Case 5:19-cv-00036-RWS Document 112 Filed 10/28/19 Page 1 of 5 PageID #: 5062
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
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`MAXELL LTD.,
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`v.
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`APPLE INC,
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`Plaintiff,
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`Defendant.
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`CIVIL ACTION NO. 5:19-CV-00036-RWS
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`§
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`JOINT SUPPLEMENTAL PROTECTIVE ORDER
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`This Joint Supplemental Protective Order is in supplementation to the parties’
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`previous Agreed Protective Order. Docket No. 45. The Parties anticipate disclosure of
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`confidential information belonging to Intel Corporation (“Intel”), a non-party to the action,
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`and have agreed to these supplemental provisions. Accordingly, it is hereby ORDERED:
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`A.
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`Scope
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`1.
`This Supplemental Protective Order sets forth additional restrictions
`governing the disclosure of Protected Material that constitutes or includes confidential
`or proprietary information or trade secrets of Intel (“Intel Protected Material”).
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`2.
`Except as supplemented or amended herein, the provisions of the
`Protective Order will apply to Intel Protected Material. In the event of a conflict
`between the Protective Order and this Supplemental Protective Order, the terms of this
`Supplemental Protective Order will govern.
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`3.
`Except as expressly stated otherwise, all terms used in this Supplemental
`Protective Order have the same meaning as used in the Protective Order.
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`Case 5:19-cv-00036-RWS Document 112 Filed 10/28/19 Page 2 of 5 PageID #: 5063
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`B.
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`Designation of Intel Protected Material
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`4.
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`In supplementation to Paragraph 7 of the Protective Order:
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`(a) A producing Party must designate Intel Protected Material as
`“INTEL CONFIDENTIAL,” “INTEL CONFIDENTIAL - ATTORNEYS’ EYES
`ONLY,” or “INTEL CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY -
`SOURCE CODE.” The respective protections provided in the Protective Order for
`materials designated “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY,” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE”
`shall apply, as amended by this Supplemental Protective Order to Intel Protected
`Material.
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`(b) Any portion of a transcript relating to Intel Protected Material shall
`be deemed “INTEL CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY -
`SOURCE CODE.” If a Party desires to modify that classification, it must provide a
`copy of the relevant portion of the transcript to Intel. Paragraph 13 of the Protective
`Order will govern any such requests.
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`C.
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`Additional Restrictions Concerning the Handling of Intel Source
`Code
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`5. Where Intel is not the Producing Party, any request by a Receiving Party
`for printouts of Intel Source Code pursuant to Paragraph 11(c)(v) of the Protective
`Order, must be forwarded to Intel. On receipt of such request, Intel shall then have the
`rights of a “Producing Party” under that paragraph to object to the request.
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`6.
`The printed copy sets of Intel Source Code must be kept at all times in
`the offices of Outside Counsel of the Receiving Party. They are prohibited from being
`kept, stored, or reviewed at the offices of the Receiving Party’s outside consultants or
`experts. On request by a Receiving Party, Intel will work with the Receiving Party to
`identify one or more offices of Intel’s outside counsel that could host printed copy sets
`for review by the outside consultants or experts.
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`7.
`- OUTSIDE
`INTEL CONFIDENTIAL
`as
`Items designated
`ATTORNEYS’ EYES ONLY - SOURCE CODE may be transported only by hand by
`a person authorized to have access under Paragraph 10 of the Protective Order. If an
`authorized person is taking that material on a flight, it must be carried on the plane and
`may not be checked. Intel Source Code Material may not be shipped by courier, such as
`Federal Express.
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`D. Prosecution and Development Bars.
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`8. With regard to persons who receive items designated “INTEL
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`Case 5:19-cv-00036-RWS Document 112 Filed 10/28/19 Page 3 of 5 PageID #: 5064
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY” or “INTEL CONFIDENTIAL -
`ATTORNEYS’ EYES’ONLY SOURCE CODE,” the subject matter of the
`prosecution bar in Paragraph 6(b)(i) and (ii) of the Protective Order shall be
`“technology directed to 3G and 4G wireless modem protocol software and hardware
`for mobile handset.”
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`9. The final sentence of Paragraph 6(b) will not apply to items designated
`“INTEL CONFIDENTIAL
`- ATTORNEYS’ EYES ONLY” or “INTEL
`CONFIDENTIAL - ATTORNEYS’ EYES’ ONLY SOURCE CODE.” Instead, for
`persons who receive such items, the prosecution bar will apply to patents, patent
`applications, specifications, and claims that claim priority prior to one year after the
`earlier of (a) the final resolution of this action, including all appeals and (b) the date on
`which Intel receives written notice that the person is withdrawing from the Protective
`Order and the Supplemental Protective Order and will no longer have access to any
`material designated “INTEL CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
`“INTEL CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY SOURCE
`CODE,” as well as any materials that contain or disclose Intel Source Code Material.
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`10. Before receiving items “INTEL CONFIDENTIAL - ATTORNEYS’ EYES
`ONLY” or “INTEL CONFIDENTIAL - ATTORNEYS’ EYES’ ONLY SOURCE
`CODE,” an outside consultant or expert or Shadow Juror must execute and deliver to
`Intel the “Certification of Outside Consultant” attached as Exhibit A agreeing not to
`perform hardware, software or product development work for commercial purposes on
`3G and 4G wireless modem protocol software and hardware for mobile handset until
`one year after the earlier of (a) the final resolution of this action, including all appeals
`and (b) the date on which Intel receives written notice that the person is withdrawing
`from the Protective Order and the Supplemental Protective Order and will no longer
`have access to any material designated “INTEL CONFIDENTIAL - ATTORNEYS’
`EYES ONLY,” or “INTEL CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
`ONLY SOURCE CODE,” as well as any materials that contain or disclose Intel Source
`Code Material.
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`E.
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`Other Provisions
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`11. With regard to Intel Protected Material, the following terms shall include
`Intel even if Intel was not the party that produced that material:
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`a.
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`“Producing Party,” as used in Paragraph 6(b), 6(e)(iv), 7(d)(ii), 8(b)(ix),
`9(b)(ix), 10(b)(viii), 10(c)(viii), 12, 13(b), 15(a), 18(a), and 19(b) of the
`Protective Order.
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`b.
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`“the producing Party,” as used in Paragraph 6(c) of the Protective Order.
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`Case 5:19-cv-00036-RWS Document 112 Filed 10/28/19 Page 4 of 5 PageID #: 5065
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`c.
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`d.
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`e.
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`“the Party,” as used in Paragraph 8(b)(iii), 9(b)(i), 9(b)(ii), 9(b)(vii),
`10(b)(i), 10(b)(ii), 10(b)(vi), 12(a)(iii), 12(b)(v), and 12(f).
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`“the Parties,” as used in Paragraph 11(c)(v) and 12(e) of the Protective
`Order.
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`“every Party who has produced such Discovery Material,” as used in
`Paragraph 14(a) of the Protective Order.
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`12. To the extent that a Receiving Party is authorized under the Protective Order
`and this Supplemental Protective Order to transport or transmit electronic copies of
`Intel Designated Material, only the following methods may be used: (1) encrypted email
`using an encryption tool that has a passphrase of at least 20 characters in length and
`using at least 128-bit Advanced Encryption Standard (AES) cipher option; (ii) a secure
`FTP site that implements 256 bit AES encryption over SSL and utilizes access controls,
`and the files containing the information are encrypted using a key length of at least 20
`characters and 256 bit AES encryption and are removed from the Secure FTP site within
`3 days; and
`(iii) hand-delivery, where the data is stored on an encrypted hard-drive using at least
`AES 128-bit hardware encryption algorithm and a removable hardware key or an RFID
`secured card.
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`13. A Receiving Party that wants to file or otherwise submit Intel Designated
`Material must file the materials under seal and must immediately notify Intel.
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`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 28th day of October, 2019.
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`Case 5:19-cv-00036-RWS Document 112 Filed 10/28/19 Page 5 of 5 PageID #: 5066
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`Exhibit A
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`CERTIFICATION OF OUTSIDE CONSULTANT
`REGARDING PROTECTIVE ORDER
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`I,
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`1.
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`, state:
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`I have read the Supplemental Protective Order for Intel
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`Confidential Information and understand and will abide by its terms.
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`2.
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`I agree not to perform hardware, software or product development
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`work for commercial purposes on 3G and 4G wireless modem protocol software and
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`hardware for mobile handset until one year after the earlier of (a) the final resolution
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`of this action, including all appeals and (b) the date on which Intel receives written
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`notice that I am withdrawing from the Protective Order and the Supplemental
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`Protective Order and will no longer have access to any material designated “INTEL
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “INTEL CONFIDENTIAL -
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`OUTSIDE ATTORNEYS’ EYES ONLY SOURCE CODE,” as well as any materials
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`that contain or disclose Intel Source Code Material.
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`I state under penalty of perjury under the laws of the United States that the
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`foregoing is true and correct.
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`Executed on
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`, 20 . ________________________
` Signature
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