Case 2:22-cv-00263-JRG-RSP Document 37 Filed 12/19/22 Page 1 of 21 PageID #: 1032
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`AGIS SOFTWARE DEVELOPMENT LLC,
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`Plaintiff,
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`v.
`SAMSUNG ELECTRONICS CO.,
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`LTD., ET AL.,
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`Defendants.
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`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
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`Case No. 2:22-cv-00263-JRG-RSP
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`PROTECTIVE ORDER
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`WHEREAS, Plaintiff AGIS Software Development LLC and Defendants Samsung
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`Electronics Co., Ltd. and Samsung Electronics America, Inc., hereafter referred to as “the Parties,”
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`believe that certain information that is or will be encompassed by discovery demands by the Parties
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`involves the production or disclosure of trade secrets, confidential business information, or other
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`proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
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`Federal Rule of Civil Procedure 26(c):
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`1.
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`Each Party may designate as confidential for protection under this Order, in whole or in part,
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`any document, information or material that constitutes or includes, in whole or in part,
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`confidential or proprietary information or trade secrets of the Party or a Third Party to whom
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`the Party reasonably believes it owes an obligation of confidentiality with respect to such
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`document, information or material (“Protected Material”). Protected Material shall be
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`designated by the Party producing it by affixing a legend or stamp on such document,
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`information
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`or material
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`as
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`follows:
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`“CONFIDENTIAL,”
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`“RESTRICTED–
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`ATTORNEYS’EYES ONLY,” “RESTRICTED CONFIDENTIAL SOURCE CODE.”
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`The word “CONFIDENTIAL,” “RESTRICTED–ATTORNEYS’EYES ONLY,” or
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`“RESTRICTED CONFIDENTIAL SOURCE CODE” shall be placed clearly on each page
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`of the Protected Material (except deposition and hearing transcripts) for which such
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`protection is sought. For deposition and hearing transcripts, the word “CONFIDENTIAL”
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`shall be placed on the cover page of the transcript (if not already present on the cover page
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`of the transcript when received from the court reporter) by each attorney receiving a copy
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`of the transcript after that attorney receives notice of the designation of some or all of
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`that 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 each
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`such natively produced document. All Protected Material not reduced to documentary,
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`tangible or physical form or which cannot be conveniently designated as set forth herein
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`shall be designated by the producing Party by informing the receiving Party of the
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`designation in writing. Any documents (including physical objects) made available for
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`inspection by counsel for the receiving Party prior to producing copies of selected items
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`shall be considered, as a whole, to constitute Protected Material (unless otherwise
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`designated at the time of inspection) and shall be subject to this Order. Thereafter, the
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`producing Party shall have reasonable time to review and designate the appropriate
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`documents or things as “CONFIDENTIAL,” “RESTRICTED–ATTORNEYS’EYES
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`ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE” prior to furnishing
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`copies to the receiving Party.
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`2.
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`Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of this
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`2
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`Order with the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes Only”
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`shall receive the same treatment as if designated “RESTRICTED–ATTORNEYS’ EYES
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`ONLY” under this Order, unless and until such document is redesignated to have a different
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`classification under this Order.
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`3.
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`With respect to documents, information or material designated “CONFIDENTIAL,”
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`“RESTRICTED–ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL
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`SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the provisions herein and
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`unless otherwise stated, this Order governs, without limitation: (a) all documents,
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`electronically stored information, and/or things as defined by the Federal Rules of Civil
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`Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as exhibits
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`or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings
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`and other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions,
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`extracts, digests and complete or partial summaries prepared from any DESIGNATED
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`MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such
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`under this Order.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED–
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`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”)
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`may be made at any time. Inadvertent or unintentional production of documents,
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`information or material that has not been designated as DESIGNATED MATERIAL shall
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`not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party
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`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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`3
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`that inadvertently or unintentionally produces Protected Material without designating it as
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`DESIGNATED MATERIAL may request destruction of that Protected Material by notifying
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`the recipient(s), as soon as reasonably possible after the producing Party becomes aware of
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`the inadvertent or unintentional disclosure and providing replacement Protected Material
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`that is properly designated. The recipient(s) shall then destroy all copies of the inadvertently
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`or unintentionally produced Protected Materials and any documents, information or material
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`derived from or based thereon.2
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`5.
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`“CONFIDENTIAL” documents, information and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating party,
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`upon order of the Court, or as set forth in paragraph 12 herein:
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`(a)
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`(b)
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`(c)
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`(d)
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`outside counsel of record in this Action for the Parties;
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`employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
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`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;
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`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
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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.
`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.
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`4
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`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).
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`(e)
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`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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`6.
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`A Party shall designate documents, information, or material as “CONFIDENTIAL” only
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`upon a good faith belief that the documents, information or material contains confidential
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`or proprietary information or trade secrets of the Party or a Third Party to whom the Party
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`reasonably believes it owes an obligation of confidentiality with respect to such documents,
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`information, or material.
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`7.
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`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 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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`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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`consultants or experts5 (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; 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 this subparagraph shall not retain or
`be given copies of the Source Code Materials except while so testifying. A
`receiving Party may include excerpts of Source Code Material in a pleading,
`exhibit, expert report, discovery document, deposition transcript, other Court
`document (“Source Code Document”), provided that the Source Code Documents
`are appropriately marked under this Order, restricted to those who are entitled to
`have access to them as specified herein, and, if filed with the Court, filed under
`seal in accordance with the Court’s rules, procedures and orders. 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;
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`(f)
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`To the extent portions of Source Code Material are quoted in a Source Code
`Document, either (1) the entire Source Code Document will be stamped and treated
`as RESTRICTED CONFIDENTIAL SOURCE CODE or (2) those pages containing
`quoted Source Code Material will be separately stamped and treated as
`RESTRICTED CONFIDENTIAL SOURCE CODE;
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`(g)
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`Except as set forth herein, no electronic copies or images of Source Code Material
`shall be made without prior written consent of the producing Party, except as
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`5 For the purposes of this paragraph, an outside consultant or expert is defined to include the outside
`consultant’s or expert’s direct reports and other support personnel, such that the disclosure to a
`consultant or expert who employs others within his or her firm to help in his or her analysis shall
`count as a disclosure to a single consultant or expert.
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`8
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`(h)
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`(i)
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`(j)
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`necessary to create documents which, pursuant to the Court’s rules, procedures,
`and order, must be filed or served electronically;
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`No person shall copy, e-mail, transmit, upload, download, print, photograph or
`otherwise duplicate
`any portion of
`the designated
`“RESTRICTED
`CONFIDENTIAL SOURCE CODE” material, except that the Receiving Party
`may request paper copies (“Source Code Printouts”) 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 print no more than 25 consecutive
`pages, or an aggregate total of more than 500 pages, of source code during the
`duration of the case without prior written approval by the producing Party, with
`such approval not to be unreasonably withheld. The receiving Party shall not
`request paper copies for the purposes of reviewing the source code other than
`electronically as set forth in paragraph (a) in the first instance. Within 5 business
`days or with reasonable notice to the requesting Party, such additional time as
`necessary due to volume requested, 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 two additional sets (or
`subsets) of printed source code may be requested and provided by the producing
`Party in a timely fashion. In the event that the producing Party believes that a
`particular printing request is unreasonable or the receiving Party seeks to print
`additional pages exceeding the printing limits described above, the producing Party
`and receiving Party shall meet and confer in good faith to attempt to resolve this
`dispute without the Court’s involvement. If they cannot resolve the issue, either
`Party may seek an order from the Court of whether the Printed Source Code in
`question is reasonably necessary to any case preparation activity. Contested Source
`Code printouts need not be produced to the requesting Party until the matter is
`resolved by the Court;
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`The receiving Party shall be permitted to make three (3) copies of printouts and
`photocopies of Source Code Material, all of which shall be designated and clearly
`labeled “RESTRICTED CONFIDENTIAL SOURCE CODE,” and the receiving
`Party shall maintain a log of all such files that are printed or photocopied;
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`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 printouts are
`kept in a secure manner that ensures access is limited to the persons authorized
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`under this Order;
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`(k) Outside counsel and outside consultants or experts of a receiving Party may take
`notes during any Source Code inspection 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. 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.
`Any such notes may be taken by hand or on a notetaking computer that is not linked
`to any network. The receiving Party is permitted to print notes from the notetaking
`computer at the end of each day or request that such notes be permitted to be copied
`onto a USB device. For the avoidance of doubt, notes taken by outside counsel
`and outside consultants, or experts of a receiving Party are protected work product
`and remain work product even if saved on the notetaking computer. The producing
`Party is not permitted to review the notes of outside counsel or outside consultants
`of a receiving Party. Notwithstanding the foregoing, any such notes shall be
`stamped and treated as “RESTRICTED CONFIDENTIAL SOURCE CODE;”
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`(l) A list of names of persons who will review Source Code Material on the stand-
`alone computer(s) will be provided to the producing Party in conjunction with any
`written (including email) notice requesting inspection. Prior to the first inspection
`of any Source Code Material on the stand-alone computer(s), the receiving Party
`shall provide five (5) business days’ notice to schedule the initial inspection with
`the producing Party. The receiving Party shall provide three (3) business days’
`notice in advance of scheduling any additional inspections. Such notice shall
`include the names and titles for every individual from the receiving Party who will
`attend the inspection. The producing Party may maintain a daily log of the names
`of persons who enter the locked room to view the source code and when they enter
`and depart;
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`(m) The receiving Party shall maintain a log of all electronic images and paper copies
`of Source Code in its possession or in the possession of retained experts or
`consultants, including the names of the recipients and reviewers of any electronic
`or paper copies and the locations where the copies are stored. Additionally, all
`electronic copies must be labeled “RESTRICTED CONFIDENTIAL SOURCE
`CODE”;
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`(n) At the completion of the receiving Party’s review, the producing Party will Bates
`number and provide any printed paper copies to the receiving Party within five (5)
`business days of the receiving Party’s request, unless otherwise agreed or the
`producing Party objects to the request;
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`(o)
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`Should such printouts or photocopies be transferred back to electronic media, such
`media shall be labeled “RESTRICTED CONFIDENTIAL SOURCE CODE” and
`shall continue to be treated as such;
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`(p)
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`If the receiving Party’s outside counsel, consultants, or experts obtain printouts or
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`photocopies of Source Code Material, the receiving Party shall ensure that such
`outside counsel, consultants, or experts keep the printouts or photocopies in a
`secured locked area in the offices of such outside counsel, consultants, or expert.
`The receiving Party may also temporarily keep the printouts or photocopies at: (i) the
`Court for any proceedings(s) relating to the Source Code Material, for the dates
`associated with the proceeding(s); (ii) the sites where any deposition(s) relating to
`the Source Code Material are taken, for the dates associated with the deposition(s);
`and (iii) any intermediate location reasonably necessary to transport the printouts or
`photocopies (e.g., a hotel prior to a Court proceeding or deposition);
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`(q) 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 or removable electronic
`media (e.g., a DVD, CD-ROM, or flash memory “stick”) via hand carry, Federal
`Express or other similarly reliable courier. Source Code Material may not be
`transported or transmitted electronically over a network of any kind, including a
`LAN, an intranet, or the Internet. Source Code Material may only be transported
`electronically as is reasonably necessary for filing any Source Code Material with
`the Court or serving such Source Code Material on another Party; and
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`(r) All paper copies shall be securely destroyed if they are no longer necessary in the
`Litigation. Copies of Source Code Printouts that are marked as deposition exhibits
`shall not be provided to the Court Reporter or attached to deposition transcripts;
`rather, the deposition record will identify the exhibit by its production numbers.
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`11.
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`Absent written consent from the designating Party, any outside counsel representing a
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`Party and any person associated with a Party and permitted to receive the other Party’s
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`Protected Material that is designated RESTRICTED–ATTORNEYS’ EYES ONLY and/or
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`RESTRICTED CONFIDENTIAL SOURCE CODE (collectively “HIGHLY SENSITIVE
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`MATERIAL”), who obtains, receives, has access to, or otherwise learns, in whole or in
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`part, the other Party’s HIGHLY SENSITIVE MATERIAL under this Order shall not
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`prepare, prosecute, supervise, or assist in the preparation or prosecution of any patent
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`application pertaining to the field of the invention of the patents-in-suit on behalf of the
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`receiving Party or its acquirer, successor, predecessor, or other affiliate during the pendency
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`of this Action and for one year after its conclusion, including any appeals. Nothing in this
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`Order shall prohibit the acquisition or patents or patent applications for any entity other
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`Case 2:22-cv-00263-JRG-RSP Document 37 Filed 12/19/22 Page 12 of 21 PageID #: 1043
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`than a party. The prohibitions in this Paragraph are not intended to and shall not preclude
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`counsel who obtains, receives, or otherwise learns of, in whole or in part, the other Party’s
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`HIGHLY SENSITIVE MATERIAL of a technical nature from participating directly or
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`indirectly6 in reexamination, inter partes review, interference proceedings, or covered
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`business method review proceedings, provided that any attorney who obtains, receives, or
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`otherwise learns, in whole or in part, the other Party’s HIGHLY SENSITIVE MATERIAL
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`of a technical nature produced by another Party may not, directly or indirectly, advise,
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`consult, or participate in the drafting of amended or substitute claims in the proceeding,
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`and will not use any of the producing Party’s Protected Material in the proceeding. To
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`ensure compliance with the purpose of this provision, each Party shall create an “Ethical
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`Wall” between those persons with access to HIGHLY SENSITIVE MATERIAL and any
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`individuals who, on behalf of the Party or its acquirer, successor, predecessor, or other
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`affiliate, prepare, prosecute, supervise, or assist in the preparation or prosecution of any
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`patent application pertaining to the field of invention of the patent-in-suit. The provision
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`shall not bar entire firms, rather only the individuals who actually receive and review a
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`Party’s HIGHLY SENSITIVE MATERIAL.
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`12.
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`Nothing in this Order shall require production of documents, information, or other material
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`that a Party contends is protected from disclosure by the attorney-client privilege, the work
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`product doctrine, or other privilege, doctrine, or immunity. If documents, information, or
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`6 “Indirectly” in this provision includes support staff and attorneys who are not counsel of record,
`but are supporting or working with the counsel of record in the relevant proceedings. For sake of
`clarity, all attorneys of any Party may participate, supervise, and assist in any and all IPR
`proceedings related to the patents-in-suit, even if they have received and/or reviewed the other
`HIGHLY SENSITIVE MATERIAL, provided