Case 2:22-cv-00443-JRG Document 42-9 Filed 01/16/24 Page 1 of 35 PageID #: 861
`Case 2:22-cv-00443-JRG Document 42-9 Filed 01/16/24 Page 1 of 35 PagelD #: 861
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`EXHIBIT I
`EXHIBIT I
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`

`

`
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`AGIS SOFTWARE DEVELOPMENT LLC,
`
`
`Plaintiff,
`
`
`
`v.
`
`
`GOOGLE LLC,
`
`WAZE MOBILE LIMITED,
`
`SAMSUNG ELECTRONICS CO., LTD. and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`
`Defendants.
`
`
`Case No. 2:19-cv-00361-JRG
`(LEAD CASE)
`
`JURY TRIAL DEMANDED
`
`
`Case No. 2:19-cv-00359-JRG
`(CONSOLIDATED CASE)
`
`Case No. 2:19-cv-00362-JRG
`(CONSOLIDATED CASE)
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`JOINT MOTION FOR ENTRY OF DISPUTED PROTECTIVE ORDER
`
`
`
`Pursuant to the Docket Control Order (Dkt. 68), dated April 8, 2020, and the Court’s
`
`Order granting the parties’ Joint Motion for Extension of Time to File Proposed Protective Order
`
`(Dkt. 69), Plaintiff AGIS Software Development LLC and Defendants Google LLC, Waze
`
`Mobile Limited, Samsung Electronics Co., Ltd. and Samsung Electronics America, Inc.,
`
`(collectively, the “Parties), hereby submit the Proposed Disputed Protective Order attached as
`
`Exhibit A. The Parties have indicated their competing proposals using, highlighting, square
`
`brackets and denoted by “Plaintiff’s Proposal:” and “Defendants’ Proposal:” as indicated in
`
`Exhibit A. The Parties were able to reach agreement on almost all provisions of the Protective
`
`Order, but two provisions in paragraphs 8 and 11 remain in dispute: (i) the definition of “Source
`
`Code” in paragraph 8, footnote 6; and (ii) certain provisions of the proposed bar on prosecution,
`
`acquisition, and licensing of patents in paragraph 11.
`
`

`

`
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`
`
`Parties’ competing proposals and arguments in favor of their proposals are presented
`
`below:
`
`Plaintiff’s Position
`
`
`
`The parties have three disputes: (1) whether “Source Code” should include the names of
`
`files or directories in which such files are stored, (2) whether the bar on prosecution, licensing,
`
`and acquisition of patents should be expanded to include “the accused products, services, or
`
`features of Defendants in above-captioned cases,” and (3) whether the limitations on prosecution
`
`of patent applications should exclude “acquisition, licensing, or any other transaction involving
`
`the patents-in-suit and/or all patents and patent applications related thereto.”
`
`
`
`First, regarding the definition of Source Code,1 AGIS seeks the clarification that “Source
`
`Code does not include the names of Source Code files or the names of directories in which such
`
`files are stored.” File names and directories are not source code and are not so sensitive that they
`
`merit the same protections as source code. See e.g. Packet Intelligence LLC v. Netscout Sys. Inc.
`
`et al., 2:16-CV-00230-JRG, Dkt. 343 at 12-13 (E.D. Tex., May 31, 2019) (discussing source
`
`code file names in an unsealed order); see also Fujinomaki v. Google, Inc. et al., 3-16-cv-03137,
`
`Dkt. No. 230 (N.D. Cal., Dec. 19, 2016) (“[handwritten notes] are permitted for the names of
`
`files, folders, directories, subroutines, and variables, so long as they do not include actual source
`
`code”). File names and directories cannot be appropriately designated “Source Code Material”
`
`under provisions of the protective order to which Defendants have agreed, as they are not
`
`“copies, reproductions, extracts, digests and complete or partial summaries” of source code. See
`
`Exhibit A at Section 3. In any case, the rationale that a party may suffer economically if its
`
`                                                            
`1 In this Court’s sample Protective Order, “Source Code Material” is simply defined as “computer source
`
`code and/or live data (that is, data as it exists residing in a database or databases.).”
`
`2
`
`

`

`
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`source code were copied or leaked, which ordinarily justifies the exceptional restrictions
`
`imposed by the model protective order, does not apply to file names and directories.
`
`
`
`On the other hand, it is important that AGIS be allowed to refer to files by name and
`
`location in seeking discovery and in its papers filed for consideration of this Court. Under
`
`Defendants’ proposal, references to source code file names or directories in written discovery
`
`requests would be a violation of the protective order unless such documents themselves are
`
`treated as “RESTRICTED CONFIDENTIAL SOURCE CODE.” This would impede AGIS’s
`
`ability to litigate this case. Moreover, Defendants have not explained why a designation of
`
`“RESTRICTED-ATTORNEY’S EYES ONLY” would be insufficient. Rather, Defendant’s
`
`position appears to be an attempt to gain a tactical advantage by impeding AGIS’s ability to refer
`
`to or request access to specific files.
`
`
`
`Regarding the limitations on patent prosecution, given that Plaintiff is agreeing to a two-
`
`year prosecution bar, Plaintiff believes it is appropriate to specifically carve out activities related
`
`to the “acquisition, licensing, or any other transaction involving the patents-in-suit and/or all
`
`patents and patent applications related thereto.” Defendants should not be permitted to further
`
`restrict Plaintiff’s ability to engage in transactions related to the patents within its portfolio with
`
`the inclusion of the following language: “Nothing in this Order shall prohibit the acquisition or
`
`patents or patent applications for assertion or licensing with respect to the products, services, or
`
`features of any entity other than a party.” Defendants’ proposal adds ambiguity and seeks to
`
`expand the restrictions to “products, services, or features” rather than limiting them to the field
`
`of invention of the patents-in-suit. As discussed below in relation to the acquisition bar, this
`
`departure from the model order greatly expands the scope of these limitations and would have
`
`serious and wide-ranging consequences.
`
`3
`
`

`

`
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`
`
`Defendants also seek to include “the accused products, services, or features of
`
`Defendants in the above-captioned cases” in the disputed provisions that impose restrictions on
`
`prosecution, licensing, and acquisition of patents. Specifically, Defendants seek the addition of a
`
`non-standard acquisition bar that would prevent outside counsel in this case from any
`
`involvement in the acquisition of patents not only in the pertinent field of technology. The
`
`additional requirements that Defendants seek to impose have the potential to serve as a
`
`disqualification of outside counsel, are not in the model protective order for good reasons, and
`
`should be rejected on several grounds.
`
`
`
`First, it is Defendants’ burden to show that such a bar is warranted, and Defendants
`
`cannot do so. A party seeking a bar must show (1) that the risk of inadvertent disclosure exists;
`
`and (2) that the balance of interests suggests a bar is appropriate.2 In re Deutsche Bank Trust Co.
`
`Americas, 605 F.3d 1373, 1378 (Fed. Cir. 2010). Defendants cannot show any risk of
`
`inadvertent disclosure, thus, their proposed heightened acquisition bar is not appropriate.
`
`In balancing the interests of both parties, courts have denied acquisition bars because they
`
`are burdensome to plaintiffs. Sol IP, LLC v. AT&T Mobility LLC, 2:18-cv-0526-RWS-RSP, Dkt.
`
`129 (E.D. Tex. May 29, 2019).3 Here, such a restriction would burden Plaintiff’s counsel as well
`
`because counsel would be unnecessarily bound by the Protective Order’s restrictions based on
`
`nothing but conjecture. Plaintiff’s counsel has already agreed to be bound by a two-year
`
`prosecution bar, longer than the typical one year. Yet, Defendants insist on further handicaps to
`
`Plaintiff’s counsel in the form of a burdensome and wide-ranging acquisition bar. For these
`
`                                                            
`2 In this District, prosecution bars and acquisition bars are both analyzed under the In re Deutsche Bank
`
`framework. See E-Contact Techs., LLC v. Apple, Inc., No. 1:11-CV-426-LEDKFG, 2012 WL 11924448, at *1 (E.D.
`Tex. June 19, 2012). 
`3 “[I]nlight of the broad scope of activities covered by the requested acquisition bar and its extended
`
`duration, the balance of interests supports that the proposed acquisition bar is not appropriate.” Id.
`
`4
`
`

`

`
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`reasons, Plaintiff respectfully requests that the Court adopt a narrow acquisition bar that applies
`
`only to patents in the field of invention of the patents-in-suit and is limited to the Parties.
`
`Defendants’ Position
`
`A.
`
`“Source Code” Should Include File Names And Directories For Source Code Files
`
`Defendants oppose Plaintiff AGIS’s proposal to exclude “the names of Source Code files
`
`or the names of directories in which such files are stored” from the definition of “Source Code”
`
`in Paragraph 8, Footnote 6. The file names and directory paths of Source Code files are no less
`
`sensitive than the content of the files themselves. Both reveal highly proprietary information
`
`about the designs, structures, and architectures of Defendants’ accused products. For this reason,
`
`courts have held that “anyone . . . accessing the source code computer, must treat the directories,
`
`subdirectories, and file paths of the source code as they would treat source code.” Finjan, Inc. v.
`
`ESET, LLC, No. 17-cv-183, slip op. at 2 (S.D. Cal. Jul. 30, 2018), ECF No. 306.
`
`Indeed, source Code file names and directories are created from, and reflect the contents
`
`of, source code that Defendants will be making available for inspection on standalone computers
`
`whose entire contents are designated “RESTRICTED CONFIDENTIAL SOURCE CODE.”
`
`Paragraph 10 provides that Source Code made available for inspection is subject to certain
`
`protections, such as a 500-page limit on printouts and limits on electronic duplication and
`
`transmission. Adopting AGIS’s proposal, however, would mean only some of the information
`
`on the standalone computer (i.e., content of source code files) would be protected under
`
`Paragraph 10, while other information (i.e., file names and directories) would not. As a result,
`
`under its proposal, AGIS could make unlimited printouts of directory and source code file
`
`listings and freely duplicate and transmit those printouts and related information, even though all
`
`that information would have been obtained from the standalone computers.
`
`5
`
`

`

`
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`During meet and confers, AGIS justified its exclusion of file names and directories on
`
`grounds that Defendants allowed AGIS to take notes regarding “directory paths, file paths,
`
`names and line numbers, as necessary to identify the requested portions for printing to the
`
`producing Party” in Paragraph 10(k). But Defendants’ accommodation for note-taking is not an
`
`admission that Source Code file names and directories are either not “Source Code” or less
`
`sensitive. Instead, as stated in Paragraph 10(k), Defendants’ accommodation was intended solely
`
`to permit AGIS to “identify . . . portions for printing.” And under Paragraph 10(k), “any such
`
`notes shall be deleted or destroyed by the producing Party.” Accordingly, AGIS’s proposed
`
`exclusion of file names and directories from the scope of “Source Code” should be rejected.
`
`B. Disputes Regarding The Prosecution And Acquisition Bars In Paragraph 11
`
`i. The Scope Of The Bars Should Encompass The Accused Products And Features
`
`“The purpose of the prosecution bar is to prevent outside counsel from using, even
`
`inadvertently, confidential information obtained in the lawsuit for purposes outside the lawsuit
`
`(e.g. drafting claims during patent prosecution).” Visto Corp. v. Seven Networks, Inc., No. 2:03–
`
`CV–333–TJW, 2006 WL 3741891, at *7 (E.D. Tex. Dec. 19, 2006). To this end, Defendants
`
`propose clarifying the subject matter scope of the prosecution and acquisition bars in Paragraph
`
`11 to preclude Plaintiff AGIS’s outside attorneys from prosecuting or acquiring patents that
`
`pertain to “the accused products, services, or features of Defendants in the above-captioned
`
`cases.” Defendants’ addition not only accurately describes the scope of the discovery that they
`
`will produce in this action ― it also addresses a concern that AGIS could exploit confidential
`
`information about the accused products to prosecute or acquire additional patents that it could
`
`assert against those same products in the future.
`
`Defendants’ concern is founded in AGIS’s history and actions. In 2017, AGIS filed
`
`actions in this Court asserting four of the six Patents-in-Suit in this case against four customers
`
`6
`
`

`

`
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`of Defendant Google: HTC, ZTE, Huawei, and LG.4 Before those cases ended in early 2019,
`
`AGIS had obtained confidential information regarding the same accused products and
`
`functionality at issue in this case: Google-supplied software applications Google Maps, Find My
`
`Device, and instant messaging applications running on smartphones and tablets. In this case,
`
`AGIS is asserting those same four patents, plus two related patents. And PTO records show that
`
`AGIS is currently prosecuting more continuations of the Patents-in-Suit. Thus, Defendants
`
`propose clarifying the scope of the prosecution and acquisition bars to preclude AGIS from
`
`misusing confidential information it learns from this litigation to obtain more patent claims that
`
`attempt to read on Defendants’ accused products and to support future litigation.
`
`ii. AGIS’s Exclusions Are Ambiguous, Find No Precedent, And Should Be Rejected
`
`AGIS proposes two exclusions to the prosecution and acquisition bars: (1) permitting
`
`“acquisition, licensing, or any other transaction involving the patents-in-suit and/or all patents
`
`and patent applications related thereto” and (2) permitting “the acquisition of patents or patent
`
`applications for assertion against or licensing to any entity other than a party.” In meet and
`
`confers, AGIS cited no precedent for these exclusions. Further, the first exclusion is ambiguous
`
`and circumvents the rest of the prosecution bar. It permits “any other transaction” ― which
`
`could encompass prosecution ― with respect to all “related” patents and patent applications.
`
`The first exclusion could thus allow AGIS to use Defendants’ confidential information to acquire
`
`or prosecute continuations of the Patents-in-Suit that read on the accused products in this case.
`
`But prosecution bars are intended to prevent exactly this type of exploitation of a producing
`
`party’s confidential information. Visto, 2006 WL 3741891, at *7. And given AGIS’s past
`
`accusations against the same Google products, Defendants have reason to believe that AGIS’s
`
`                                                            
`4 AGIS v. Huawei, No. 2:17-CV-0513-JRG; AGIS v. HTX, No. 2:17-CV-0514-JRG; AGIS v. LG, No. 2:17-
`CV-0515-JRG; and AGIS v. ZTE, No. 2:17-CV-0517-JRG.
`
`7
`
`

`

`
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`proposed exclusions are prone to misuse in the future. For these reasons, Defendants propose
`
`rejecting the first exclusion entirely, while revising the second exclusion to clarify that it is
`
`subject to the other limitations in the Protective Order and Paragraph 11.
`
`
`
`Dated: April 20, 2020
`
`
`
`
`
`
`
`BROWN RUDNICK LLP
`
`
`
` /s/ Alessandra Carcaterra Messing
`Alfred R. Fabricant
`NY Bar No. 2219392
`Email: afabricant@brownrudnick.com
`Peter Lambrianakos
`NY Bar No. 2894392
`Email: plambrianakos@brownrudnick.com
`Vincent J. Rubino, III
`NY Bar No. 4557435
`Email: vrubino@brownrudnick.com
`Alessandra Carcaterra Messing
`NY Bar No. 5040019
`Email: amessing@brownrudnick.com
`Enrique W. Iturralde
`NY Bar No. 5526280
`Email: eiturralde@brownrudnick.com
`BROWN RUDNICK LLP
`7 Times Square
`New York, New York 10036
`Telephone: (212) 209-4800
`Facsimile: (212) 209-4801
`
`Samuel F. Baxter
`Texas State Bar No. 01938000
`Email: sbaxter@mckoolsmith.com
`Jennifer L. Truelove
`Texas State Bar No. 24012906
`Email: jtruelove@mckoolsmith.com
`MCKOOL SMITH, P.C.
`104 E. Houston Street, Suite 300
`Marshall, Texas 75670
`Telephone: (903) 923-9000
`Facsimile: (903) 923-9099
`
`ATTORNEYS FOR PLAINTIFF AGIS
`SOFTWARE DEVELOPMENT LLC
`
`8
`
`

`

`
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`
`
`
`
`
`MANN TINDEL THOMPSON
`
`
` /s/ J. Mark Mann
`J. Mark Mann
`State Bar No. 12926150
`Email: Mark@themannfirm.com
`G. Blake Thompson
`State Bar No. 24042033
`Email: Blake@themannfirm.com
`MANN TINDEL THOMPSON
`300 West Main Street
`Henderson, Texas 75652
`Telephone: (903) 657-8540
`Facsimile: (903) 657-6003
`
`Darin W. Snyder (Pro Hac Vice)
`Email: dsnyder@omm.com
`Luann L. Simmons (Pro Hac Vice)
`Email: lsimmons@omm.com
`Davis S. Almeling (Pro Hac Vice)
`Email: dalmeling@omm.com
`Mark Liang (Pro Hac Vice)
`Email: mliang@omm.com
`Bill Trac (Pro Hac Vice)
`Email: btrac@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center, 28th Floor
`San Francisco, CA 94111
`Telephone: (415) 984-8700
`Facsimile: (415) 984-8701
`
`ATTORNEYS FOR DEFENDANTS
`GOOGLE LLC,
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA,
`INC., AND WAZE MOBILE LIMITED
`
`
`
`9
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`

`

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`
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`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that on April 20, 2020 all counsel of record who are
`
`deemed to have consented to electronic service are being served with a copy of this document via
`
`the Court’s CM/ECF system per Local Rule CV-5(a)(3).
`
`
`
` /s/ Alessandra Carcaterra Messing
` Alessandra Carcaterra Messing
`
`
`
`

`

`
`
`Case 2:19-cv-00361-JRG Document 87-1 Filed 04/20/20 Page 1 of 24 PageID #: 1738Case 2:22-cv-00443-JRG Document 42-9 Filed 01/16/24 Page 12 of 35 PageID #: 872
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` IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`MARSHALL DIVISION
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`CIVIL ACTION NO. 2:19-cv-00361-JRG
`
`Plaintiff,
`
`v.
`
`GOOGLE LLC,
`
`Defendant.
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`Plaintiff,
`
`v.
`
`WAZE MOBILE LIMITED,
`
`Defendant.
`
`
`
`AGIS SOFTWARE DEVELOPMENT LLC
`
`Plaintiff,
`
`v.
`
`Lead Case
`
`
`
`CIVIL ACTION NO. 2:19-cv-00359-JRG
`
`
`
`CIVIL ACTION NO. 2:19-cv-00362-JRG
`
`SAMSUNG ELECTRONICS CO., LTD., and
`SAMSUNG ELECTRONICS AMERICA,
`INC.,
`
`
`
`Defendants.
`
`PROTECTIVE ORDER
`
`
`
`1
`
`
`

`

`
`
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`WHEREAS, Plaintiff AGIS Software Development LLC (“AGIS”), Defendant Wave
`
`Mobile Limited (“Waze”), Defendant Google LLC (“Google”), and Defendants Samsung
`
`Electronics Co., Ltd., and Samsung Electronics (collectively, “Samsung”),1 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):
`
`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,” “RESTRICTED
`
`– ATTORNEYS’ EYES ONLY,” or “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 and
`
`natively produced documents) for which such protection is sought. For deposition and
`
`hearing transcripts, the word “CONFIDENTIAL” or other applicable designation shall be
`
`
`1 Waze, Google, and Samsung will hereafter collectively be referred to as “Defendants” and each
`may also be referred to separately as “Defendant.”
`2
`
`
`

`

`
`
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`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
`
`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
`
`3
`
`
`

`

`
`
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`SOURCE CODE” (“DESIGNATED MATERIAL”),2 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,
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`reproductions, extracts, digests and complete or partial summaries prepared from any
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`DESIGNATED MATERIALS shall also be considered DESIGNATED MATERIAL and
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`treated as such 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
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`CODE”) may be made at any time. Inadvertent or unintentional production of
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`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
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`treatment. Any party that inadvertently or unintentionally produces Protected Material
`
`without designating it as DESIGNATED MATERIAL may request destruction of that
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`Protected Material by notifying the recipient(s), as soon as reasonably possible after the
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`producing Party becomes aware of the inadvertent or unintentional disclosure, and
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`providing replacement Protected Material that is properly designated. The recipient(s)
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`
`2 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.
`
`4
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`
`

`

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`shall then destroy all copies of the inadvertently or unintentionally produced Protected
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`Materials and any documents, information or material derived from or based thereon.3
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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
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`party, 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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`outside counsel of record in this Action4 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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`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)
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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 of a competitor of a Party5; (2) before
`access is given, the consultant or expert has completed the Undertaking attached
`as Appendix A hereto and the same is served upon the producing Party at least
`ten (10) calendar days before access to the DESIGNATED MATERIAL is to be
`given to that consultant, technical advisor or expert, along with (i) the name,
`address, current curriculum vitae, 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
`
`3The 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.
`
` 4
`
` This “Action” means Case Nos. 2:19-cv-00359-JRG, 2:19-cv-00361-JRG, or 2:19-cv-00362-
`JRG.
`
` 5
`
` 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.
`
`
`5
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`
`

`

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`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 (iii) 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 DESIGNATED MATERIAL to the consultant, technical advisor, or
`expert. The Parties agree to promptly meet and confer and use good faith to
`resolve any such objection within five (5) days following the objection. If the
`Parties are unable to resolve any objection, the objecting Party may file a motion
`with the Court within fifteen (15) days of the notice, or within such other time as
`the Parties may agree, seeking a protective order with respect to the proposed
`disclosure. The objecting Party shall have the burden of proving the need for a
`protective order. 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 DESIGNATED MATERIAL to a consultant, technical advisor or
`expert with respect 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)
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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
`
`(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
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`documents, information or material.
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`7.
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`Documents, information or material produced in this Action, including but not limited to
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`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.
`
`6
`
`
`

`

`
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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 mak