Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 1 of 10 PageID #: 12808
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Case No. 5:19-cv-0036-RWS
`
`
`
`
`
`Defendant.
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`COVID-19 ADDENDUM TO PROTECTIVE ORDER
`
`WHEREAS, Plaintiff Maxell, Ltd. and Defendant Apple Inc., hereafter referred to as “the
`
`Parties,” have worked together to reconcile the needs of this case with the exigencies of the
`
`ongoing public health emergency;
`
`WHEREAS, the Court entered an Agreed Protective Order on July 2, 2019 (Dkt. No. 45)
`
`(“the Protective Order”);
`
`WHEREAS, since the Parties entered into the Protective Order, the outbreak of the novel
`
`coronavirus (COVID-19) has been declared a global pandemic by the World Health
`
`Organization, and the Centers for Disease Control and Prevention has described the outbreak of
`
`COVID-19 in the United States as a “rapidly evolving situation” and has recommended social
`
`distancing to limit further community spread of COVID-19;
`
`WHEREAS, in response to the COVID-19 pandemic, virtually every state has issued a
`
`“shelter-in-place” or “stay-at-home” order to limit the spread of the disease, including those
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 2 of 10 PageID #: 12809
`
`currently in place in Texas and California, which vary in scope and duration but generally
`
`require businesses not considered “essential” to close their physical offices and continue their
`
`operations remotely;
`
`WHEREAS, in addition to these orders and advisories, numerous state and federal courts,
`
`including the U.S. District Court for the Eastern District of Texas, have issued Orders restricting
`
`or preventing public access to courthouses given the severity of risk to persons by the spread of
`
`COVID-19;
`
`WHEREAS, Apple’s normal and necessary security procedures, memorialized in the
`
`existing agreed-to Protective Order, for the treatment of computer source code used as part of
`
`litigation are not possible given the public health orders and advisories;
`
`WHEREAS, Chief District Judge Rodney Gilstrap issued a Standing Order Regarding
`
`Pretrial Procedures in Civil Cases Assigned to Chief District Judge Rodney Gilstrap During the
`
`Present Covid-19 Pandemic on April 20, 2020 that expressly recognizes that: “[t]rying to keep
`
`cases moving forward while prioritizing the health of individuals” may require “unconventional
`
`practices and accommodations that would not normally be accepted as appropriate,” such as “the
`
`production of computer source code that are not consistent with the producing party’s normal
`
`security protocols” (¶2); to encourage parties “to be willing to make special accommodations
`
`during the health emergency,” that “those special accommodations will not be used against them
`
`in the future” (¶ 3); and that with respect to source code production, the “the use of . . .
`
`temporary code-review procedures during the pandemic will not be citable as evidence of
`
`appropriate code-review procedures after the pandemic” and that “[a]fter the pandemic, parties
`
`producing source code can return to advocating all their normal security protocols” (¶20
`
`(emphasis in original));
`
`– 2 –
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 3 of 10 PageID #: 12810
`
`WHEREAS, solely in this period of national—and international—public health
`
`emergency, Apple has developed, as a special accommodation, a temporary alternative to the
`
`inspection protocols set forth in the Protective Order that uses dedicated, specially-configured
`
`source code discovery laptops (“Remote Review Laptop”) that can be shipped to reviewers who
`
`are sheltering in place and enable the recipient of each such Remote Review Laptop to review
`
`code in an environment designed to approximate the security precautions set forth in the
`
`Protective Order to allow discovery of source code in this action to continue while the public
`
`health restrictions are in place; and
`
`WHEREAS, Plaintiff acknowledges the exceptional exigencies presented by the
`
`international health emergency and will not later argue that Apple’s accommodations during this
`
`emergency constitute a proper approach in any other circumstances;
`
`NOW THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
`
`1.
`
`This COVID-19 Addendum to the Protective Order shall be effective immediately
`
`upon entry and shall continue in effect until September 1, 2020, unless extended by agreement of
`
`the Parties or further order of the Court. Except as modified herein, all other provisions of the
`
`Protective Order shall remain in full force and effect.
`
`2.
`
`Defined terms in this Addendum have the meaning established in the Protective
`
`Order entered in this action (i.e., Dkt. No. 45). In addition, “Authorized Reviewer,” in the
`
`context of this Addendum, shall mean any person who (a) is authorized under the Protective
`
`Order (i.e., Dkt. No. 45) to access materials designated as “CONFIDENTIAL - OUTSIDE
`
`ATTORNEYS’ EYES ONLY - SOURCE CODE” and “INTEL CONFIDENTIAL - OUTSIDE
`
`ATTORNEYS’ EYES ONLY - SOURCE CODE” and (b) has agreed to be bound by the
`
`provisions of this Addendum by signing a copy of Exhibit B.
`
`– 3 –
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 4 of 10 PageID #: 12811
`
`3.
`
`Notwithstanding anything to the contrary in the Protective Order:
`
`(a)
`
`Any Remote Review Laptop made available by Defendant may be used as
`
`follows:
`
`The Remote Review Laptop must be kept, at all times when not in
`(i)
`use in accordance herewith, within a locked safe or a locked room (including a
`secure closet or cabinet) within the office or home of the Authorized Reviewers
`when not in use;
`
`Any Authorized Reviewer who is to receive a Remote Review
`(ii)
`Laptop shall, prior to receipt thereof, and upon Defendant’s request, provide
`Defendants with details regarding the location at which such computer will be
`used for reviewing (“Source Code Review Room”) and the location at which such
`computer will be stored when not being used for reviewing, for the sole purposes
`of ensuring compliance with the requirements of this Addendum regarding the
`location in which such computer is to be stored;
`
`(iii) No recordable media or recordable devices, including without
`limitation sound recorders, computers, cell phones, smart watches, peripheral
`equipment, cameras, devices containing unobstructed cameras (e.g., webcams,
`unless entirely shielded with an opaque material), CDs, DVDs, or drives of any
`kind, may be in the Source Code Review Room when the Remote Review Laptop
`is powered on; however, to the extent such devices are unable to be removed
`without substantial burden (e.g. desktop computer) such devices shall be powered
`off and remain off during the review of the source code;
`
`(iv) Upon the completion of each review session, Authorized Reviewer
`shall provide, at Defendant’s request, a declaration confirming under penalty of
`perjury that no unauthorized electronic records of the Source Code were created
`or transmitted in any way;
`
`(v) While any Remote Review Laptop is in use, its screen shall be
`positioned in such a way that it is not visible from any external window of the
`room in which it is stored, or such window shall be covered with blinds, shades,
`or a similar covering;
`
`(vi) Before the Remote Review Laptop is turned on, the Authorized
`Reviewer who intends to review the Source Code shall provide a least one hour’s
`notice to Defendant via email at vzhou@omm.com, dsilverman@omm.com, and
`kgodfrey@omm.com that they are beginning a review session;
`
`(vii) Upon receiving such notification, Defendant’s counsel shall
`provide the Authorized Reviewer with a single-use password to access the
`Remote Review Laptop;
`
`– 4 –
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 5 of 10 PageID #: 12812
`
`(viii) During the review session and at all other times, the Authorized
`Reviewers shall not copy, remove, or otherwise transfer any Source Code from
`the Remote Review Laptop including, without limitation, copying, removing, or
`transferring the Source Code onto any recordable media or recordable device;
`
`(ix)
`
`The Remote Review Laptop must be turned off when not in active
`
`use;
`
`Immediately after the Remote Review Laptop is turned off, the
`(x)
`Plaintiff’s Authorized Reviewers shall notify Defendant via email at
`vzhou@omm.com, dsilverman@omm.com, and kgodfrey@omm.com that they
`are ending a review session;
`
`(xi) At all times, all network and USB ports and wireless transmitters
`of each Remote Review Laptop shall be and remain disabled, and the Remote
`Review Laptop shall not be connected to a printer in any way;
`
`(xii) Authorized Reviewers shall maintain a log of the time that they
`spend reviewing materials on the Remote Review Laptop during each review
`session in the form attached as Exhibit A, which shall be made available to
`Defendant upon request.
`
`(b)
`
`Any Remote Review Laptop made available by Defendant may be
`
`transported as follows:
`
`Via hand carry, Federal Express, or other similarly reliable courier
`(i)
`by Defendant to a location mutually agreed upon by the Parties; and
`
`Each Remote Review Laptop may not be removed from said
`(ii)
`location, except to be returned to the location requested by the Defendant via hand
`carry, Federal Express, or other similarly reliable courier, after providing notice to
`Defendant of the intended shipment and receiving confirmation from Defendant
`that such shipment can be securely received.
`
`(c)
`
`Defendant will endeavor to accommodate reasonable print requests from
`
`Plaintiff according to the following procedures:
`
`After completion of a review session (i.e., not during a review
`(i)
`session), Plaintiff’s Authorized Reviewer may inform Plaintiff’s outside counsel
`of record via phone call of the precise file path, file name, and line number range
`to print;
`
`Then, Plaintiff’s outside counsel of record may provide the precise
`(ii)
`file path, file name, and line number range to print to Defendant’s outside counsel
`of record by sending that information in formal letter correspondence, encrypted,
`
`– 5 –
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 6 of 10 PageID #: 12813
`
`and designated as “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY
`- SOURCE CODE”;
`
`(iii) Upon receipt of such correspondence described in ¶ 3(c)(ii) above,
`Defendant’s counsel may have two (2) business days to print the source code lines
`identified by Plaintiff’s outside counsel of record. Then, Defendant will follow
`the normal procedures regarding providing printed source code pages set forth in
`the Protective Order at Dkt. No. 45, ¶ 11(c)(v);
`
`Such printed source code pages described in ¶ 3(c)(iii) above apply
`(iv)
`to Plaintiff’s total printing page limit that the Parties have otherwise agreed to.
`See Dkt. 45, ¶ 11(c)(v).
`
`(d)
`
`The Authorized Reviewers may keep paper Source Code printouts in a
`
`secured locked area in their offices or homes. At all times when not being actively
`
`reviewed, all Source Code printouts must be stored within a safe or locked drawer or file
`
`cabinet in a dedicated room within the office or home of the Authorized Reviewers that is
`
`locked when not in use;
`
`(e)
`
`Paper Source Code printouts may only be transported or transmitted by at
`
`the direction of a person authorized to receive the printouts to another person authorized
`
`to receive the printouts on paper via hand carry, Federal Express or other similarly
`
`reliable courier;
`
`(f)
`
`Any Authorized Reviewer in possession of a Remote Review Laptop
`
`under the terms of this Addendum shall return such computer to Defendant following the
`
`procedure described in Paragraph 3(b)(ii) above (i) on September 1, 2020, unless
`
`extended by the Court, or (ii) upon Defendant’s request after the occurrence of any one of
`
`the following: (1) the entry of an order dismissing or entering final judgment in this
`
`matter; (2) the entry of an order staying or administratively closing the case; (3) the
`
`conclusion of the Authorized Reviewer’s engagement with any party to this matter or
`
`involvement in this matter; (4) review via the method contemplated by the Protective
`
`– 6 –
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 7 of 10 PageID #: 12814
`
`Orders is again feasible consistent with court, federal, state, and local guidance or orders
`
`relevant to the parties’ ability to conduct in-person review of source code; or (5) the entry
`
`of a subsequent protective order that contemplates the return of Source Code Computers;
`
`(g)
`
`Each Authorized Reviewer shall sign a copy of this Addendum
`
`acknowledging agreement to be bound to the conditions hereof.
`
`
`
`
`
`SO ORDERED
`
`
`
`– 7 –
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 8 of 10 PageID #: 12815
`
`EXHIBIT A
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Case No. 5:19-cv-0036-RWS
`
`
`
`
`
`Defendant.
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`AUTHORIZED REVIEWER LOG FOR _________________________
`
`I, _________________, certify under the pains and penalties of perjury that, on the dates and
`
`times listed below, I reviewed the Source Code Computer provided to me by Apple pursuant to
`
`the Covid-19 Addendum to Protective Order. I have listed below the start time and end time for
`
`each review session.
`
`DATE OF REVIEW
`SESSION
`
`START TIME
`
`END TIME
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`– 8 –
`
`
`
`
`
`
`
`
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 9 of 10 PageID #: 12816
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`__________________________________
`
`[SIGNATURE]
`
`
`
`– 9 –
`
`

`

`Case 5:19-cv-00036-RWS Document 351-1 Filed 06/24/20 Page 10 of 10 PageID #: 12817
`
`EXHIBIT B
`
`
`
`I,
`
`
`
`
`
`
`
`
`
`, acknowledge and declare that I have received a
`
`copy of the Covid-19 Addendum to Protective Order (“Order”) in Maxell, Ltd. v. Apple Inc.,
`
`United States District Court, Eastern District of Texas, Texarkana Division, Civil Action No.
`
`5:19-cv-00036-RWS. Having read and understood the terms of the Order, I agree to be bound
`
`by the terms of the Order and consent to the jurisdiction of said Court for the purpose of any
`
`proceeding to enforce the terms of the Order.
`
`Name of individual:
`
`Present occupation/job description:
`
`
`
`
`
`Name of Company or Firm:
`
`Address:
`
`
`
`Dated:
`
`
`
`
`
`
`
`
`
`[Signature]
`
`– 10 –
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`