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
`
`

`

`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
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 3 of 37 PageID #: 532
`
`(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
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 4 of 37 PageID #: 533
`
`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.
`
`(b)
`
`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
`
`own disclosure or use of its own Protected Material for any purpose.
`
`(c)
`
`Notwithstanding the provisions of this Order, any Producing Party may
`
`provide written consent permitting any Receiving Party to use the Producing Party’s Protected
`
`Material in court or in any court filing.
`
`(d)
`
`This Order is without prejudice to the right of any Party to seek further or
`
`additional protection of any Discovery Material or to modify this Order in any way, including,
`
`without limitation, an order that certain matter not be produced at all.
`
`5.
`
`
`
`DURATION
`
`Even after the termination of this case, the confidentiality obligations imposed by
`
`this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order
`
`otherwise directs.
`
`6.
`
`ACCESS TO AND USE OF PROTECTED MATERIAL
`
`(a)
`
` Basic Principles. All Protected Material shall be used solely for this case
`
`or any related appellate proceeding, and not for any other purpose whatsoever, including without
`
`limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue
`
`AGREED PROTECTIVE ORDER – PAGE 4
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 5 of 37 PageID #: 534
`
`proceedings, or any business or competitive purpose or function. Protected Material shall not be
`
`distributed, disclosed or made available to anyone except as expressly provided in this Order.
`
`(b)
`
`Patent Prosecution Bar. Absent the written consent of the Producing Party,
`
`any person who receives one or more items designated “CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE” shall
`
`not be involved, directly or indirectly, in any of the following activities: (i) advising on, consulting
`
`on, preparing, prosecuting, drafting, editing, and/or amending of patent applications,
`
`specifications, claims, and/or responses to office actions, or otherwise affecting the scope of claims
`
`in patents or patent applications relating to the functionality, operation, and design of the
`
`technology pertaining to the subject matter of the Patents-in-suit, including but not limited to
`
`(a) providing navigation information for a portable terminal and allowing users of a portable
`
`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
`
`priority of functions in the device; or (h) a wireless unlocking system for a mobile device using a
`
`separate registered mobile device, before any foreign or domestic agency, including the United
`
`States Patent and Trademark Office; and (ii) the acquisition of patents (including patent
`
`applications), or the rights to any such patents or patent applications with the right to sublicense,
`
`AGREED PROTECTIVE ORDER – PAGE 5
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 6 of 37 PageID #: 535
`
`(a) providing navigation information for a portable terminal and allowing users of a portable
`
`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
`
`priority of functions in the device; or (h) a wireless unlocking system for a mobile device using a
`
`separate registered mobile device. For sake of clarity, any attorney representing a Party, whether
`
`in-house or outside counsel, and any person associated with a Party and permitted to receive
`
`another Party’s Protected Material, may participate, supervise and assist in any and all proceedings
`
`before the U.S. Patent and Trademark Office related to the Party’s Patents-in-suit, including
`
`without limitation Inter Partes Review (IPR) proceedings, even if they have received the other
`
`Party’s Protected Material, provided that they do not participate or assist in any claim drafting or
`
`amendment of claims in such proceedings. These prohibitions shall begin when access to
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY – SOURCE CODE” materials are first received by the affected individual, and shall
`
`end two (2) years after the final resolution of this action, including all appeals.
`
`(c)
`
`Secure Storage, No Export. Protected Material must be stored and
`
`maintained by a Receiving Party at a location in the United States and in a secure manner that
`
`ensures that access is limited to the persons authorized under this Order. Certain Protected
`
`AGREED PROTECTIVE ORDER – PAGE 6
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 7 of 37 PageID #: 536
`
`Material may be subject to laws and regulations relating to the export of technical data contained
`
`therein, including the release of such technical data to foreign persons or nationals in the United
`
`States or elsewhere. See, e.g., 15 CFR 734.2. The Producing Party shall identify material that may
`
`be subject to export control regulations (“Export Control Material”), as described in 15 CFR 734.2
`
`and the Commerce Control List. No Export Control Material may leave the territorial boundaries
`
`of the United States of America or be made available to any foreign national who is not (i) lawfully
`
`admitted for permanent residence in the United States or (ii) identified as a protected individual
`
`under the Immigration and Naturalization Act (8 U.S.C. 1324b(a)(3)). Without limitation, this
`
`prohibition extends to Export Control Material (including copies) in physical and electronic form.
`
`The viewing of Export Control Material through electronic means outside the territorial limits of
`
`the United States of America is similarly prohibited. The restrictions contained within this
`
`paragraph may be amended through the consent of the producing Party to the extent that such
`
`agreed
`
`to procedures conform with applicable export control
`
`laws and regulations.
`
`Notwithstanding the foregoing, to the extent that a Producing Party of Expert Control Material
`
`makes a witness available for deposition outside the United States, the deposing party may, to the
`
`extent permitted by law, transport (subject to the restrictions set forth in this Protective Order) such
`
`Party’s Export Control Material reasonably necessary for the deposition and may use the Export
`
`Control Materials at the deposition. Should the Receiving Party not be able to use the Export
`
`Control Materials at the deposition due to any export control regulations of the constructions of
`
`this Order, the Producing Party will make the witness available for deposition in the United States.
`
`(d)
`
`Legal Advice Based on Protected Material. Nothing in this Protective Order
`
`shall be construed to prevent counsel from advising their clients with respect to this case based in
`
`AGREED PROTECTIVE ORDER – PAGE 7
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 8 of 37 PageID #: 537
`
`whole or in part upon Protected Materials, provided counsel does not disclose the Protected
`
`Material itself except as provided in this Order.
`
`(e)
`
`Limitations. Nothing in this Order shall restrict in any way a Producing
`
`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
`
`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
`
`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
`
`to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
`
`and/or provided by the Producing Party to the Receiving Party or a non-party without an
`
`obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
`
`Producing Party; or (v) pursuant to order of the Court.
`
`7.
`
`DESIGNATING PROTECTED MATERIAL
`
`(a)
`
`Available Designations. Any Producing Party may designate Discovery
`
`Material with any of the following designations, provided that it meets the requirements for such
`
`designations as provided for herein: “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
`
`EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE
`
`CODE.”
`
`(b) Written Discovery and Documents and Tangible Things. Written
`
`discovery, documents (which include “electronically stored information,” as that phrase is used in
`
`Federal Rule of Civil Procedure 34), and tangible things that meet the requirements for the
`
`confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
`
`appropriate designation on every page of the written material prior to production. For digital files
`
`being produced, the Producing Party may mark each viewable page or image with the appropriate
`
`designation, and mark the medium, container, and/or communication in which the digital files were
`
`AGREED PROTECTIVE ORDER – PAGE 8
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 9 of 37 PageID #: 538
`
`contained. In the event that original documents are produced for inspection, the original
`
`documents shall be presumed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” during the
`
`inspection and re-designated, as appropriate during the copying process.
`
`(c)
`
`Native Files. Where electronic files and documents are produced in native
`
`electronic format, such electronic files and documents shall be designated for protection under this
`
`Order by appending to the file names or designators information indicating whether the file
`
`contains “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
`
`“CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE,” material, or
`
`shall use any other reasonable method for so designating Protected Materials produced in
`
`electronic format. When electronic files or documents are printed for use at deposition, in a court
`
`proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to
`
`Paragraph 12, the party printing the electronic files or documents shall affix a legend to the printed
`
`document corresponding to the designation of the Designating Party and including the production
`
`number and designation associated with the native file. If a Party has used a .tiff, .pdf, or other
`
`image format version of a document produced in native file format, such Party must (1) note that
`
`the image format version accurately represents the natively-produced document and no
`
`information was altered in, hidden by, or eliminated by creating the image format version, or (2)
`
`indicate that the image format version is annotated or otherwise amended.
`
`(d)
`
`Depositions and Testimony.
`
`(i)
`
`Parties or testifying persons or entities may designate depositions
`
`and other testimony with the appropriate designation by indicating on the record at the time the
`
`testimony is given or by sending written notice of how portions of the transcript of the testimony is
`
`designated within thirty (30) days of receipt of the transcript of the testimony. If no indication on
`
`AGREED PROTECTIVE ORDER – PAGE 9
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 10 of 37 PageID #: 539
`
`the record is made, all information disclosed during a deposition shall be deemed
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the time within which it may be
`
`appropriately designated as provided for herein has passed. Any Party that wishes to disclose the
`
`transcript, or information contained therein, may provide written notice of its intent to treat the
`
`transcript as non-confidential, after which time, any Party that wants to maintain any portion of
`
`the transcript as confidential must designate the confidential portions within fourteen (14) days, or
`
`else the transcript may be treated as non-confidential. Any Protected Material that is used in the
`
`taking of a deposition shall remain subject to the provisions of this Protective Order, along with the
`
`transcript pages of the deposition testimony dealing with such Protected Material. In such cases
`
`the court reporter shall be informed of this Protective Order and shall be required to operate in a
`
`manner consistent with this Protective Order. In the event the deposition is videotaped, the original
`
`and all copies of the videotape shall be marked by the video technician to indicate that the contents
`
`of the videotape are subject to this Protective Order, substantially along the lines of “This videotape
`
`contains confidential testimony used in this case and is not to be viewed or the contents thereof
`
`to be displayed or revealed except pursuant to the terms of the operative Protective Order in
`
`this matter or pursuant to written stipulation of the parties.”
`
`(ii)
`
`Nothing contained herein shall be construed to prejudice any Party’s
`
`right to use any Protected Material in taking testimony at any deposition or hearing provided that
`
`the Protected Material is only disclosed to a person(s) who is: (i) identified in the Protected
`
`Material as an author, addressee, or copy recipient of such information; (ii) although not identified
`
`as an author, addressee, or copy recipient of such Protected Material, is shown through
`
`foundational testimony to have received such Protected Material; or (iii) is entitled hereunder to
`
`access to Protected Material. Protected Material shall not be disclosed to any other persons unless
`
`AGREED PROTECTIVE ORDER – PAGE 10
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 11 of 37 PageID #: 540
`
`prior authorization is obtained from counsel representing the Producing Party or from the Court.
`
`Counsel for any Producing Party shall have the right to exclude from oral depositions, other
`
`than the deponent, deponent’s counsel, the reporter and videographer (if any), and the
`
`translator (if any), any person who is not authorized by this Protective Order to receive or
`
`access Protected Material based on the designation of such Protected Material. Such right of
`
`exclusion shall be applicable only during periods of examination or testimony regarding such
`
`Protected Material.
`
`8.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
`
`(a)
`
`A Producing Party may
`
`designate Discovery Material
`
`as
`
`“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially
`
`sensitive information.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL” may be disclosed only to the following:
`
`(i)
`
`The Receiving Party’s Outside Counsel, such counsel’s immediate
`
`paralegals and staff, and any copying or clerical litigation support services working at the direction
`
`of such counsel, paralegals, and staff;
`
`(ii)
`
`Not more than three (3) representatives of the Receiving Party who
`
`are officers or employees of the Receiving Party, who may be, but need not be, in-house counsel
`
`for the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is
`
`reasonably necessary for this case, provided that: (a) each such person has agreed to be bound by
`
`the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved
`
`objections to such disclosure exist after proper notice has been given to all Parties as set forth
`
`in Paragraph 12 below;
`
`AGREED PROTECTIVE ORDER – PAGE 11
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 12 of 37 PageID #: 541
`
`(iii) Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
`
`of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c)
`
`such expert or consultant accesses the materials in the United States only, and does not transport
`
`them to or access them from any foreign jurisdiction; and (d) no unresolved objections to such
`
`disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below;
`
`(iv) Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(v)
`
`The Court, jury, and court personnel;
`
`(vi) Graphics, translation, design, and/or trial consulting personnel,
`
`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
`
`Exhibit A;
`
`(vii) Mock jurors who have signed an undertaking or agreement agreeing
`
`not to publicly disclose Protected Material and to keep any information concerning Protected
`
`Material confidential;
`
`(viii) Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`Party.
`
`(ix) Any other person with the prior written consent of the Producing
`
`AGREED PROTECTIVE ORDER – PAGE 12
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 13 of 37 PageID #: 542
`
`9.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY”
`
`
`
`
`(a)
`
`A Producing Party may
`
`designate Discovery Material
`
`as
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it contains or reflects information that is
`
`extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that
`
`the disclosure of such Discovery Material is likely to cause economic harm or significant
`
`competitive disadvantage to the Producing Party. The Parties agree that the following information,
`
`if non-public, shall be presumed to merit the “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`
`designation: trade secrets, pricing information, financial data, sales information, sales or
`
`marketing forecasts or plans, business plans, sales or marketing strategy, product development
`
`information, engineering documents, testing documents, employee information, and other non-
`
`public information of similar competitive and business sensitivity. For sake of clarity, this
`
`presumption does not relieve a Producing Party of its obligation to designate such material
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” in order to receive the protections granted
`
`by this Order, subject to the provisions of Paragraph 17.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:
`
`(i)
`
`The Receiving Party’s Outside Counsel, provided that such Outside
`
`Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
`
`730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such
`
`Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation support
`
`services working at the direction of such counsel, paralegals, and staff;
`
`(ii) Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`AGREED PROTECTIVE ORDER – PAGE 13
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 14 of 37 PageID #: 543
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
`
`of retention to become an officer, director, or employee of a Party or of a competitor of a Party;
`
`(c) such expert or consultant is not involved in competitive decision-making, as defined by U.S.
`
`Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a
`
`competitor of a Party; (d) such expert or consultant accesses the materials in the United States
`
`only, and does not transport them to or access them from any foreign jurisdiction; and (e) no
`
`unresolved objections to such disclosure exist after proper notice has been given to all Parties as
`
`set forth in Paragraph 12 below;
`
`(iii) Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(iv)
`
`The Court, jury, and court personnel;
`
`(v)
`
`Graphics, translation, design, and/or trial consulting personnel,
`
`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
`
`Exhibit A;
`
`(vi)
`
`In addition, a Party may disclose arguments and materials derived
`
`from Discovery Material designated as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY” to
`
`mock jurors who have first agreed to be bound by the provisions of the Protective Order by
`
`signing a copy of Exhibit A. A Party may not disclose to mock jurors any original, as-produced
`
`materials or information (including, for example, documents, deposition testimony, or
`
`interrogatory responses) produced by another Party designated as “CONFIDENTIAL -
`
`ATTORNEYS’ EYES ONLY;”
`
`AGREED PROTECTIVE ORDER – PAGE 14
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 15 of 37 PageID #: 544
`
`(vii) Any shadow juror retained by a Party for use solely during trial,
`
`provided that: (a) such shadow juror has first agreed to be bound by the provisions of the Protective
`
`Order by signing a copy of Exhibit A; (b) such shadow juror is not a current officer, director, or
`
`employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become
`
`an officer, director, or employee of a Party or of a competitor of a Party; (c) such shadow juror is
`
`not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d
`
`1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party; and (d) no
`
`unresolved objections to such disclosure exist after proper notice has been given to all Parties as
`
`set forth in Paragraph 12 below.
`
`(viii) Any mediator who is assigned to hear this matter, and his or her
`
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`
`Protective Order; and
`
`Party.
`
`(ix) Any other person with the prior written consent of the Producing
`
`10.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE”
`
`(a)
`
`A Producing Party that produces Source Code may designate the Source
`
`Code as “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” if it
`
`comprises or includes confidential, proprietary, and/or trade secret Source Code.
`
`(b)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
`
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY - SOURCE CODE” shall be
`
`subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to
`
`Paragraph 11 below, solely to:
`
`AGREED PROTECTIVE ORDER – PAGE 15
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 16 of 37 PageID #: 545
`
`(i)
`
`The Receiving Party’s Outside Counsel, provided that such Outside
`
`Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
`
`730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such
`
`Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation support
`
`services working at the direction of such counsel, paralegals, and staff;
`
`(ii)
`
`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
`
`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`
`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
`
`of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c)
`
`such expert or consultant is not involved in competitive decision-making, as defined by U.S. Steel
`
`v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of
`
`a Party; and (d) no unresolved objections to such disclosure exist after proper notice has been given
`
`to all Parties as set forth in Paragraph 12 below;
`
`(iii) Court reporters, stenographers and videographers retained to record
`
`testimony taken in this action;
`
`(iv)
`
`The Court, jury, and court personnel;
`
`(v)
`
`Graphics, translation, design, and/or trial consulting personnel,
`
`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
`
`Exhibit A;
`
`(vi) Any shadow juror retained by a Party for use solely during trial ,
`
`provided that: (a) such shadow juror has first agreed to be bound by the provisions of the Protective
`
`AGREED PROTECTIVE ORDER – PAGE 16
`732788077.1
`
`

`

`Case 5:19-cv-00036-RWS Document 45 Filed 07/02/19 Page 17 of 37 PageID #: 546
`
`Order by signing a copy of Exhibit A; (b) such shadow juror is not a current officer, director, or
`
`employee of a Party or of a competitor of a Party, nor anticipated at the time of retention to become
`
`an officer, director, or employee of a Party or of a competitor of a Party; (c) such shadow juror is
`
`not involved in competitive decision-making, as defined by U.S. Steel v. United States, 730 F.2d
`
`1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Par