VI.
`SOURCE CODE MATERIAL
`
`
`32.
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`Non-Party QUALCOMM’s Source Code:
`
`a.
`
`To the extent that a Producing Party makes Non-Party QUALCOMM’s
`
`Source Code available for inspection:
`
`(i) The Producing Party shall make all relevant and properly
`
`
`
`14
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 15 of 32 PageID #: 6376
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`requested Non-Party QUALCOMM Source Code available electronically
`
`and in text searchable form (1) if produced by Non-Party QUALCOMM,
`
`in a separate room at a secure facility selected by Non-Party
`
`QUALCOMM or (2) if produced by Defendants, at the offices of
`
`Counsel of Record for the producing Defendant or at a secure facility
`
`approved by QUALCOMM. The Producing Party shall make the Source
`
`Code available for inspection on a stand-alone, non-networked personal
`
`computer running a reasonably current version of the Microsoft
`
`Windows operating system (“Source Code Computer”). Alternatively,
`
`solely at the option of the Producing Party, the Producing Party may
`
`make such source code available on a Source Code Computer that is
`
`networked,
`
`in a configuration deemed
`
`secure by Non-Party
`
`QUALCOMM. The Source Code Computer shall be configured to permit
`
`review of the Source Code through a password-protected account having
`
`read-only access. To facilitate review of the Source Code at the secure
`
`facility, the Receiving Party may use appropriate tool software on the
`
`Source Code Computer, which shall be installed by the Producing Party,
`
`including at least one text editor like Visual Slick Edit that is capable of printing
`
`out Source Code with page and/or line numbers, a source code comparison tool
`
`like Winmerge, and at least one multi-text file text search tool such as “grep.”
`
`Should it be necessary, other mutually agreed upon tools may be used. Licensed
`
`copies of other mutually agreed upon tool software shall be installed on the
`
`Source Code Computer by the Producing Party and paid for by the Receiving
`
`Party.
`
`
`
`15
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 16 of 32 PageID #: 6377
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`(ii) In the event a Producing Party makes Chip-Level Schematics
`
`or Integrated Circuit Layouts available for review, the Producing Party
`
`shall ensure that the Source Code Computers include software sufficient
`
`to allow a user to view such types of Source Code.
`
`b.
`
`The Producing Party shall provide access to the Source Code Computer
`
`during the normal operating hours of the secure facility.
`
`c.
`
`The Source Code Computers shall be equipped to print PDF copies of the
`
`Source Code so that the Receiving Party can designate the Source Code
`
`for which it would like hard-copy printouts which shall be printed by the
`
`Producing Party on watermarked pre-Bates numbered paper after the
`
`review. Additionally, the Receiving Party may not print any continuous
`
`block of source code that results in more than 50 consecutive printed
`
`pages, except that Authorized Reviewer(s) may request the printing of a
`
`continuous block of more than 50 pages, which request shall not be
`
`unreasonably denied by the Producing Party. Counsel for the Producing
`
`Party will keep the original printouts, and shall provide copies of such
`
`original printouts to counsel for the Receiving Party within seven (7)
`
`days of (1) any request by the Receiving Party, or (2) otherwise being
`
`notified that such original printouts have been made or designated.
`
`Counsel of Record for the Receiving Party may request up to 10 copies of
`
`each original printout of Source Code. No more than 500 original printouts of
`
`Source Code for any software release or hardware product may be in printed
`
`form at any one time, without the express written consent of Non-Party
`
`QUALCOMM, which shall not be unreasonably denied. All printed Source
`
`
`
`16
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 17 of 32 PageID #: 6378
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`Code shall be logged by Receiving Party’s Counsel of Record and/or other
`
`Personnel Retained by a Receiving Party in this action as noted in subparagraph
`
`32 (i) below. No additional electronic copies of the Source Code shall be
`
`provided by the Producing Party. Hard copies of the Source Code also may not
`
`be converted into an electronic document, and may not be scanned using optical
`
`character recognition (“OCR”) technology. Only printouts of Source Code may
`
`be made, and such printouts, where made of programming language text, must
`
`include (1) directory path information and filenames from which the Source
`
`Code came and (2) line numbers. The Producing Party may refuse to provide
`
`copies of Source Code printouts that fail to comply with this section.
`
`d.
`
`Authorized Reviewer(s) in this action shall not print Source Code which
`
`have not been reviewed on the Source Code Computer, or in order to
`
`review the 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 and QUALCOMM acknowledge and
`
`agree that the purpose of the protections herein would be frustrated by
`
`such actions.
`
`e.
`
`Authorized Reviewer(s) are prohibited from bringing outside electronic
`
`devices, including but not limited to laptops, floppy drives, zip drives, or
`
`other hardware into the secure room, except as outlined in Paragraph
`
`32(f). Nor shall any cellular telephones, personal digital assistants
`
`(PDAs), Blackberries, cameras, voice recorders, Dictaphones, external
`
`or portable telephone jacks or other outside electronic devices be permitted
`
`inside the secure room, except for medical devices, implants, or equipment
`
`
`
`17
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`Case 2:21-cv-00186-JRG-RSP Document 97 Filed 08/03/22 Page 18 of 32 PageID #: 6379
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`reasonably necessary for any legitimate medical reason.
`
`f.
`
`If any Authorized Reviewer(s) reviewing Non-Party QUALCOMM’s
`
`Source Code seeks to take notes, all such notes will be taken on bound
`
`(spiral or other type of permanently bound) notebooks. No loose paper or
`
`other paper that can be used in a printer may be brought into the secure
`
`room. In addition to taking notes on bound notebooks, an Authorized
`
`Reviewer may also bring a USB memory device to the secure room, to be
`
`inserted into a notetaking laptop computer provided by the Producing
`
`Party or the Producing Party’s vendor. The notetaking laptop computer
`
`shall be configured with Microsoft Word, such that the Reviewing Party
`