Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 1 of 54 PageID #:
`17595
`
`AO 88A (Rev. 12/20) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
`__________ District of __________
`
`Civil Action No.
`
`))))))
`
`Plaintiff
`v.
`
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`(Name of person to whom this subpoena is directed)
`’Testimon y: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must promptly confer in good faith with the
`party serving this subpoena about the following matters, or those set forth in an attachment, and you must designate one
`or more officers, directors, or managing agents, or designate other persons who consent to testify on your behalf about
`these matters:
`
`Place:
`
`Date and Time:
`
`The deposition will be recorded by this method:
`
`’ Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`material:
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`CLERK OF COURT
`
`OR
`
`Signature of Clerk or Deputy Clerk
`
`Attorney’s signature
`
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things before
`trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to
`whom it is directed. Fed. R. Civ. P. 45(a)(4).
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 2 of 54 PageID #:
`17596
`AO 88A (Rev. 12/20) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`’ I served the subpoena by delivering a copy to the named individual as follows:
`
`’ I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 3 of 54 PageID #:
`17597
`AO 88A (Rev. 12/20) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(i) disclosing a trade secret or other confidential research, development,
`or commercial information; or
`(ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
`(i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
`(ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(c) Place of Compliance.
`
`(1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
`(A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
`(B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
`(i) is a party or a party’s officer; or
`(ii) is commanded to attend a trial and would not incur substantial
`expense.
`
`(2) For Other Discovery. A subpoena may command:
`(A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
`(B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
`(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
`(2) Command to Produce Materials or Permit Inspection.
`(A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
`(B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
`(i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
`(ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
`(3) Quashing or Modifying a Subpoena.
`
`(A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`
`(i) fails to allow a reasonable time to comply;
`(ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
`(iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
`(iv) subjects a person to undue burden.
`(B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`
`(e) Duties in Responding to a Subpoena.
`
`(1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
`(A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
`(B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
`(C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
`(A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
`(B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 4 of 54 PageID #:
`17598
`
`ATTACHMENT A
`
`
`
`
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 5 of 54 PageID #:
`17599
`
`ATTACHMENT A
`
`DEFINITIONS AND INSTRUCTIONS
`
`Definitions:
`“LG,” “You,” “Your,” or “witness” shall refer to LG Electronics U.S.A. Inc., LG
`1.
`Electronics, Inc., any of its predecessors or successors, and any past or present parent, division,
`subsidiary, affiliate, joint venture, associated organization, director, officer, agent, employee,
`consultant, staff member, associate, partner, or other representative of LG Electronics U.S.A.
`Inc. or LG Electronics Inc.
`As used herein, “AGIS” shall refer to Plaintiff AGIS Software Development LLC
`2.
`including all predecessors, successors, subsidiaries, divisions, parents, and affiliates thereof, past
`or present, joint ventures, and other legal entities that are wholly or partially owned or controlled
`by AGIS, either directly or indirectly, and all past or present directors, principals, officers,
`owners, employees, agents, representatives, consultants, attorneys, and others acting for or on
`behalf of these same entities. For avoidance of doubt, “AGIS” includes Advanced Ground
`Information Systems Inc. and AGIS Holdings, Inc.
`As used herein, “This Litigation” means the above-captioned action AGIS
`3.
`Software Development LLC v. Samsung Electronics Co. Ltd. et al., No. 2:22-cv-00263-JRG-RSP
`(E.D. Tex.).
`As used herein, “Prior Litigation” means the action captioned as AGIS Software
`4.
`Development LLC v. LG Electronics, Inc., No. 2:17-cv-00515-JRG (E.D. Tex.). See Complaint
`attached as Attachment C.
`As used herein, “Asserted Patents” refers to U.S. Patent No. 8,213,970, U.S.
`5.
`Patent No. 9,467,838, and U.S. Patent No. 9,749,829.
`As used herein, “Document Subpoena” means the Document Subpoena served on
`6.
`You concurrently with this Deposition Subpoena.
`As used herein, “LG Products” refers to the following products accused in the
`7.
`Prior Litigation: V20, V30, G6, and G7 ThinQ.
`
`-1-
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 6 of 54 PageID #:
`17600
`
`As used herein, “document” shall have the full meaning ascribed to it by the
`8.
`Federal Rules of Civil Procedure and further is used in a broad sense to refer to any electronic
`information or any tangible object or thing that contains, conveys, or records information.
`As used herein, “and” and “or” shall be construed conjunctively and disjunctively
`9.
`so as to acquire the broadest meaning.
`As used herein, “any” and “all” shall each be construed to mean “each and every,”
`10.
`so as to acquire the broadest meaning.
`As used herein, the singular of any word shall include the plural, and the plural
`11.
`shall include the singular.
`Instructions:
`1.
`
`One or more representatives may be produced at deposition for one or more
`
`topics.
`
`For Your convenience, a copy of the Protective Order issued in this action is
`2.
`attached hereto as Attachment B.
`If in responding to these topics You claim any ambiguity in either a topic or a
`3.
`definition or instruction applicable thereto, identify in advance of the deposition the language
`You consider ambiguous and state the interpretation You are using in preparing Your witness(es)
`to testify.
`
`
`
`
`-2-
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 7 of 54 PageID #:
`17601
`
`TOPICS FOR DEPOSITION
`
`DEPOSITION TOPIC NO. 1:
`
`Your unit sales in the United States on a monthly or quarterly basis of the LG Products,
`
`including the time periods (e.g., months, quarters) during which the LG Products were sold
`
`between January 1, 2018, and July 14, 2022.
`
`DEPOSITION TOPIC NO. 2:
`
`Whether LG has marked the LG Products with the number of any of the Asserted Patents.
`
`DEPOSITION TOPIC NO. 3:
`
`Any efforts by AGIS to ensure the marking of LG Products with any of the Asserted
`
`Patents.
`
`DEPOSITION TOPIC NO. 4:
`
`Any documents produced by You in response to the Document Subpoena, including
`
`establishing the authenticity of those documents and, if applicable, that those documents qualify
`
`as business records under Fed. R. Evid. 803.
`
`-3-
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 8 of 54 PageID #:
`17602
`
`ATTACHMENT B
`
`
`
`
`
`
`
`

`

`Case 2:22-cv-00263-JRG-RSP Document 37 Filed 12/19/22 Page 1 of 21 PageID #: 1032Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 9 of 54 PageID #:
`
`17603
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`Plaintiff,
`
`v.
`SAMSUNG ELECTRONICS CO.,
`
`LTD., ET AL.,
`
`Defendants.
`
`
`
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`Case No. 2:22-cv-00263-JRG-RSP
`
`
`
`
`
`PROTECTIVE ORDER
`
`WHEREAS, Plaintiff AGIS Software Development LLC and Defendants Samsung
`
`Electronics Co., Ltd. and Samsung Electronics America, Inc., hereafter referred to as “the Parties,”
`
`believe that certain information that is or will be encompassed by discovery demands by the Parties
`
`involves the production or disclosure of trade secrets, confidential business information, or other
`
`proprietary information;
`
`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
`
`Federal Rule of Civil Procedure 26(c):
`
`
`
`1.
`
`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
`
`Each Party may designate as confidential for protection under this Order, in whole or in part,
`
`any document, information or material that constitutes or includes, in whole or in part,
`
`confidential or proprietary information or trade secrets of the Party or a Third Party to whom
`
`the Party reasonably believes it owes an obligation of confidentiality with respect to such
`
`document, information or material (“Protected Material”). Protected Material shall be
`
`designated by the Party producing it by affixing a legend or stamp on such document,
`
`

`

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`
`17604
`
`information
`
`or material
`
`as
`
`follows:
`
`“CONFIDENTIAL,”
`
`“RESTRICTED–
`
`ATTORNEYS’EYES ONLY,” “RESTRICTED CONFIDENTIAL SOURCE CODE.”
`
`The word “CONFIDENTIAL,” “RESTRICTED–ATTORNEYS’EYES ONLY,” or
`
`“RESTRICTED CONFIDENTIAL SOURCE CODE” shall be placed clearly on each page
`
`of the Protected Material (except deposition and hearing transcripts) for which such
`
`protection is sought. For deposition and hearing transcripts, the word “CONFIDENTIAL”
`
`shall be placed on the cover page of the transcript (if not already present on the cover page
`
`of the transcript when received from the court reporter) by each attorney receiving a copy
`
`of the transcript after that attorney receives notice of the designation of some or all of
`
`that transcript as Protected Material. For natively produced Protected Material, the word
`
`“CONFIDENTIAL” or other applicable designation shall be placed in the filename of each
`
`such natively produced document. All Protected Material not reduced to documentary,
`
`tangible or physical form or which cannot be conveniently designated as set forth herein
`
`shall be designated by the producing Party by informing the receiving Party of the
`
`designation in writing. Any documents (including physical objects) made available for
`
`inspection by counsel for the receiving Party prior to producing copies of selected items
`
`shall be considered, as a whole, to constitute Protected Material (unless otherwise
`
`designated at the time of inspection) and shall be subject to this Order. Thereafter, the
`
`producing Party shall have reasonable time to review and designate the appropriate
`
`documents or things as “CONFIDENTIAL,” “RESTRICTED–ATTORNEYS’EYES
`
`ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE” prior to furnishing
`
`copies to the receiving Party.
`
`2.
`
`Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of this
`
`
`
`2
`
`

`

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`
`17605
`
`Order with the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes Only”
`
`shall receive the same treatment as if designated “RESTRICTED–ATTORNEYS’ EYES
`
`ONLY” under this Order, unless and until such document is redesignated to have a different
`
`classification under this Order.
`
`3.
`
`With respect to documents, information or material designated “CONFIDENTIAL,”
`
`“RESTRICTED–ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL
`
`SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the provisions herein and
`
`unless otherwise stated, this Order governs, without limitation: (a) all documents,
`
`electronically stored information, and/or things as defined by the Federal Rules of Civil
`
`Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits
`
`or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings
`
`and other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions,
`
`extracts, digests and complete or partial summaries prepared from any DESIGNATED
`
`MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such
`
`under this Order.
`
`4.
`
`A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED–
`
`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”)
`
`may be made at any time. Inadvertent or unintentional production of documents,
`
`information or material that has not been designated as DESIGNATED MATERIAL shall
`
`not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party
`
`
`
`
`
`
`
`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
`class of materials designated as “CONFIDENTIAL,” “RESTRICTED–ATTORNEYS’ EYES
`ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE,” both individually and
`collectively.
`
`3
`
`

`

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`
`17606
`
`that inadvertently or unintentionally produces Protected Material without designating it as
`
`DESIGNATED MATERIAL may request destruction of that Protected Material by notifying
`
`the recipient(s), as soon as reasonably possible after the producing Party becomes aware of
`
`the inadvertent or unintentional disclosure and providing replacement Protected Material
`
`that is properly designated. The recipient(s) shall then destroy all copies of the inadvertently
`
`or unintentionally produced Protected Materials and any documents, information or material
`
`derived from or based thereon.2
`
`5.
`
`“CONFIDENTIAL” documents, information and material may be disclosed only to the
`
`following persons, except upon receipt of the prior written consent of the designating party,
`
`upon order of the Court, or as set forth in paragraph 12 herein:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
`
`outside counsel of record in this Action for the Parties;
`
`employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
`
`in-house counsel for the Parties who either have responsibility for making decisions
`dealing directly with the litigation of this Action, or who are assisting outside
`counsel in the litigation of this Action;
`
`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
`presently employed by the Parties hereto for purposes other than this Action, or by
`a competitor of a Party, nor anticipated at the time of retention to become an
`officer, director, or employee of a Party or a competitor of a Party;3 (2) before
`access is given, the consultant or expert has completed the Undertaking attached as
`Appendix A hereto and the same is served upon the producing Party with a current
`
`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.
`3 For avoidance of doubt, an independent expert or consultant retained (as opposed to employed)
`by a Party on another litigation would not be precluded under this section.
`
`4
`
`
`
`
`
`
`
`
`
`
`
`

`

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`
`17607
`
`curriculum vitae of the consultant or expert at least ten (10) days before access to
`the Protected Material is to be given to that consultant, technical advisor or expert,
`along with (i) the name, address, current curriculum vitae, current employer, and
`employment history for the past ten (10) years of the consultant, technical advisor,
`or expert; (ii) a list of the cases in which the consultant, technical advisor or expert
`has testified as an expert at trial or by deposition within the preceding five (5)
`years; and (iii) 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 within
`ten (10) 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 to
`disclosure of Protected Material to the consultant or expert. The Parties agree to
`promptly confer and use good faith to resolve any such objection. If the Parties
`are unable to resolve any objection, the objecting Party may file a motion with the
`Court within fifteen (15) days of the notice, or within such other time as the Parties
`may agree, seeking a protective order with respect to the proposed disclosure. The
`objecting Party shall have the burden of proving the need for a protective order. No
`disclosure shall occur until all such objections are resolved by agreement or Court
`order. A party who has not previously objected to disclosure of Protected Material
`to a consultant, technical advisor or expert with respect to previously produced
`information shall not be precluded from raising an objection to a consultant,
`technical advisor, or expert with respect to access to newly produced materials or
`information that are produced after the time for objecting to such consultant,
`technical advisor, or expert has expired. Any such objection shall be handled in
`accordance with the procedures set forth in this subsection (d)(2).
`
`(e)
`
`independent litigation support services, including persons working for or as court
`reporters, stenographic reporters or videographers, translators, graphics or design
`services, jury or trial consulting services, and photocopy, document imaging,
`document review, and database services retained by counsel and reasonably
`necessary to assist counsel with the litigation of this Action; and
`
`(f)
`
`the Court (including any Court-appointed mediators or advisors) and its personnel
`(under seal or other suitable precautions determined by the Court).
`
`6.
`
`A Party shall designate documents, information, or material as “CONFIDENTIAL” only
`
`upon a good faith belief that the documents, information or material contains confidential
`
`or proprietary information or trade secrets of the Party or a Third Party to whom the Party
`
`reasonably believes it owes an obligation of confidentiality with respect to such documents,
`
`information, or material.
`
`7.
`
`Documents, information, or material produced in this Action, including but not limited
`
`5
`
`
`
`
`
`
`
`
`
`

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`17608
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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 contents
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`thereof pursuant to this Order shall not make any copies, duplicates, extracts, summaries or
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`descriptions of such DESIGNATED MATERIAL or any portion thereof except as may be
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`reasonably necessary in the litigation of this Action. Any such copies, duplicates, extracts,
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`summaries, or descriptions shall be classified as DESIGNATED MATERIALS and subject
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`to all of the terms and conditions of this Order.
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`8.
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`To the extent a producing Party believes that certain Protected Material qualifying to be
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`designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
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`limitation, the producing Party may designate such Protected Material “RESTRICTED–
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`ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer
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`source code and/or live data (that is, data as it exists residing in a database or databases)
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`(“Source Code Material”),4 the producing Party may designate such Protected Material as
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`“RESTRICTED CONFIDENTIAL SOURCE CODE.”
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`9.
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`For Protected Material designated RESTRICTED–ATTORNEYS’ EYES ONLY, access
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`to, and disclosure of, such Protected Material shall be limited to individuals listed in
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`paragraphs 5(a-b) and (d-f).
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`4 “Source Code Material ”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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`Case 2:22-cv-00263-JRG-RSP Document 37 Filed 12/19/22 Page 7 of 21 PageID #: 1038Case 2:22-cv-00263-JRG-RSP Document 168-1 Filed 12/22/23 Page 15 of 54 PageID #:
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`17609
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`10.
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`For Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE,
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`the following additional restrictions apply:
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`(a)
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`(b)
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`(c)
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`(d)
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`Access to a Party’s Source Code Material shall be provided only on “stand-alone”
`computer(s) (that is, the computer may not be linked to any network, including a
`local area network (“LAN”), an intranet or the Internet). The stand-alone
`computer(s) may be connected to (i) a printer, or (ii) a device capable of
`temporarily storing electronic copies solely for the limited purposes permitted
`pursuant to paragraphs 10 (i and q) below. Additionally, except as provided in
`paragraph 10(q) below, the stand-alone computer(s) may only be located at the
`offices of the producing Party’s outside counsel;
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`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 9:00 a.m. through 5:00 p.m (local time). 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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`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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`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 Material 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). The receiving Party shall not erase, load, install, compile, or
`otherwise modify any program (or request that any other program be erased,
`loaded, installed, or otherwise modified by the producing Party) on the Source
`Code Review computer(s) without first submitting a written request and obtaining
`the producing Party’s agreement to the request;
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`(e)
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`Access to Protected Material designated RESTRICTED CONFIDENTIAL -
`SOURCE CODE shall be limited to (i) outside counsel, (ii) up to three (3) outside
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`Case 2:22-cv-00263-JRG-RSP D