Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 1 of 10 PageID #: 12820
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`v.
`
`APPLE INC.,
`
`Plaintiff,
`
`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
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`Parties,” have worked together to reconcile the needs of this case with the exigencies of the
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`ongoing public health emergency;
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`WHEREAS, the Court entered an Agreed Protective Order on July 2, 2019 (Dkt. No. 45)
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`(“the Protective Order”);
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`WHEREAS, since the Parties entered into the Protective Order, the outbreak of the novel
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`coronavirus (COVID-19) has been declared a global pandemic by the World Health
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`Organization, and the Centers for Disease Control and Prevention has described the outbreak of
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`COVID-19 in the United States as a “rapidly evolving situation” and has recommended social
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`distancing to limit further community spread of COVID-19;
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`WHEREAS, in response to the COVID-19 pandemic, virtually every state has issued a
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`“shelter-in-place” or “stay-at-home” order to limit the spread of the disease, including those
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 2 of 10 PageID #: 12821
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`currently in place in Texas and California, which vary in scope and duration but generally
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`require businesses not considered “essential” to close their physical offices and continue their
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`operations remotely;
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`WHEREAS, in addition to these orders and advisories, numerous state and federal courts,
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`including the U.S. District Court for the Eastern District of Texas, have issued Orders restricting
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`or preventing public access to courthouses given the severity of risk to persons by the spread of
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`COVID-19;
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`WHEREAS, Apple’s normal and necessary security procedures, memorialized in the
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`existing agreed-to Protective Order, for the treatment of computer source code used as part of
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`litigation are not possible given the public health orders and advisories;
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`WHEREAS, Chief District Judge Rodney Gilstrap issued a Standing Order Regarding
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`Pretrial Procedures in Civil Cases Assigned to Chief District Judge Rodney Gilstrap During the
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`Present Covid-19 Pandemic on April 20, 2020 that expressly recognizes that: “[t]rying to keep
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`cases moving forward while prioritizing the health of individuals” may require “unconventional
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`practices and accommodations that would not normally be accepted as appropriate,” such as “the
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`production of computer source code that are not consistent with the producing party’s normal
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`security protocols” (¶2); to encourage parties “to be willing to make special accommodations
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`during the health emergency,” that “those special accommodations will not be used against them
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`in the future” (¶ 3); and that with respect to source code production, the “the use of . . .
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`temporary code-review procedures during the pandemic will not be citable as evidence of
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`appropriate code-review procedures after the pandemic” and that “[a]fter the pandemic, parties
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`producing source code can return to advocating all their normal security protocols” (¶20
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`(emphasis in original));
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 3 of 10 PageID #: 12822
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`WHEREAS, solely in this period of national—and international—public health
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`emergency, Apple has developed, as a special accommodation, a temporary alternative to the
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`inspection protocols set forth in the Protective Order that uses dedicated, specially-configured
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`source code discovery laptops (“Remote Review Laptop”) that can be shipped to reviewers who
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`are sheltering in place and enable the recipient of each such Remote Review Laptop to review
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`code in an environment designed to approximate the security precautions set forth in the
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`Protective Order to allow discovery of source code in this action to continue while the public
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`health restrictions are in place; and
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`WHEREAS, Plaintiff acknowledges the exceptional exigencies presented by the
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`international health emergency and will not later argue that Apple’s accommodations during this
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`emergency constitute a proper approach in any other circumstances;
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`NOW THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`This COVID-19 Addendum to the Protective Order shall be effective immediately
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`upon entry and shall continue in effect until September 1, 2020, unless extended by agreement of
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`the Parties or further order of the Court. Except as modified herein, all other provisions of the
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`Protective Order shall remain in full force and effect.
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`2.
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`Defined terms in this Addendum have the meaning established in the Protective
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`Order entered in this action (i.e., Dkt. No. 45). In addition, “Authorized Reviewer,” in the
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`context of this Addendum, shall mean any person who (a) is authorized under the Protective
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`Order (i.e., Dkt. No. 45) to access materials designated as “CONFIDENTIAL - OUTSIDE
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`ATTORNEYS’ EYES ONLY - SOURCE CODE” and “INTEL CONFIDENTIAL - OUTSIDE
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`ATTORNEYS’ EYES ONLY - SOURCE CODE” and (b) has agreed to be bound by the
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`provisions of this Addendum by signing a copy of Exhibit B.
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 4 of 10 PageID #: 12823
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`3.
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`Notwithstanding anything to the contrary in the Protective Order:
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`(a)
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`Any Remote Review Laptop made available by Defendant may be used as
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`follows:
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`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;
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`No recordable media or recordable devices, including without
`(iii)
`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;
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`Upon the completion of each review session, Authorized Reviewer
`(iv)
`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;
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`(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;
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`Before the Remote Review Laptop is turned on, the Authorized
`(vi)
`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;
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`(vii) Upon receiving such notification, Defendant’s counsel shall
`provide the Authorized Reviewer with a single-use password to access the
`Remote Review Laptop;
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 5 of 10 PageID #: 12824
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`(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;
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`(ix)
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`The Remote Review Laptop must be turned off when not in active
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`use;
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`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;
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`At all times, all network and USB ports and wireless transmitters
`(xi)
`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;
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`(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.
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`(b)
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`Any Remote Review Laptop made available by Defendant may be
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`transported as follows:
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`Via hand carry, Federal Express, or other similarly reliable courier
`(i)
`by Defendant to a location mutually agreed upon by the Parties; and
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`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.
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`(c)
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`Defendant will endeavor to accommodate reasonable print requests from
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`Plaintiff according to the following procedures:
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`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;
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`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,
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 6 of 10 PageID #: 12825
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`and designated as “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY
`- SOURCE CODE”;
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`Upon receipt of such correspondence described in ¶ 3(c)(ii) above,
`(iii)
`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);
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`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).
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`(d)
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`The Authorized Reviewers may keep paper Source Code printouts in a
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`secured locked area in their offices or homes. At all times when not being actively
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`reviewed, all Source Code printouts must be stored within a safe or locked drawer or file
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`cabinet in a dedicated room within the office or home of the Authorized Reviewers that is
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`locked when not in use;
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`(e)
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`Paper Source Code printouts may only be transported or transmitted by at
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`the direction of a person authorized to receive the printouts to another person authorized
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`to receive the printouts on paper via hand carry, Federal Express or other similarly
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`reliable courier;
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`(f)
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`Any Authorized Reviewer in possession of a Remote Review Laptop
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`under the terms of this Addendum shall return such computer to Defendant following the
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`procedure described in Paragraph 3(b)(ii) above (i) on September 1, 2020, unless
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`extended by the Court, or (ii) upon Defendant’s request after the occurrence of any one of
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`the following: (1) the entry of an order dismissing or entering final judgment in this
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`matter; (2) the entry of an order staying or administratively closing the case; (3) the
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`conclusion of the Authorized Reviewer’s engagement with any party to this matter or
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`involvement in this matter; (4) review via the method contemplated by the Protective
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 7 of 10 PageID #: 12826
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`Orders is again feasible consistent with court, federal, state, and local guidance or orders
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`relevant to the parties’ ability to conduct in-person review of source code; or (5) the entry
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`of a subsequent protective order that contemplates the return of Source Code Computers;
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`(g)
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`Each Authorized Reviewer shall sign a copy of this Addendum
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`acknowledging agreement to be bound to the conditions hereof.
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`Page 7 of 10
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`.
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`
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`____________________________________
`ROBERT W. SCHROEDER III
`UNITED STATES DISTRICT JUDGE
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`So ORDERED and SIGNED this 25th day of June, 2020.
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`

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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 8 of 10 PageID #: 12827
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`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
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`times listed below, I reviewed the Source Code Computer provided to me by Apple pursuant to
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`the Covid-19 Addendum to Protective Order. I have listed below the start time and end time for
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`each review session.
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`DATE OF REVIEW
`SESSION
`
`START TIME
`
`END TIME
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 9 of 10 PageID #: 12828
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`__________________________________
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`[SIGNATURE]
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`Case 5:19-cv-00036-RWS Document 353 Filed 06/25/20 Page 10 of 10 PageID #: 12829
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`EXHIBIT B
`
`I,
`
`
`
`
`
`
`
`
`
`, acknowledge and declare that I have received a
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`copy of the Covid-19 Addendum to Protective Order (“Order”) in Maxell, Ltd. v. Apple Inc.,
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`United States District Court, Eastern District of Texas, Texarkana Division, Civil Action No.
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`5:19-cv-00036-RWS. Having read and understood the terms of the Order, I agree to be bound
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`by the terms of the Order and consent to the jurisdiction of said Court for the purpose of any
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`proceeding to enforce the terms of the Order.
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`Name of individual:
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`Present occupation/job description:
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`Name of Company or Firm:
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`Address:
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`Dated:
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`[Signature]
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`Page 10 of 10
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