Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 1 of 27 PageID #: 16891
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`Exhibit 33
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 2 of 27 PageID #: 16892
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 1 of 26 PageID #: 386
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`HITACHI MAXELL, LTD.,
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`Case No. 5:16-cv-00179-RWS
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`Plaintiff,
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`JURY TRIAL DEMANDED
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`v.
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`ZTE CORP. and ZTE USA INC.,
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`Defendants.
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`PATENT PROTECTIVE ORDER
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`WHEREAS, Plaintiff Hitachi Maxell, Ltd. and Defendant ZTE (USA) Inc. (collectively,
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`“the Parties” and, individually, “Party”) believe that certain information that is or will be
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`encompassed by discovery demands by the Parties involves the production or disclosure of trade
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`secrets, confidential business information, or other proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance
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`with Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`Each Party may designate as confidential for protection under this Order, in whole or in
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`part, any document, information or material that constitutes or includes, in whole or in
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`part, confidential or proprietary information or trade secrets of the Party or a Third Party
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`to whom the Party reasonably believes it owes an obligation of confidentiality with
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`respect to such document, information or material (“Protected Material”). Protected
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`Material shall be designated by the Party producing it by affixing a legend or stamp on
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`such document, information or material as follows: “CONFIDENTIAL.” The word
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`SMRH:480984177.1
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`-1-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 3 of 27 PageID #: 16893
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 2 of 26 PageID #: 387
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`“CONFIDENTIAL” shall be placed clearly on each page of the Protected Material
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`(except deposition and hearing transcripts) for which such protection is sought. For
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`deposition and hearing transcripts, the word “CONFIDENTIAL” shall be placed on the
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`cover page of the transcript (if not already present on the cover page of the transcript
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`when received from the court reporter) by each attorney receiving a copy of the transcript
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`after that attorney receives notice of the designation of some or all of that transcript as
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`“CONFIDENTIAL.”
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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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`Order with the designation “Confidential” or “Confidential - Outside Attorneys’ Eyes
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`Only” shall receive the same treatment as if designated “RESTRICTED - ATTORNEYS’
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`EYES ONLY” under this Order, unless and until such document is redesignated to have a
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`different 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
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`exhibits or for identification in depositions and hearings; (c) pretrial pleadings, exhibits to
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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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`SMRH:480984177.1
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`-2-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 4 of 27 PageID #: 16894
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 3 of 26 PageID #: 388
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`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
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`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
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`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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`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.
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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. outside counsel of record in this Action for the Parties;
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`b. employees of such counsel assigned to and reasonably necessary to assist such
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`counsel in the litigation of this Action;
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`SMRH:480984177.1
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`-3-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 5 of 27 PageID #: 16895
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 4 of 26 PageID #: 389
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`c. up to and including two (2) in-house counsel for the Parties who either have
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`responsibility for making decisions dealing directly with the litigation of this
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`Action, or who are assisting outside counsel in the litigation of this Action
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`provided that each such in-house counsel has agreed to be bound by the
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`provisions of the Protective Order by signing a copy of Appendix A;
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`d. up to and including three (3) designated employee representatives, including
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`officers and directors, of each of the Parties to the extent reasonably necessary for
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`the litigation of this Action provided that each such employee representative has
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`agreed to be bound by the provisions of the Protective Order by signing a copy of
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`Appendix A, provided further, that either party may in good faith request the
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`other party’s
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`consent
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`to designate one or more
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`additional
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`employee
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`representatives and the other party shall not unreasonably withhold such consent;
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`the requesting party may seek leave of Court
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`to designate such additional
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`employee representative(s) if the requesting party believes the other party has
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`unreasonably withheld such consent;
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`e. outside consultants or experts (i.e., not existing employees or affiliates of a Party
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`or an affiliate of a Party) retained for the purpose of this litigation, provided that:
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`(1) such consultants or experts are not presently employed by the Parties hereto
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`for purposes other than this Action; (2) before access is given, the consultant or
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`expert has completed the Undertaking attached as Exhibit A hereto and the same
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`is served upon the producing Party with a current curriculum vitae of the
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`consultant or expert at least seven (7) days before access to the Protected Material
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`is to be given to that consultant in order to allow the producing Party to object to
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`SMRH:480984177.1
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`-4-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 6 of 27 PageID #: 16896
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 5 of 26 PageID #: 390
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`and notify the receiving Party in writing that it objects to disclosure of Protected
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`Material to the consultant or expert. The Parties agree to promptly confer and use
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`good faith to resolve any such objection. If the Parties are unable to resolve any
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`objection, the objecting Party may file a motion with the Court within fifteen (15)
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`days of the notice, or within such other time as the Parties may agree, seeking a
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`protective order with respect to the proposed disclosure. The objecting Party shall
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`have the burden of proving the need for a protective order. No disclosure shall
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`occur until all such objections are resolved by agreement or Court order;
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`f.
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`independent litigation support services, including persons working for or as court
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`reporters, translators, graphics or design services, jury or trial consulting services,
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`and photocopy, document imaging, and database services retained by counsel and
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`reasonably necessary to assist counsel with the litigation of this Action;
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`g. mock jurors who have signed an agreement agreeing not to publicly disclose
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`DESIGNATED MATERIAL and to keep any information concerning
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`DESIGNATED MATERIAL confidential;
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`h. any mediator who is assigned to hear this matter, and his or her staff, subject o
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`their agreement to maintain confidentiality to the same degree as required by this
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`Order; and
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`i.
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`the Court, jury, and the Court’s personnel.
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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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`SMRH:480984177.1
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`-5-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 7 of 27 PageID #: 16897
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 6 of 26 PageID #: 391
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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 pursuant to any discovery request in this
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`Action, including but not limited to Protected Material designated as DESIGNATED
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`MATERIAL, shall be used by the Parties only in the litigation of this Action and shall
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`not be used for any other purpose. Any person or entity who obtains access to
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`DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not
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`make any copies, duplicates, extracts, summaries or descriptions of such DESIGNATED
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`MATERIAL or any portion thereof except as may be reasonably necessary in the
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`litigation of this Action. Any such copies, duplicates, extracts, summaries or descriptions
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`shall be classified DESIGNATED MATERIALS and subject to all of the terms and
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`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
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`computer source code and/or live data (that is, data as it exists residing in a database or
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`databases) (“Source Code Material”), the producing Party may designate such Protected
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`Material as “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-c) and (e-g); provided, however, that access by in-house counsel pursuant
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`SMRH:480984177.1
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`-6-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 8 of 27 PageID #: 16898
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 7 of 26 PageID #: 392
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`to paragraph 5(c) be limited to in-house counsel who exercise no competitive decision-
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`making authority on behalf of the client.
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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. Access to a Party’s Source Code Material shall be provided to the receiving
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`Party’s outside counsel and/or experts in a secure room (“Source Code Review
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`Room”) and only on “stand-alone” computer(s) (that is, the computer on which all
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`access ports have been disabled (except for the printer port) that may not be
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`linked to any network, including a local area network (“LAN”), an intranet or the
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`Internet (“Source Code Computer”). The Source Code Computer may only be
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`connected to (i) a printer, or (ii) a device capable of temporarily storing electronic
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`copies solely for the limited purposes permitted pursuant to paragraphs 10 (h and
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`k) below. Further, the Source Code Computer shall be equipped with a
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`reasonably current version of the Microsoft Windows operating system or, if the
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`code was developed in a Linux environment, then a reasonably current version of
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`Ubuntu. The receiving Party may use appropriate tool software for the type of
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`Source Code on the Source Code Computer, which shall be installed by producing
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`Party. The provided Source Code Computer shall be reasonably powerful, such
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`that it operates the tool software in a reasonable amount of time, e.g., conduct a
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`grep search of the provided code in a reasonable amount of time. The Source
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`Code Computer shall be located in a reasonably comfortable office environment
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`and be equipped with a 19” (diagonal measurement) or larger monitor running at
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`its native resolution, as well as a keyboard and mouse. Additionally, except as
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`SMRH:480984177.1
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`-7-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 9 of 27 PageID #: 16899
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 8 of 26 PageID #: 393
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`provided in paragraph 10(k) below, the stand-alone computer(s) may only be
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`located at the U.S. offices of the producing Party’s outside counsel. No
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`recordable media or recordable devices, including without limitation sound
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`recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
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`DVDs, or drives of any kind, shall be permitted into the Source Code Review
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`Room;
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`b. The receiving Party shall make reasonable efforts to restrict its requests for such
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`access to the stand-along computer(s) to normal business hours, which for
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`purposes of this paragraph shall be 8:00 a.m. through 6:00 p.m. However, upon
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`reasonable notice from the receiving party, the producing Party shall make
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`reasonable efforts to accommodate the receiving Party’s request for access to the
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`stand-alone computer(s) outside of normal business hours. The Parties agree to
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`cooperate in good faith such that maintaining the producing Party’s Source Code
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`Material at the offices of its outside counsel shall not unreasonably hinder the
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`receiving Party’s ability to efficiently and effectively conduct the prosecution or
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`defense of this Action;
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`c. The producing Party shall provide the receiving Party with information explaining
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`how to start, log on to, and operate the stand-alone computer(s) in order to access
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`the produced Source Code Material on the stand-alone computer(s);
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`d. The producing Party will produce Source Code Material in computer searchable
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`format on the stand-alone computer(s) as described above;
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`e. Access to Protected Material designated RESTRICTED CONFIDENTIAL -
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`SOURCE CODE shall be limited to outside counsel, persons reasonably
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`SMRH:480984177.1
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`-8-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 10 of 27 PageID #: 16900
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 9 of 26 PageID #: 394
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`necessary under 5(f), and up to four (4) outside consultants or experts2 (i.e., not
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`existing employees or affiliates of a Party or an affiliate of a Party) retained for
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`the purpose of this litigation and approved to access such Protected Materials
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`pursuant to paragraph 5(e) above. All persons who will review a producing
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`Party’s Source Code Material on behalf of a receiving Party, including members
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`of a receiving Party’s outside law firm, shall be identified in writing to the
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`producing Party at least two (2) days in advance of the first time that such person
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`reviews such Source Code. Such identification shall be in addition to any other
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`disclosure required under this Order. All persons viewing Source Code shall sign
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`on each day they view Source Code a log that will include the names of persons
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`who enter the locked room to view the Source Code and when they enter and
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`depart. Proper identification of all authorized persons shall be provided prior to
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`any access to the Source Code Review Room or the Source Code Computer.
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`Proper identification requires showing, at a minimum, a passport or photo
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`identification card sanctioned by the government of any State of the United States
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`or by the government of the United States. The producing Party shall be entitled
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`to a copy of the log upon one (1) day’s advance notice to the receiving Party. A
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`receiving Party may include excerpts of Source Code Material in a pleading,
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`exhibit, expert report, discovery document, deposition transcript, other Court
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`document, provided that the Source Code Documents are appropriately marked
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`under this Order, restricted to those who are entitled to have access to them as
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`2 2 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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`SMRH:480984177.1
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`-9-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 11 of 27 PageID #: 16901
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 10 of 26 PageID #: 395
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`specified herein, and, if filed with the Court, filed under seal in accordance with
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`the Court’s rules, procedures and orders;
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`f. To the extent portions of Source Code Material are quoted in a Source Code
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`Document, either (1) the entire Source Code Document will be stamped and
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`treated as RESTRICTED CONFIDENTIAL SOURCE CODE or (2) those pages
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`containing quoted Source Code Material will be separately stamped and treated as
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`RESTRICTED CONFIDENTIAL SOURCE CODE;
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`g. Except as set forth in paragraph 10(k) below, no electronic copies of Source Code
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`Material shall be made without prior written consent of the producing Party,
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`except as necessary to create documents which, pursuant to the Court’s rules,
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`procedures and order, must be filed or served electronically;
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`h. The receiving Party’s outside counsel and/or experts shall be entitled to take notes
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`in the Source Code Review Room but may not copy the Source Code verbatim
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`into such notes and may not take such notes electronically on the Source Code
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`Computer itself or any other computer.
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`i. The receiving Party shall be permitted to make a reasonable number of printouts
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`and photocopies of Source Code Material on a provided laser printer with
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`commercially reasonable printing speeds for on-site printing during inspection of
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`the Source Code Material. The receiving Party may print limited portions of the
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`Source Code only when necessary to prepare court filings or pleadings or other
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`papers (including a testifying expert’s expert report and claim charts supporting
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`infringement contentions). Printed portions of a continuous block of Source Code
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`for the accused product shall not exceed ten (10) pages unless otherwise agreed
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`SMRH:480984177.1
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`-10-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 12 of 27 PageID #: 16902
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 11 of 26 PageID #: 396
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`by the parties, whose reasonable request for agreement shall not be denied. The
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`receiving Party may print no more than 50 pages for each accused product, unless
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`otherwise agreed by the Parties, whose reasonable request for agreement shall not
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`be withheld. The receiving Party shall not print Source Code in order to review
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`blocks of Source Code elsewhere in the first instance, i.e., as an alternative to
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`reviewing that Source Code electronically on the Source Code Computer, as the
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`Parties acknowledge and agree that the purpose of the protections herein would be
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`frustrated by printing portions of code for review and analysis elsewhere, and that
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`printing is permitted, only when necessary to prepare court filings or pleadings or
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`other papers (including a testifying expert’s expert report and claim charts
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`supporting infringement contentions). Upon printing any such portions of Source
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`Code, the printed pages shall be collected by the producing Party. The producing
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`Party shall Bates and line number, copy, and clearly label as “RESTRICTED
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`CONFIDENTIAL SOURCE CODE” any pages printed by the receiving Party.
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`The receiving Party shall maintain a log of all such files that are printed or
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`photocopied. Within three (3) business days, the producing Party shall either (i)
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`provide one copy set of such unobjected pages to the receiving Party or (ii) inform
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`the requesting Party of its objection, if any, that the printed portions withheld are
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`excessive and/or not done for a permitted purpose. If, after meeting and
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`conferring, the producing Party and the receiving Party cannot resolve the
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`objection, the producing Party shall be entitled to file a Motion for Further
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`Protection with the Court within five (5) days of the objection to resolve whether
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`the printed Source Code in question is narrowly tailored and was printed for a
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`SMRH:480984177.1
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`-11-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 13 of 27 PageID #: 16903
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 12 of 26 PageID #: 397
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`permitted purpose. Failure to file within this period requires immediate
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`production of the disputed material. The burden shall be on the producing Party
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`to demonstrate that such printed portions are more than is reasonably necessary
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`for a permitted purpose and printed primarily for the purposes of review and
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`analysis elsewhere in the first instance, i.e., as an alternative to reviewing that
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`Source Code electronically on the Source Code Computer. The printed pages
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`shall constitute part of the Source Code produced by the producing Party in each
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`action, all of which shall be designated and clearly labeled “RESTRICTED
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`CONFIDENTIAL SOURCE CODE,” and the receiving Party shall maintain a log
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`of all such files that are printed or photocopied;
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`j. The receiving Party’s outside counsel of record may make no more than five (5)
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`additional paper copies of any portions of the Source Code received from a
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`producing Party pursuant to Paragraph 10(i) not including copies attached to court
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`filings or used at depositions;
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`k.
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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
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`outside counsel, consultants, or experts keep the printouts or photocopies in a
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`secured locked area in the offices of such outside counsel, consultants, or expert.
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`At least forty-eight (48) hours before the date of deposition, the receiving Party
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`shall notify the producing Party about the specific portions of Source Code it
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`wishes to use at the deposition, and the producing Party shall bring printed copies
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`of those portions to the deposition for use by the receiving Party, with the
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`understanding that for deposition outside of the United States the Parties will
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`SMRH:480984177.1
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`-12-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 14 of 27 PageID #: 16904
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 13 of 26 PageID #: 398
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`work in good faith to provide sufficient notice such that the Source Code Material
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`can transported or made available at the location of the deposition. Copies of
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`Source Code that are marked as deposition exhibits shall not be provided to the
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`Court Reporter or attached to deposition transcripts; rather, the deposition record
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`will identify the exhibit by its production numbers. All papers copies of Source
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`Code brought to the deposition shall remain with the producing Party’s outside
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`counsel for secure destruction in a timely manner following the deposition or
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`proceeding. The receiving Party may also temporarily keep the printouts or
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`photocopies at the Court for any proceedings(s) relating to the Source Code
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`Material, for the dates associated with the proceeding(s); and (ii) one attorney
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`working copy at the sites where any deposition(s) relating to the Source Code
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`Material are taken, for the dates associated with the deposition(s) and any
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`intermediate location reasonably necessary to transport the working copy (e.g., a
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`hotel prior to a Court proceeding or deposition); and,
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`l. A producing Party’s Source Code Material may only be transported by the
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`receiving Party at the direction of a person authorized under paragraph 10(e)
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`above to another person authorized under paragraph 10(e) above, on paper via
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`hand carry, Federal Express or other similarly reliable courier. Source Code
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`Material may not be transported or transmitted electronically over a network of
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`any kind, including a LAN, an intranet, or the Internet. Except as provided in this
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`sub-paragraph, absent express written permission from the producing Party, the
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`receiving Party may not create electronic images, or any other images, or make
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`electronic copies, of the Source Code from any paper copy of Source Code for use
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`SMRH:480984177.1
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`-13-
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`Case 5:16-cv-00179-RWS Document 287-36 Filed 08/07/18 Page 15 of 27 PageID #: 16905
`Case 5:16-cv-00179-RWS Document 34 Filed 03/06/17 Page 14 of 26 PageID #: 399
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`in any manner (including by way of example only, the receiving Party may not
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`scan the Source Code to a PDF or photograph the code). Images or copies of
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`Source Code shall not be included in correspondence between the Parties
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`(references to production numbers shall be used instead), and shall be omitted
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`from pleadings and other papers whenever possible. If a Party reasonably
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`believes that it needs to submit a portion of Source Code as part of a filing with
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`the Court, the Party shall make such a filing while protecting the confidentiality of
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`the Source Code. If such filing requires a certificate of conference pursuant to
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`Local Rule 7(i), the filing Party shall disclose to the producing Party during the
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`conference the amount of the Source Code to be included with the filing.
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`Following any filing, the filing Party shall disclose to the producing Party the
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`entirety of any Source Code that was imaged within two days subsequent to the
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`filing. If a producing Party agrees to produce an electronic copy of all or any
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`portion of its Source Code, access to the receiving Party’s submission,
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`communication, and/or disclosure of electronic files or other materials containing
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`any portion of Source Code (paper or electronic) shall at all times be limited
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`solely to individuals who are expressly authorized to view Source Code under the
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`provisions of this Order. Additionally, any such electronic copies must be labeled
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`“RESTRICTED CONFIDENTIAL SOURCE CODE” as provided for in this
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`Order.
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`11.
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`Absent the written consent of the producing Party, any attorney representing a Party,
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`whether in-house or outside counsel, and any person associated with a Party and
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`permitted to receive the other Party’s Protected Material that is designated
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`SMRH:480984177.1
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`RESTRICTED – ATTORNEYS’ EYES ONLY and/or RESTRICTED CONFIDENTIAL
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`SOURCE CODE (collectively “HIGHLY SENSITIVE MATERIAL”), who obtains,
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`receives, has access to, or otherwise learns, in whole or in part, the other Party’s
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`HIGHLY SENSITIVE MATERIAL under this Order shall not prepare, prosecute,
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`supervise, or assist in the preparation or prosecution of any patent application pertaining
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`to the field of the invention of the patents-in-suit on behalf of the receiving Party or its
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`acquirer, successor, predecessor, or other affiliate during the pendency of this Action and
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`for one year after its conclusion, including any appeals. To ensure compliance with the
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`purpose of this provision, each Party shall create an “Ethical Wall” between those
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`persons with access to HIGHLY SENSITIVE MATERIAL and any individuals who, on
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`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 invention of the patents-in-suit. For sake of clarity, any attorney
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`representing a Party, whether in-house or outside counsel, and any person associated with
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`a Party and permitted to receive another Party’s HIGHLY SENSITIVE MATERIAL,
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`may participate, supervise and assist in any and all proceedings before the U.S. Patent
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`and Trademark Office related to the Party’s patents-in-suit, including without limitation
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`Inter Partes Review (IPR) proceedings, even if they have received the other Party’s
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`HIGHLY SENSITIVE MATERIAL, provided that they do not participate or assist in any
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`claim drafting or amendment of claims in such proceedings.
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`12.
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`Nothing in this Order shall require production of documents, information or other
`
`material that a Party contends is protected from disclosure by the attorney-client
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`privilege, the work product doctrine, or other privilege, doctrine, or immunity. If
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`SMRH:480984177.1
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`documents, information or other material subject to a claim of attorney-client privilege,
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`work product doctrine, or other privilege, doctrine, or immunity is inadvertently or
`
`unintentionally produced, such production shall in no way prejudice or otherwise
`
`constitute a waiver of, or estoppel as to, any such privilege, doctrine, or immunity. Any
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`Party that inadvertently or unintentionally produces documents, information or other
`
`material it reasonably believes are protected under the attorney-client privilege, work
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`product doctrine, or other privilege, doctrine, or immunity may obtain the return of such
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`documents, information or other material by promptly notifying the recipient(s) and
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`providing a privilege log for the inadvertently or unintentionally produced documents,
`
`information or other material. The recipient(s) shall gather and return all copies of such
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`documents, information or other material to the producing Party, except for any pages
`
`containing privileged or otherwise protected markings by the recipient(s), which pages
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`shall instead be destroyed and certified as such to the producing Party.
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`13.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person
`
`authorized to have access thereto to any person who is not authorized for such access
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`under this Order. The Parties are hereby ORDERED to safeguard all such documents,
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`information and material to protect against disclosure to any unauthorized persons or
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`entities.
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`14.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use any
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`DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided
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`that the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (a) eligible
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`to have access to the DESIGNATED MATERIAL by virtue of his or her employment
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`with the designating party, (b) identified in the DESIGNATED MATERIAL as an author,
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`SMRH:480984177.1
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`addressee, or copy recipient of such information, (c) although not identified as an author,
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`addressee, or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary
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`course of business, seen such DESIGNATED MATERIAL, (d) a current or former
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`officer, director or employee of the producing Party or a current or former officer,
`
`director or employee of a company affiliated with the producing Party; (e) counsel for a
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`Party, including outside counsel and in-house counsel (subject to paragraph 9 of this
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`Order); (f) an independent contractor, consultant, and/or expert retained for the purpose
`
`of this litigation; (g) court reporters and videographers; (h) the Court; or (i) other persons
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`entitled hereunder to access to DESIGNATED MATERIAL. DESIGNATED
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`MATERIAL shall not be disclosed to any other persons unless prior authorization is
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`obtained from counsel represen