Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 1 of 48 PageID #: 18139
`Case 5:19-cv-00036-RWS Documenfiéfii—E figfiflflpZ/ZO Page 1 of 48 PageID #: 18139
`
`EXHIBIT 3
`
`EXHIBIT 3
`
`PUBLIC VERSION
`
`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 2 of 48 PageID #: 18140
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action
`
`UNITED STATES DISTRICT COURT
`for the
` Eastern District of Texas
`__________ District of __________
`
`Civil Action No.
`
`5:19-cv-00036-RWS
`
`))))))
`
`Maxell Ltd.
`Plaintiff
`v.
`Apple Inc.
`
`Defendant
`
`SUBPOENA TO TESTIFY AT A DEPOSITION IN A CIVIL ACTION
`
`To:
`
`Sony Corp. of America
`550 Madison Avenue, New York, NY 10022
`(Name of person to whom this subpoena is directed)
`✔
`(cid:117) Testimony: YOU ARE COMMANDED to appear at the time, date, and place set forth below to testify at a
`deposition to be taken in this civil action. If you are an organization, you must designate one or more officers, directors,
`or managing agents, or designate other persons who consent to testify on your behalf about the following matters, or
`those set forth in an attachment:
`See Attachment A.
`
`Place:
`
`O’Melveny & Myers LLP
`Times Square Tower, 7 Times Square
`New York, NY 10036
`
`Date and Time:
`
`03/20/2020 9:00 am
`
`The deposition will be recorded by this method:
`
`stenographic, sound, and video
`
`✔
`(cid:117) Production: You, or your representatives, must also bring with you to the deposition the following documents,
`electronically stored information, or objects, and must permit inspection, copying, testing, or sampling of the
`See Attachment A to the Notice of Subpoena to Produce Documents
`material:
`
`The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
`Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
`respond to this subpoena and the potential consequences of not doing so.
`
`Date:
`
`03/06/2020
`
`CLERK OF COURT
`
`Signature of Clerk or Deputy Clerk
`
`OR
`
`/s/ Laura Bayne Gore
`Attorney’s signature
`
`Apple Inc.
`The name, address, e-mail address, and telephone number of the attorney representing (name of party)
`, who issues or requests this subpoena, are:
`Laura Bayne Gore, O'Melveny & Myers LLP, 7 Times Square, New York, NY 10036; lbane@omm.com; 212-326-2251
`
`Notice to the person who issues or requests this subpoena
`If this subpoena commands the production of documents, electronically stored information, or tangible things before
`trial, a notice and a copy of the subpoena must be served on each party in this case before it is served on the person to
`whom it is directed. Fed. R. Civ. P. 45(a)(4).
`
`PUBLIC VERSION
`
`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 3 of 48 PageID #: 18141
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 2)
`
`Civil Action No.
`
`5:19-cv-00036-RWS
`
`PROOF OF SERVICE
`(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
`
`I received this subpoena for (name of individual and title, if any)
`.
`
`on (date)
`
`(cid:117) I served the subpoena by delivering a copy to the named individual as follows:
`
`(cid:117) I returned the subpoena unexecuted because:
`
`on (date)
`
`; or
`
`Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
`tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
`$
`.
`
`My fees are $
`
`for travel and $
`
`for services, for a total of $
`
`0.00
`
`.
`
`.
`
`I declare under penalty of perjury that this information is true.
`
`Date:
`
`Additional information regarding attempted service, etc.:
`
`Server’s signature
`
`Printed name and title
`
`Server’s address
`
`PUBLIC VERSION
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`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 4 of 48 PageID #: 18142
`
`AO 88A (Rev. 02/14) Subpoena to Testify at a Deposition in a Civil Action (Page 3)
`Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
`(i) disclosing a trade secret or other confidential research, development,
`or commercial information; or
`(ii) disclosing an unretained expert’s opinion or information that does
`not describe specific occurrences in dispute and results from the expert’s
`study that was not requested by a party.
`(C) Specifying Conditions as an Alternative. In the circumstances
`described in Rule 45(d)(3)(B), the court may, instead of quashing or
`modifying a subpoena, order appearance or production under specified
`conditions if the serving party:
`(i) shows a substantial need for the testimony or material that cannot be
`otherwise met without undue hardship; and
`(ii) ensures that the subpoenaed person will be reasonably compensated.
`
`(c) Place of Compliance.
`
` (1) For a Trial, Hearing, or Deposition. A subpoena may command a
`person to attend a trial, hearing, or deposition only as follows:
` (A) within 100 miles of where the person resides, is employed, or
`regularly transacts business in person; or
` (B) within the state where the person resides, is employed, or regularly
`transacts business in person, if the person
` (i) is a party or a party’s officer; or
` (ii) is commanded to attend a trial and would not incur substantial
`expense.
`
` (2) For Other Discovery. A subpoena may command:
` (A) production of documents, electronically stored information, or
`tangible things at a place within 100 miles of where the person resides, is
`employed, or regularly transacts business in person; and
` (B) inspection of premises at the premises to be inspected.
`
`(d) Protecting a Person Subject to a Subpoena; Enforcement.
`
` (1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
`responsible for issuing and serving a subpoena must take reasonable steps
`to avoid imposing undue burden or expense on a person subject to the
`subpoena. The court for the district where compliance is required must
`enforce this duty and impose an appropriate sanction—which may include
`lost earnings and reasonable attorney’s fees—on a party or attorney who
`fails to comply.
`
` (2) Command to Produce Materials or Permit Inspection.
`(A) Appearance Not Required. A person commanded to produce
`documents, electronically stored information, or tangible things, or to
`permit the inspection of premises, need not appear in person at the place of
`production or inspection unless also commanded to appear for a deposition,
`hearing, or trial.
`(B) Objections. A person commanded to produce documents or tangible
`things or to permit inspection may serve on the party or attorney designated
`in the subpoena a written objection to inspecting, copying, testing, or
`sampling any or all of the materials or to inspecting the premises—or to
`producing electronically stored information in the form or forms requested.
`The objection must be served before the earlier of the time specified for
`compliance or 14 days after the subpoena is served. If an objection is made,
`the following rules apply:
`(i) At any time, on notice to the commanded person, the serving party
`may move the court for the district where compliance is required for an
`order compelling production or inspection.
` (ii) These acts may be required only as directed in the order, and the
`order must protect a person who is neither a party nor a party’s officer from
`significant expense resulting from compliance.
`
` (3) Quashing or Modifying a Subpoena.
`
`(A) When Required. On timely motion, the court for the district where
`compliance is required must quash or modify a subpoena that:
`
` (i) fails to allow a reasonable time to comply;
`(ii) requires a person to comply beyond the geographical limits
`specified in Rule 45(c);
`(iii) requires disclosure of privileged or other protected matter, if no
`exception or waiver applies; or
`(iv) subjects a person to undue burden.
`(B) When Permitted. To protect a person subject to or affected by a
`subpoena, the court for the district where compliance is required may, on
`motion, quash or modify the subpoena if it requires:
`
`(e) Duties in Responding to a Subpoena.
`
` (1) Producing Documents or Electronically Stored Information. These
`procedures apply to producing documents or electronically stored
`information:
`(A) Documents. A person responding to a subpoena to produce documents
`must produce them as they are kept in the ordinary course of business or
`must organize and label them to correspond to the categories in the demand.
`(B) Form for Producing Electronically Stored Information Not Specified.
`If a subpoena does not specify a form for producing electronically stored
`information, the person responding must produce it in a form or forms in
`which it is ordinarily maintained or in a reasonably usable form or forms.
`(C) Electronically Stored Information Produced in Only One Form. The
`person responding need not produce the same electronically stored
`information in more than one form.
`(D) Inaccessible Electronically Stored Information. The person
`responding need not provide discovery of electronically stored information
`from sources that the person identifies as not reasonably accessible because
`of undue burden or cost. On motion to compel discovery or for a protective
`order, the person responding must show that the information is not
`reasonably accessible because of undue burden or cost. If that showing is
`made, the court may nonetheless order discovery from such sources if the
`requesting party shows good cause, considering the limitations of Rule
`26(b)(2)(C). The court may specify conditions for the discovery.
`
`(2) Claiming Privilege or Protection.
`(A) Information Withheld. A person withholding subpoenaed information
`under a claim that it is privileged or subject to protection as trial-preparation
`material must:
`(i) expressly make the claim; and
`(ii) describe the nature of the withheld documents, communications, or
`tangible things in a manner that, without revealing information itself
`privileged or protected, will enable the parties to assess the claim.
`(B) Information Produced. If information produced in response to a
`subpoena is subject to a claim of privilege or of protection as
`trial-preparation material, the person making the claim may notify any party
`that received the information of the claim and the basis for it. After being
`notified, a party must promptly return, sequester, or destroy the specified
`information and any copies it has; must not use or disclose the information
`until the claim is resolved; must take reasonable steps to retrieve the
`information if the party disclosed it before being notified; and may promptly
`present the information under seal to the court for the district where
`compliance is required for a determination of the claim. The person who
`produced the information must preserve the information until the claim is
`resolved.
`
`(g) Contempt.
`The court for the district where compliance is required—and also, after a
`motion is transferred, the issuing court—may hold in contempt a person
`who, having been served, fails without adequate excuse to obey the
`subpoena or an order related to it.
`
`For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
`
`PUBLIC VERSION
`
`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 5 of 48 PageID #: 18143
`
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`Plaintiff,
`
`
`
`
`
`
`
`vs.
`
`APPLE INC.,
`
` Civil Action No. 5:19-cv-00036-RWS
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`
`
`Defendant.
`
`DEFENDANT APPLE INC.’S NOTICE OF DEPOSITION TO
`SONY CORPORATION OF AMERICA
`
`Pursuant to Rule 45 of the Federal Rules of Civil Procedure, Defendant Apple Inc., by and
`
`through undersigned counsel of record, will take the deposition of non-party Sony Corporation of
`
`America (“Sony”). The deposition is being taken for all purposes permitted under the Federal
`
`Rules of Civil Procedure, including discovery and for use at trial.
`
`The deposition will begin at 9:00 AM on March 20, 2020, at O’Melveny & Myers LLP
`
`Times Square Tower, 7 Times Square, New York, NY 10036, or at another location upon which
`
`counsel and the subpoenaed party may jointly agree.
`
`In accordance with Rule 30(b)(6), Sony is required to designate one or more officers,
`
`directors, managing agents, or other persons to testify on its behalf as to the matters known by, or
`
`reasonably available to Sony, as described more particularly in Attachment A hereto.
`
`Pursuant to the Stipulated Protective Order (Attachment B), the requested deposition
`
`testimony may be given under the relevant protections offered by the Stipulated Protective Order.
`
`
`
`
`
`
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`PUBLIC VERSION
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`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 6 of 48 PageID #: 18144
`
`
`Dated: March 6, 2020
`
`
`
`
`
`/s/ Laura Bayne Gore
`
`
`
`Luann L. Simmons (Pro Hac Vice)
`lsimmons@omm.com
`O’MELVENY & MYERS LLP
`Two Embarcadero Center
`28th Floor
`San Francisco, CA 94111
`Telephone: 415-984-8700
`Facsimile: 415-984-8701
`
`Xin-Yi Zhou (Pro Hac Vice)
`vzhou@omm.com
`Anthony G. Beasley (TX #24093882)
`tbeasley@omm.com
`O’MELVENY & MYERS LLP
`400 S. Hope Street
`Los Angeles, CA 90071
`Telephone: 213-430-6000
`Facsimile: 213-430-6407
`
`Laura Bayne Gore (Pro Hac Vice)
`lbayne@omm.com
`O’MELVENY & MYERS LLP
`Times Square Tower, 7 Times Square
`New York, NY 10036
`Telephone: 212-326-2000
`Facsimile: 212-326-2061
`
`Melissa R. Smith (TX #24001351)
`melissa@gilliamsmithlaw.com
`GILLIAM & SMITH, LLP
`303 South Washington Avenue
`Marshall, Texas 75670
`Telephone: (903) 934-8450
`Facsimile: (903) 934-9257
`
`Attorneys for Defendant Apple Inc.
`
`
`
`
`
`
`
`PUBLIC VERSION
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`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 7 of 48 PageID #: 18145
`
`
`ATTACHMENT A
`DEFINITIONS
`Unless the context indicates otherwise, the following words and phrases have the
`
`meanings given:
`“Sony,” “You” and “Your” mean Sony Corporation of America and any of its
`1.
`predecessors, successors, assigns, agents, employees, officers, directors, affiliates, partners,
`subsidiaries, parent corporations, investors, attorneys or other persons acting on its behalf,
`including but not limited to Sony Corporation.
`“Sony DCR-TRV900” means the Sony DCR-TRV900, as shown in the picture
`2.
`below and described in https://www.sony.net/SonyInfo/News/Press_Archive/199807/98-068/,
`and in “Sony Digital Video Camera Recorder Operating Instructions” for DCR-TRV900,
`available at https://www.sony.com/electronics/support/res/manuals/3864/38646321M.pdf (the
`“DCR-TRV900 Manual”).
`
`
`“Sony MVC-FD83” means the Sony MVC-FD83, as shown in the picture below
`3.
`and described in “Sony Digital Still Camera Operating Instructions” for MVC-FD83/FD88
`available at https://www.sony.com/electronics/support/res/manuals/W000/W0007221M.pdf (the
`“Mavica Manual”).
`
`
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`

`

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`
`
`
`“Sony MVC-FD88” means the Sony MVC-FD88, as shown in the picture below
`4.
`and described in “Sony Digital Still Camera Operating Instructions” for MVC-FD83/FD88
`available at https://www.sony.com/electronics/support/res/manuals/W000/W0007221M.pdf (the
`“Mavica Manual”).
`
`
`
`
`
`
`
`
`
`PUBLIC VERSION
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`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 9 of 48 PageID #: 18147
`
`
`DEPOSITION TOPIC NO. 1:
`
`DEPOSITION TOPICS
`
`Sale of the Sony DCR-TRV900 by Sony in the United States prior to January 11, 2000.
`DEPOSITION TOPIC NO. 2:
`
`Sale of the Sony MVC-FD83 by Sony in the United States prior to January 11, 2000.
`DEPOSITION TOPIC NO. 3:
`
`Sale of the Sony MVC-FD88 by Sony in the United States prior to January 11, 2000.
`DEPOSITION TOPIC NO. 4:
`The operation and components of the Sony DCR-TRV900 relating to (1) the pixel
`resolution of the image sensor(s); (2) the pixel resolution of still images; (3) the pixel resolution
`of video files; (4) the pixel resolution of the display screen used to preview scene before
`capturing still images; and (5) the pixel resolution conversion method.
`DEPOSITION TOPIC NO. 5:
`The operation and components of the Sony MVC-FD83 relating to (1) the pixel
`resolution of the image sensor(s); (2) the pixel resolution of still images; (3) the pixel resolution
`of video files; (4) the pixel resolution of the display screen used to preview scene before
`capturing still images; and (5) the pixel resolution conversion method.
`DEPOSITION TOPIC NO. 6:
`The operation and components of the Sony MVC-FD88 relating to (1) the pixel
`resolution of the image sensor(s); (2) the pixel resolution of still images; (3) the pixel resolution
`of video files; (4) the pixel resolution of the display screen used to preview scene before
`capturing still images; and (5) the pixel resolution conversion method.
`DEPOSITION TOPIC NO. 7:
`The marketing and advertising of the Sony DCR-TRV900 in the United States.
`DEPOSITION TOPIC NO. 8:
`The marketing and advertising of the Sony MVC-FD83 in the United States.
`
`
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`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 10 of 48 PageID #: 18148
`
`
`DEPOSITION TOPIC NO. 9:
`The marketing and advertising of the Sony MVC-FD88 in the United States.
`DEPOSITION TOPIC NO. 10:
`The date and manner of the first public dissemination of the DCR-TRV900 Manual.
`DEPOSITION TOPIC NO. 11:
`The date and manner of the first public dissemination of the Mavica Manual.
`DEPOSITION TOPIC NO. 12:
`Whether the DCR-TRV900 was included with the sale of the Sony DCR-TRV900 in the
`United States.
`DEPOSITION TOPIC NO. 13:
`Whether the Mavica Manual was included with the sale of the Sony MVC-FD83 in the
`United States.
`DEPOSITION TOPIC NO. 14:
`Whether the Mavica Manual was included with the sale of the Sony MVC-FD88 in the
`United States.
`DEPOSITION TOPIC NO. 15:
`The design, specification, and operation of the Sony ICX232AQ CCD solid-state image
`sensor.
`DEPOSITION TOPIC NO. 16:
`Any documents produced in response to Apple, Inc.’s Subpoena to Produce Documents,
`Information, or Objects or to Permit Inspection of Premises in a Civil Action.
`
`
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`PUBLIC VERSION
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`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 11 of 48 PageID #: 18149
`Case 5:19-cv-00036-RWS Documentfiggflc EjfigsqgfiZ/ZO Page 11 of 48 PageID #: 18149
`
`ATTACHMENT B
`
`ATTACHMENT B
`
`PUBLIC VERSION
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`

`

`Case 5:19-cv-00036-RWS Document 380-5 Filed 07/02/20 Page 12 of 48 PageID #: 18150
`
`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 1 of 37 PageID #: 530
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF TEXAS
`TEXARKANA DIVISION
`
`MAXELL, LTD.,
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`Defendant.
`
`Civil Action No. 5:19-cv-00036-RWS
`
`JURY TRIAL DEMANDED
`
`AGREED PROTECTIVE ORDER
`REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS
`
`Plaintiff Maxell, Ltd. (“Plaintiff”) and Defendant Apple Inc. (“Defendant”)
`
`anticipate that documents, testimony, or information containing or reflecting confidential,
`
`proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed
`
`or produced during the course of discovery, initial disclosures, and supplemental disclosures
`
`in this case and request that the Court enter this Order setting forth the conditions for treating,
`
`obtaining, and using such information.
`
`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
`
`good cause for the following Agreed Protective Order Regarding the Disclosure and Use of
`
`Discovery Materials (“Order” or “Protective Order”).
`
`1.
`
`PURPOSES AND LIMITATIONS
`
`(a)
`
`Protected Material designated under the terms of this Protective Order shall
`
`be used by a Receiving Party solely for this case or any related appellate proceeding, and shall not
`
`be used directly or indirectly for any other purpose whatsoever.
`
`AGREED PROTECTIVE ORDER – PAGE 1
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`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 2 of 37 PageID #: 531
`
`(b)
`
`The Parties acknowledge that this Order does not confer blanket protections
`
`on all disclosures during discovery, or in the course of making initial or supplemental disclosures
`
`under Rule 26(a). Designations under this Order shall be made with care and shall not be made
`
`absent a good faith belief that the designated material satisfies the criteria set forth below. If it
`
`comes to a Producing Party’s attention that designated material does not qualify for protection at
`
`all, or does not qualify for the level of protection initially asserted, the Producing Party must
`
`promptly notify all other Parties that it is withdrawing or changing the designation.
`
`2.
`
`DEFINITIONS
`
`(a)
`
`“Discovery Material” means all items or information, including from any
`
`non-party, regardless of the medium or manner generated, stored, or maintained (including, among
`
`other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated
`
`in connection with discovery or Rule 26(a) disclosures in this case.
`
`(b)
`
`“Outside Counsel” means (i) outside counsel who appear on the pleadings
`
`as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is
`
`reasonably necessary to disclose the information for this litigation.
`
`(c)
`
`For the purpose of this Protective Order only, “Patents-in-suit” means U.S.
`
`Patent Nos. 6,748,317 (“the ’317 patent”); 6,580,999 (“the ’999 patent”); 8,339,493 (“the ’493
`
`patent”); 7,116,438 (“the ’438 patent”); 6,408,193 (“the ’193 patent”); 10,084,991 (“the ’991
`
`patent”); 6,928,306 (“the ’306 patent”); 6,329,794 (“the ’794 patent”); 10,212,586 (“the ’586
`
`patent”); and 6,430,498 (“the ’498 patent”), and any other patent asserted in this action, as well as
`
`any related patents, patent applications, provisional patent applications, continuations, and/or
`
`divisionals.
`
`AGREED PROTECTIVE ORDER – PAGE 2
`732788077.1
`
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`
`(d)
`
` “Party” means any party to this case, including all of its officers, directors,
`
`employees, consultants, retained experts, and outside counsel and their support staffs.
`
`(e)
`
`“Producing Party” means any Party or non-party that discloses or produces
`
`any Discovery Material in this case.
`
`(f)
`
`“Receiving Party” means any Party who receives Discovery Material from
`
`a Producing Party.
`
`(g)
`
`“Protected Material” means any Discovery Material that is designated as
`
`“CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
`
`- OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” as provided for in this Order.
`
`Protected Material shall not include: (i) advertising materials that have been actually published or
`
`publicly disseminated; and (ii) materials that show on their face they have been disseminated to
`
`the public.
`
`(h)
`
`“Source Code” means computer code, scripts, assembly, binaries, object
`
`code, source code listings and descriptions of source code, object code listings and descriptions of
`
`object code, Hardware Description Language (HDL) or Register Transfer Level (RTL) files that
`
`describe the hardware design of any ASIC or other chip, and Computer Aided Design (CAD) files
`
`that describe the hardware design of any component.
`
`3.
`
`
`
`
`
`COMPUTATION OF TIME
`
`The computation of any period of time prescribed or allowed by this Order shall
`
`be governed by the provisions for computing time set forth in Federal Rules of Civil
`
`Procedure 6.
`
`AGREED PROTECTIVE ORDER – PAGE 3
`732788077.1
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`
`4.
`
`SCOPE
`
`(a)
`
`The protections conferred by this Order cover not only Discovery Material
`
`governed by this Order as addressed herein, but also any information copied or extracted
`
`therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
`
`conversations, or presentations by Parties or their counsel in court or in other settings that might
`
`reveal Protected Material.
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`(b)
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`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
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`own disclosure or use of its own Protected Material for any purpose.
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`(c)
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`Notwithstanding the provisions of this Order, any Producing Party may
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`provide written consent permitting any Receiving Party to use the Producing Party’s Protected
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`Material in court or in any court filing.
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`(d)
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`This Order is without prejudice to the right of any Party to seek further or
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`additional protection of any Discovery Material or to modify this Order in any way, including,
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`without limitation, an order that certain matter not be produced at all.
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`5.
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`
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`DURATION
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`Even after the termination of this case, the confidentiality obligations imposed by
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`this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order
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`otherwise directs.
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`6.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`(a)
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` Basic Principles. All Protected Material shall be used solely for this case
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`or any related appellate proceeding, and not for any other purpose whatsoever, including without
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`limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue
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`AGREED PROTECTIVE ORDER – PAGE 4
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`proceedings, or any business or competitive purpose or function. Protected Material shall not be
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`distributed, disclosed or made available to anyone except as expressly provided in this Order.
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`(b)
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`Patent Prosecution Bar. Absent the written consent of the Producing Party,
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`any person who receives one or more items designated “CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE” shall
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`not be involved, directly or indirectly, in any of the following activities: (i) advising on, consulting
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`on, preparing, prosecuting, drafting, editing, and/or amending of patent applications,
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`specifications, claims, and/or responses to office actions, or otherwise affecting the scope of claims
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`in patents or patent applications relating to the functionality, operation, and design of the
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`technology pertaining to the subject matter of the Patents-in-suit, including but not limited to
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`(a) providing navigation information for a portable terminal and allowing users of a portable
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`terminal to share location information; (b) operating in different camera modes for capturing still
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`images and video images by mixing or culling pixels; (c) providing an information processing
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`device that uses a short-distance communication unit to perform an authentication process to allow
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`a second communication unit to communicate with a display apparatus; (d) performing
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`transmission power control in a CDMA system by controlling the amplifiers; (e) providing an
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`information processing device that manages display/processing of content while providing video
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`telephone functionality; (f) alerting a mobile device’s user of an incoming signal by generating
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`ringing sounds; (g) controlling power consumption in an information processing device based on
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`priority of functions in the device; or (h) a wireless unlocking system for a mobile device using a
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`separate registered mobile device, before any foreign or domestic agency, including the United
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`States Patent and Trademark Office; and (ii) the acquisition of patents (including patent
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`applications), or the rights to any such patents or patent applications with the right to sublicense,
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`AGREED PROTECTIVE ORDER – PAGE 5
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`(a) providing navigation information for a portable terminal and allowing users of a portable
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`terminal to share location information; (b) operating in different camera modes for capturing still
`
`images and video images by mixing or culling pixels; (c) providing an information processing
`
`device that uses a short-distance communication unit to perform an authentication process to allow
`
`a second communication unit to communicate with a display apparatus; (d) performing
`
`transmission power control in a CDMA system by controlling the amplifiers; (e) providing an
`
`information processing device that manages display/processing of content while providing video
`
`telephone functionality; (f) alerting a mobile device’s user of an incoming signal by generating
`
`ringing sounds; (g) controlling power consumption in an information processing device based on
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`priority of functions in the device; or (h) a wireless unlocking system for a mobile device using a
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`separate registered mobile device. For sake of clarity, any attorney representing a Party, whether
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`in-house or outside counsel, and any person associated with a Party and permitted to receive
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`another Party’s Protected Material, may participate, supervise and assist in any and all proceedings
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`before the U.S. Patent and Trademark Office related to the Party’s Patents-in-suit, including
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`without limitation Inter Partes Review (IPR) proceedings, even if they have received the other
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`Party’s Protected Material, provided that they do not participate or assist in any claim drafting or
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`amendment of claims in such proceedings. These prohibitions shall begin when access to
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY – SOURCE CODE” materials are first received by the affected individual, and shall
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`end two (2) years after the final resolution of this action, including all appeals.
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`(c)
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`Secure Storage, No Export. Protected Material must be stored and
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`maintained by a Receiving Party at a location in the United States and in a secure manner that
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`ensures that access is limited to the persons authorized under this Order. Certain Protected
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`AGREED PROTECTIVE ORDER – PAGE 6
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`Material may be subject to laws and regulations relating to the export of technical data contained
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`therein, including the release of such technical data to foreign persons or nationals in the United
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`States or elsewhere. See, e.g., 15 CFR 734.2. The Producing Party shall identify material that may
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`be subject to export control regulations (“Export Control Material”), as described in 15 CFR 734.2
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`and the Commerce Control List. No Export Control Material may leave the territorial boundaries
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`of the United States of America or be made available to any foreign national who is not (i) lawfully
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`admitted for permanent residence in the United States or (ii) identified as a protected individual
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`under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)). Without limitation, this
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`prohibition extends to Export Control Material (including copies) in physical and electronic form.
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`The viewing of Export Control Material through electronic means outside the territorial limits of
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`the United States of America is similarly prohibited. The restrictions contained within this
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`paragraph may be amended through the consent of the producing Party to the extent that such
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`agreed
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`to procedures conform with applicable export control
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`laws and regulations.
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`Notwithstanding the foregoing, to the extent that a Producing Party of Expert Control Material
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`makes a witness available for deposition outside the United States, the deposing party may, to the
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`extent permitted by law, transport (subject to the restrictions set forth in this Protective Order) such
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`Party’s Export Control Material reasonably necessary for the deposition and may use the Export
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`Control Materials at the deposition. Should the Receiving Party not be able to use the Export
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`Control Materials at the deposition due to any export control regulations of the constructions of
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`this Order, the Producing Party will make the witness available for deposition in the United States.
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`(d)
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`Legal Advice Based on Protected Material. Noth