Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 1 of 21 PageID #: 328
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`HMD GLOBAL, et al.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`ASUSTEK COMPUTER INC., et al.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`PANASONIC CORPORATION, et al.
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`v.
`
`SONY CORPORATION, et al.
`
`
`
`
`
`Case No. 2:22-cv-00443-JRG
`(Lead Case)
`
`
`
`
`Case No. 2:22-cv-00440-JRG
`(Member Case)
`
`
`
`
`Case No. 2:22-cv-00447-JRG
`(Member Case)
`
`
`
`
`Case No. 2:22-cv-00448-JRG
`(Member Case)
`
`
`PROTECTIVE ORDER
`WHEREAS, Plaintiff AGIS Software Development LLC (“AGIS”), Defendants HMD
`
`Global OY and HMD America, Inc. (collectively “HMD”), Defendants ASUSTek Computer Inc.
`
`and ASUS Computer International (“ASUS”), Defendants Panasonic Holdings Corporation and
`
`Panasonic Corporation of North America (“Panasonic”), and Defendant Sony Corporation
`
`(“Sony”), 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
`
`1
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 2 of 21 PageID #: 329
`
`with Federal Rule of Civil Procedure 26(c):
`
`
`
`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
`
`1.
`
`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, information or material as follows:
`
`“CONFIDENTIAL" or “RESTRICTED - ATTORNEYS’ EYES ONLY” or “RESTRICTED
`
`CONFIDENTIAL SOURCE CODE.” The designation shall be placed clearly on each page of the
`
`Protected Material (except deposition and hearing transcripts and natively produced documents)
`
`for which such protection is sought. For deposition and hearing transcripts, the designation 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 including
`
`Protected Material. For natively produced Protected Material, the designation shall be placed in
`
`the filename of each such natively produced document.
`
`2.
`
`Any document produced under Patent Rules 2-2, 3-2, and/or 3-4 before issuance of
`
`this 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
`
`2
`
`

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`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 3 of 21 PageID #: 330
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`“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 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.
`
`
`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
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 4 of 21 PageID #: 331
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`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)
`
`outside counsel of record in these Consolidated Actions2 for the Parties;
`
`employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action;
`
`up to one in-house counsel for the Parties who is a member in good standing of at
`least one state bar and has responsibility for making decisions dealing directly with
`the litigation of this Action;
`
`(d)
`
`[intentionally left blank];
`
`
`
`
`
`
`
`(e)
`
`outside consultants or experts3 (i.e., not existing employees or affiliates of a Party
`or an affiliate of a Party) 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 Action4; (2) before access is given, the consultant or expert
`has completed the Undertaking attached as Exhibit A hereto and the same is served
`upon the producing Party with a current 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 or Undertaking to object to and notify the receiving Party in writing that
`it objects to disclosure of Protected Material to the consultant or expert. The Parties
`
`2 The Consolidated Actions means each of the following four civil actions: AGIS Software
`Development LLC v. HMD Global et al., Case No. 2:22-cv-00443-JRG; AGIS Software
`Development LLC v. AUSTEK Computer Inc. et al., Case No.2:22-cv-00440-JRG; AGIS Software
`Development LLC v. Panasonic Corporation, Case No.2:22-cv-00447-JRG; and AGIS Software
`Development LLC v. Sony Corporation, Case No.2:22-cv-00448-JRG.
`3 For any such person, the curriculum vitae shall identify his/her (i) current employer(s), (ii) each
`person or entity from whom s/he has received compensation or funding for work in his or her areas
`of expertise or to whom the s/he has provided professional services, including in connection with
`a litigation, at any time during the preceding five years; (iii) (by name and number of the case,
`filing date, and location of court) any litigation in connection with which the s/he has offered
`expert testimony, including through a declaration, report, or testimony at a deposition or trial,
`during the preceding five years. If such consultant or expert believes any of this information is
`subject to a confidentiality obligation to a third-party, then the s/he should provide whatever
`information can be disclosed without violating any confidentiality agreements, and the Party
`seeking to disclose Protected Material to the consultant or expert shall be available to meet and
`confer with the designating Party regarding any such engagement.
`4 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
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 5 of 21 PageID #: 332
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`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;
`
`independent litigation support services, including persons working for or as court
`reporters, graphics or design services, jury or trial consulting services, and
`photocopy, document imaging, and database services retained by counsel and
`reasonably necessary to assist counsel with the litigation of this Action; and
`
`the Court and its personnel.
`
`A Party shall designate documents, information, or material as “CONFIDENTIAL”
`
`
`
`
`
`
`
`(f)
`
`(g)
`
`6.
`
`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 to Protected Material designated as DESIGNATED MATERIAL, shall be used by the
`
`Parties only in the litigation of this Action and shall not be used for any other purpose. All produced
`
`Protected Material shall be carefully maintained so as to preclude access by persons who are not
`
`entitled to receive such Protected Material, and any person or entity who obtains access to
`
`DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not make any
`
`copies, duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or
`
`any portion thereof except as may be reasonably necessary in the litigation of this Action. Any
`
`such copies, duplicates, extracts, summaries or descriptions shall be classified DESIGNATED
`
`MATERIALS and subject to all of the terms and conditions of this Order.
`
`8.
`
`To the extent a producing Party believes that certain Protected Material qualifying
`
`5
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 6 of 21 PageID #: 333
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`to be designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
`
`limitation, the producing Party may designate such Protected Material “RESTRICTED --
`
`ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer source
`
`code and/or live data (that is, data as it exists residing in a database or databases) , the producing
`
`Party may designate such Protected Material as “RESTRICTED CONFIDENTIAL SOURCE
`
`CODE” (“Source Code Material”).
`
`9.
`
`For Protected Material designated “RESTRICTED -- ATTORNEYS’ EYES
`
`ONLY,” access to, and disclosure of, such Protected Material shall be limited to individuals listed
`
`in paragraphs 5(a-b) and (e-g).
`
`10.
`
`For Protected Material designated “RESTRICTED CONFIDENTIAL SOURCE
`
`CODE,” the following additional restrictions apply:
`
`(a)
`
`(b)
`
`Access to a Party’s Source Code Material shall be provided only on “stand-alone”
`computer(s) (that is, the computer may not be linked to any network, including a
`local area network (“LAN”), an intranet or the Internet) in a secured locked room.
`The stand-alone computer(s) may be connected to a printer. The stand-alone
`computer(s) may only be located within the continental United States at the offices
`of the producing Party’s outside counsel. The stand-alone computer(s) shall have
`disk encryption and be password protected. Use or possession of any input/output
`device (e.g., USB memory stick, mobile phone or tablet, camera or any camera-
`enabled device, CD, floppy disk, portable hard drive, laptop, or any device that can
`access the Internet or any other network or external system, etc.) is prohibited while
`accessing the computer containing the source code. All persons entering the locked
`room containing the stand-alone computer(s) must agree to submit to reasonable
`security measures to ensure they are not carrying any prohibited items before they
`will be given access to the stand-alone computer(s). The producing Party may
`periodically “check in” on the activities of the receiving Party’s representatives
`during any stand-alone computer review and may visually monitor the activities of
`the receiving Party’s representatives from outside the room in which the stand-
`alone computer(s) is located, but only to ensure that no unauthorized electronic
`records of the Source Code Material and no information concerning the Source
`Code Material are being created or transmitted in any way. The producing Party
`may not record (visually, audibly or by other means) the activities of the receiving
`Party’s representatives;
`
`The receiving Party shall make reasonable efforts to restrict its requests for such
`
`6
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 7 of 21 PageID #: 334
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`access to the stand-alone computer(s) to normal business hours, which for purposes
`of this paragraph shall be 8:00 a.m. through 6:00 p.m. However, upon reasonable
`notice from the receiving party, the producing Party shall make reasonable efforts
`to accommodate the receiving Party’s request for access to the stand-alone
`computer(s) outside of normal business hours. The Parties agree to cooperate in
`good faith such that maintaining the producing Party’s Source Code Material at the
`offices of its outside counsel shall not unreasonably hinder the receiving Party’s
`ability to efficiently and effectively conduct the prosecution or defense of this
`Action;
`
`The producing Party shall provide the receiving Party with information explaining
`how to start, log on to, and operate the stand-alone computer(s) in order to access
`the produced Source Code Material on the stand-alone computer(s);
`
`The producing Party will produce Source Code Material in computer searchable
`format on the stand-alone computer(s) as described above;
`
`Access to Source Code Material shall be limited to outside counsel and up to three
`(3) outside 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(e) above. A
`receiving Party may include excerpts of Source Code Material in a pleading,
`exhibit, expert report, discovery document, deposition transcript, other Court
`document, provided that the Source Code Material is 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;
`
`To the extent portions of Source Code Material are quoted in an electronic copy or
`image of a document which, pursuant to the Court’s rules, procedures, or order,
`must be filed or served electronically (“Source Code Document”), either (1) the
`entire Source Code Document will be stamped and treated as RESTRICTED
`CONFIDENTIAL SOURCE CODE or (2) those pages containing quoted Source
`Code Material will be separately stamped and treated as RESTRICTED
`CONFIDENTIAL SOURCE CODE;
`
`Except as set forth in this paragraph, no electronic copies or images of Source Code
`Material shall be made without prior written consent of the producing Party. The
`receiving Party may create an electronic copy or image of limited excerpts of
`Source Code Material only to the extent necessary to create Source Code
`
`
`(c)
`
`
`(d)
`
`
`(e)
`
`(f)
`
`(g)
`
`
`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 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 single consultant or expert.
`
`7
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 8 of 21 PageID #: 335
`
`
`(h)
`
`Documents or any drafts of these documents.6 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. The receiving Party may create an
`electronic image of a selected portion of the Source Code Material only when the
`electronic file containing such image has been encrypted using commercially
`reasonable encryption
`software
`including password protection.
` The
`communication and/or disclosure of electronic files containing any portion of
`Source Code Material shall at all times be limited to individuals who are authorized
`to see Source Code Material under the provisions of this Protective Order.
`Additionally, all electronic copies must be
`labeled
`"RESTRICTED
`CONFIDENTIAL SOURCE CODE." If Source Code Documents are filed with
`the Court, they must be filed under seal in accordance with the Court’s rules,
`procedures and orders.
`
`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. In no event may the Receiving Party print 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. 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, 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 three additional sets
`(or subsets) of printed source code may be requested and provided by the producing
`Party in a timely fashion;
`
`
`
`(i)
`
`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 or
`photocopies are kept in a secure manner that ensures access is limited to the
`
`6 Drafts shall only include those excerpts the Receiving Party reasonably believes will be included
`in the final version.
`
`8
`
`

`

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`persons authorized under this Order;
`
`A producing Party’s Source Code Material may only be transported by the
`receiving Party at the direction of a person authorized under paragraph 10(e) above
`to another person authorized under paragraph 10(e) above on paper via hand carry,
`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;
`
`The receiving Party’s outside counsel and/or expert shall be entitled to take notes
`relating to the source code but may not copy any portion of the source code into
`the notes. No copies of all or any portion of the source code may leave the room
`in which the source code is inspected except as otherwise provided herein. Further,
`no other written or electronic record of the source code is permitted except as
`otherwise provided herein. No notes shall be made or stored on the inspection
`computer or left behind at the site where the inspection computer is made available;
`however, if any such notes are made they shall be deleted or destroyed by the
`producing Party, without reviewing the substance of the notes, upon discovery.
`Notwithstanding the foregoing, any such notes shall be stamped and treated as
`“RESTRICTED CONFIDENTIAL SOURCE CODE.” The log of such notes need
`not be produced to any other party absent Court Order (e.g. potentially in
`connection with a Protective Order violation motion).
`
`A list of names of persons who will review Source Code Material on the stand-
`alone computer(s) will be provided to the producing Party in conjunction with any
`written (including email) notice requesting inspection. Prior to the first inspection
`of any Source Code Material on the stand-alone computer(s), the receiving Party
`shall provide five (5) business days’ notice to schedule the initial inspection with
`the producing Party. The receiving Party shall provide three (3) business days’
`notice in advance of scheduling any additional inspections. Such notice shall
`include the names and titles for every individual from the receiving Party who will
`attend the inspection. The producing Party may maintain a daily log of the names
`of persons who enter the locked room to view the source code and when they enter
`and depart;
`
`The receiving Party’s outside counsel shall maintain a log of all copies of the
`Source Code Printouts (received from a producing Party) that are delivered by the
`receiving Party to any person and a log of any electronic images of Source Code
`Material. The log shall include the names of the recipients and reviewers of copies
`and locations where the copies are stored. Upon request by the producing Party,
`the receiving Party shall provide reasonable assurances and/or descriptions of the
`security measures employed by the receiving Party and/or person that receives a
`copy of any portion of the source code; and
`
`
`(j)
`
`
`(k)
`
`
`(l)
`
`
`(m)
`
`
`
`9
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 10 of 21 PageID #: 337
`
`(n)
`
`(o)
`
`All copies of any portion of the Source Code Printouts in whatever form shall be
`securely destroyed if they are no longer in use. 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.
`
`If a Receiving Party or person authorized to access Protected Material
`(“Authorized Recipient”) discovers any loss of Protected Material or a breach of
`security, including any actual or suspected unauthorized access, relating to another
`party’s Protected Material, the Receiving Party or Authorized Recipient shall: (1)
`promptly stop the unauthorized breach; (2) promptly (within 72 hours) provide
`written notice to Designating Party of such breach, including information
`regarding the size and scope of the breach; and (3) investigate and make reasonable
`efforts to remediate the effects of the breach. In any event, the Receiving Party or
`Authorized Recipient shall promptly take all necessary and appropriate corrective
`action to terminate any unauthorized access.
`
`11.
`
`Absent written consent from the designating Party, any person identified in
`
`
`
`paragraphs 5(a), 5(b), 5(c), 5(e), or 5(f) permitted to receive the designating Party’s Protected
`
`Material that is designated “RESTRICTED -- ATTORNEYS’ EYES ONLY” and/or
`
`“RESTRICTED CONFIDENTIAL SOURCE CODE” (collectively “HIGHLY SENSITIVE
`
`MATERIAL”), who obtains, receives, has access to, or otherwise learns, in whole or in part, said
`
`Party’s HIGHLY SENSITIVE MATERIAL under this Order shall not prepare, prosecute,
`
`supervise, or assist in the preparation or prosecution of any patent application pertaining to the
`
`field of the invention of the patents-in-suit on behalf of the receiving Party or its acquirer,
`
`successor, predecessor, or other affiliate during the pendency of this Action and for one year after
`
`its conclusion, including any appeals. The prohibitions in this Paragraph are not intended to and
`
`shall not preclude counsel who obtains, receives, or otherwise learns of, in whole or in any part,
`
`the other Party’s HIGHLY SENSITIVE MATERIAL of a technical nature from participating
`
`directly or indirectly7 in reexamination, inter partes review, post grant review, covered business
`
`
`7 “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
`
`10
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 11 of 21 PageID #: 338
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`method review, or interference or derivation proceedings, provided that any attorney who obtains,
`
`receives, or otherwise learns, in whole or in part, the other Party’s HIGHLY SENSITIVE
`
`MATERIAL of a technical nature produced by another Party may not, directly or indirectly,
`
`advise, consult, or participate in the drafting of amended or substitute claims in the proceeding,
`
`and will not use any of the producing Party’s Protected Material in the proceeding. To ensure
`
`compliance with the purpose of this provision, each Party shall create an “Ethical Wall” between
`
`those persons with access to HIGHLY SENSITIVE MATERIAL and any individuals who, on
`
`behalf of the Party or its acquirer, successor, predecessor, or other affiliate, prepare, prosecute,
`
`supervise or assist in the preparation or prosecution of any patent application pertaining to the field
`
`of the invention.
`
`12.
`
`Disclosure of HIGHLY SENSITIVE MATERIAL shall be subject to all applicable
`
`laws and regulations relating to the export of technical data contained in such Protected Material,
`
`including the release of such technical data to foreign persons or nationals in the United States or
`
`elsewhere. Each party receiving HIGHLY SENSITIVE MATERIAL shall comply with all
`
`applicable export control statutes and regulations. See, e.g., 15 CFR 734.2(b). No HIGHLY
`
`SENSITIVE MATERIAL may leave the territorial boundaries of the United States of America or
`
`be made available to any foreign national who is not (i) lawfully admitted for permanent residence
`
`in the United States or (ii) identified as a protected individual under the Immigration and
`
`Naturalization Act (8 U.S.C. 1324b(a)(3)). Without limitation, this prohibition extends to
`
`HIGHLY SENSITIVE MATERIAL (including copies) in physical and electronic form. The
`
`
`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 that they do not participate in or assist or provide
`guidance on any claim drafting or amendment of claims in such IPR proceedings.
`
`11
`
`

`

`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 12 of 21 PageID #: 339
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`viewing of HIGHLY SENSITIVE MATERIAL through electronic means outside the territorial
`
`limits of the United States of America is similarly prohibited. Notwithstanding this prohibition,
`
`HIGHLY SENSITIVE MATERIAL, exclusive of material designated RESTRICTED
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`CONFIDENTIAL ‑ SOURCE CODE, and to the extent otherwise permitted by law, may be taken
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`outside the territorial limits of the United States if it is reasonably necessary for a deposition taken
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`in a foreign country. The restrictions contained within this paragraph may be amended through
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`the consent of the producing Party to the extent that such agreed to procedures conform with
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`applicable export control laws and regulations.
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`13.
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`Nothing in this Order shall require production of documents, information or other
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`material that a Party contends is protected from disclosure by the attorney-client privilege, the
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`work product doctrine, or other privilege, doctrine, or immunity. Pursuant to Federal Rule of
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`Evidence 502(d) and (e), if documents, information or other material subject to a claim of attorney-
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`client privilege, work product doctrine, or other privilege, doctrine, or immunity is produced, such
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`production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to, any
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`such privilege, doctrine, or immunity. Any disclosure of communications, information, or
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`documents covered by the attorney-client privilege or work product protection is not a waiver of
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`the privilege or protection from discovery in this case or in any other federal or state proceeding.
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`This Order shall be interpreted to provide the maximum protection allowed by Federal Rule of
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`Evidence 502(d). Accordingly, the provisions of Federal Rule of Evidence 502(b) do not apply,
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`and the disclosing party is not required to satisfy the elements of Rule 502(b) to properly assert
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`the attorney-client privilege or work product protection over disclosed communications,
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`information, and documents. Nothing contained herein is intended to or shall serve to limit a
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`party’s right to conduct a review of communications, information, or documents for relevance,
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`12
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`

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`Case 2:22-cv-00443-JRG Document 41 Filed 01/16/24 Page 13 of 21 PageID #: 340
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`responsiveness and/or segregation of privileged and/or protected information before production.
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`Any Party that produces documents, information or other material it reasonably believes are
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`protected under the attorney-client privilege, work product doctrine, or other privilege, doctrine,
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`or immunity may obtain the return of such documents, information or other material by notifying
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`the recipient(s) and providing a privilege log for the produced documents, information or other
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`material. The recipient(s) shall gather and return all copies of such documents, information or
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`other material to the producing Party, except for any pages containing privileged or otherwise
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`protected markings by the recipient(s), which pages shall instead be destroyed and certified as such
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`to the producing Party.
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`14.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person
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`authorized to have access thereto to any person who is not authorized for such access under this
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`Order. The Parties are hereby ORDERED to safeguard all such documents, information and
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`material to protect against disclosure to any unauthorized persons or entities.
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`15.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use
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`any DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
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`the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have access
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`to the DESIGNATED MATERIAL by virtue of his or her employment with the designating party,
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`(ii) identified in the DESIGNATE