Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 1 of 33 PageID #: 3906
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`IN THE UNITED STATES DISTRICT
`COURT FOR THE EASTERN DISTRICT
`OF TEXAS TEXARKANA DIVISION
`
`
`
`
`
`
`
`
`
`
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`MAXELL, LTD.,
`
`Plaintiff,
`
`v.
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`APPLE INC.,
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`Defendant.
`
`
`
`
`Civil Action No. 5:19-cv-00036-RWS
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`JURY TRIAL DEMANDED
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`
`AGREED SUPPLEMENTAL PROTECTIVE ORDER
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`This Agreed Supplemental Protective Order is in supplementation to the Plaintiff and
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`Defendant’s (together “the Parties”) previous Agreed Protective Order (“Protective Order”)
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`(Docket No. 45) and is agreed to by the Parties. The Parties anticipate that they may produce
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`confidential source code, schematics, and other documents in this action that include or
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`incorporate confidential information belonging to Qualcomm Incorporated (“QUALCOMM”),
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`a non-party to the action. The Parties and Non-Party QUALCOMM have agreed to provisions
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`in addition to those contained in the Protective Order (“Docket No. 45) to protect against misuse
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`or disclosure of such QUALCOMM Confidential Information. Accordingly, it is hereby
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`ORDERED
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`that source code, schematics, or documents
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`that
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`incorporate
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`QUALCOMM Confidential Information produced in connection with the above- captioned
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`matter that are designated as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” and
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE
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`CODE” shall be subject to the following restrictions:
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`

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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 2 of 33 PageID #: 3907
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`I.
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`1.
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`DEFINITIONS
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`“QUALCOMM MATERIAL”: Confidential information (regardless of how
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`generated, stored, or maintained) or tangible things that include or incorporate Non-Party
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`QUALCOMM Confidential Information, that Non-Party QUALCOMM (i) would not normally
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`reveal to third parties except in confidence, or has undertaken with others to maintain in
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`confidence, (ii) believes in good faith is significantly sensitive, or (iii) protected by a right to
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`privacy under federal or state law, or any other applicable privilege or right related to
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`confidentiality or privacy. QUALCOMM MATERIAL includes all information, documents,
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`source code, schematics, testimony, and things produced, served, or otherwise provided in this
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`action by any Party or by Non-Party QUALCOMM, that include or incorporate QUALCOMM
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`Confidential Information.
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`2.
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” material:
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`information, documents, and things that include or incorporate QUALCOMM MATERIAL.
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`3.
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`“Source Code”: includes human-readable programming language text that
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`defines software, firmware, (collectively, “software Source Code”) and integrated circuits
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`(“hardware Source Code”). Text files containing Source Code shall hereinafter be referred to as
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`“Source Code files.” Software Source Code files shall include, but are not limited to, files
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`containing Source Code in “C,” “C++,” BREW, Java ME, J2ME, assembler, digital signal
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`processor (DSP) programming languages, and other human readable text programming
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`languages. Software Source Code files further include “.include files,” “make” files, “link”
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`files, and other human-readable text files used in the generation and/or building of software
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`directly executed on a microprocessor, micro-controller, or DSP. Hardware Source Code files
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`include, but are not limited to, files containing Source Code in VDHL, Verilog, and other
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 3 of 33 PageID #: 3908
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`Hardware Description Language (“HDL”) formats, including but not limited to, Register
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`Transfer Level (“RTL”) descriptions.
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`4.
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`“Chip-Level Schematics”: means symbolic representations of analog electric or
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`electronic circuits from which the physical structure of a chip is directly derived.
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`5.
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`“QUALCOMM
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`– OUTSIDE ATTORNEYS’ EYES ONLY
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`–
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`CONFIDENTIAL SOURCE CODE” Material: QUALCOMM MATERIAL that includes
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`Source Code and Chip- Level Schematics that constitute proprietary technical or commercially
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`sensitive competitive information that Non-Party QUALCOMM maintains as highly
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`confidential in its business, the disclosure of which is likely to cause harm to the competitive
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`position of Non-Party QUALCOMM. This includes Source Code and Chip-Level Schematics
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`in the Producing Party’s possession, custody, or control, and made available for inspection by
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`the Producing Party.
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`6.
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`“Designated QUALCOMM Material”: material
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`that
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`is designated
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`“QUALCOMM OUTSIDE ATTORNEYS’ EYES ONLY” or “QUALCOMM – OUTSIDE
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`ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE” under this Supplemental
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`Protective Order.
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`7.
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`“Designated Source Code Material”: material that is designated “QUALCOMM
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`– OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE” under this
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`Supplemental Protective Order.
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`8.
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`“Personnel Retained by a Receiving Party in this Action” means any
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`consultants, experts, or outside counsel (including their support staff) that have been and
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`continue to be retained by a Receiving Party in this action. For the sake of clarity, any person
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`who was retained by a Receiving Party in this action will no longer fall under this definition if
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 4 of 33 PageID #: 3909
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`that person ceases to be retained by a Receiving Party in this action.
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`9.
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`“Party” means any Party to the above-captioned action, including all of its
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`officers, directors, employees, consultants, retained experts, and all support staff
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`thereof.“Producing Party” means a party or non-party that discloses or produces Designated
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`QUALCOMM Material in the above-captioned actions.
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`10.
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`“Receiving Party” a Party that receives Designated QUALCOMM Material
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`from a Producing Party in the above-captioned actions.
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`11.
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`“Authorized Reviewer(s)” shall mean persons authorized
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`to
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`review
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`“QUALCOMM OUTSIDE ATTORNEYS’ EYES ONLY” and “QUALCOMM – OUTSIDE
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`ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE” material in accordance
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`with this Supplemental Protective Order and the Protective Order.
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`12.
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`“Counsel of Record”: (i) Outside Counsel who appears on the pleadings, or has
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`entered an appearance in this action, as counsel for a Party, and (ii) partners, principals, counsel,
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`associates, employees, and contract attorneys of such Outside Counsel to whom it is reasonably
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`necessary to disclose the information for this litigation, including supporting personnel
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`employed by the attorneys, such as paralegals, legal translators, legal secretaries, legal clerks
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`and shorthand reporters.
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`13.
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`“Outside Consultant”: a person with specialized knowledge or experience in a
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`matter pertinent to the litigation who has been retained by Counsel of Record to serve as an
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`expert witness or a litigation consultant in this action (including any necessary support
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`personnel of such person to whom disclosure is reasonably necessary for this litigation), and
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`who is not a current employee of a Party, of a competitor of a Party, or of Non-Party
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`QUALCOMM, and who, at the time of retention, is not anticipated to become an employee
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 5 of 33 PageID #: 3910
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`of, or a non-litigation consultant of: 1) a Party, 2) a competitor of a Party, 3) a competitor of
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`Non-Party QUALCOMM, or of 4) Non- Party QUALCOMM.
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`14.
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`“Professional Vendors”: persons or entities that provide litigation support
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`services (e.g., photocopying; videotaping; translating; designing and preparing exhibits,
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`graphics, or demonstrations; organizing, storing, retrieving data in any form or medium; etc.)
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`and their employees and subcontractors who have been retained or directed by Counsel of
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`Record in this action, and who are not current employees of a Party, a competitor of a Party,
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`or of Non-Party QUALCOMM, and who, at the time of retention, are not anticipated to become
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`employees of: 1) a Party, 2) a competitor of a Party, 3) a competitor of Non-Party
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`QUALCOMM, or 4) Non-Party QUALCOMM. This definition includes ESI vendors, and
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`professional jury or trial consultants retained in connection with this litigation to assist a Party,
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`Counsel of Record, or any Outside Consultant in their work. Professional vendors do not
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`include consultants who fall within the definition of Outside Consultant.
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`II.
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`RELATIONSHIP TO PROTECTIVE ORDER
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`16.
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`This Supplemental Protective Order shall not diminish any existing restriction
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`with respect to Designated QUALCOMM Material. The Parties and QUALCOMM
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`acknowledge and agree that this Supplemental Protective Order is a supplement to the
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`Protective Order entered in this action on July 2, 2019, in the United States District Court,
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`Eastern District of Texas, in this action. The Protective Order applies to all material designated
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`pursuant to this Supplemental Protective Order. To the extent that there is any confusion or
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`conflict between protective orders with respect to Designated QUALCOMM Material, then this
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`Supplemental Protective Order governs.
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`17.
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`In addition to the restrictions outlined in this Supplemental Protective Order,
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`
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 6 of 33 PageID #: 3911
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`material designated as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
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`CONFIDENTIAL SOURCE CODE” shall be subject to obligations with respect to
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`“CONFIDENTIAL -OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” materials
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`outlined in the Protective Order.
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`18.
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`In addition to the restrictions outlined in this Supplemental Protective Order,
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`material designated as “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” shall be
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`subject to obligations with respect to “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`material outlined in the Protective Order.
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`III.
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`SCOPE
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`19.
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`The protections conferred by this Supplemental Protective Order cover not only
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`Designated QUALCOMM Material (as defined above), but also any information copied or
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`extracted therefrom, as well as all copies, excerpts, summaries, or compilations thereof.
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`Nothing herein shall alter or change in any way the discovery provisions of the Federal Rules
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`of Civil Procedure or any applicable local rules or General Orders. Identification of any
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`individual pursuant to this Supplemental Protective Order does not make that individual
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`available for deposition, or any other form of discovery outside of the restrictions and
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`procedures of the Federal Rules of Civil Procedure or any applicable rules or General Orders.
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`20.
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`This Supplemental Protective Order shall not prevent a disclosure to which Non-
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`Party QUALCOMM consents in writing before that disclosure takes place.
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`21.
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`This Supplemental Protective Order shall apply
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`to all Designated
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`QUALCOMM Material that is produced or provided for inspection in this action, including all
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`Designated QUALCOMM Material that is in the possession, custody or control of
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`QUALCOMM or any Party in these actions, or that is otherwise relevant to these actions.
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 7 of 33 PageID #: 3912
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`IV. ACCESS TO DESIGNATED QUALCOMM MATERIAL
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`22.
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`Access to “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY”
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`Material: Unless otherwise ordered by the Court or permitted in writing by Non-Party
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`QUALCOMM, a Receiving Party may disclose any information, document or thing designated
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY” only to:
`
`a.
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`Persons who appear on the face of Designated QUALCOMM Material
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`as an author, addressee or recipient thereof, or persons who have been
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`designated under FRCP 30(b)(6) to provide testimony on behalf of a
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`b.
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`c.
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`Producing Party;
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`Counsel of Record;
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`Outside Consultants of the Receiving Party to whom disclosure is
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`reasonably necessary for this litigation, and who have, after the date of
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`this Supplemental Protective Order, signed the “Acknowledgement And
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`Agreement To Be Bound By Supplemental Protective Order Governing
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`Confidential Information of Non-Party Qualcomm In This Case”
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`attached
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`hereto as Exhibit A, and the “Certification Of Consultant Re
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`Supplemental Protective Order Governing Confidential Information of
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`Non-Party Qualcomm In This Case,” attached hereto as Exhibit B;
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`d.
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`Any designated arbitrator or mediator who is assigned to hear this
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`matter, or who has been selected by the Parties, and his or her staff; who
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`have, after the date of this Supplemental Protective Order, signed the
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`“Acknowledgement And Agreement To Be Bound By Supplemental
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 8 of 33 PageID #: 3913
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`Protective Order Governing Confidential Information of Non-Party
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`Qualcomm In This Case” attached hereto as Exhibit A, and the
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`“Certification Of Consultant Re Supplemental Protective Order
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`Governing Confidential Information of Non-Party Qualcomm In This
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`Case,” attached hereto as Exhibit B, as well as any arbitrator’s or
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`mediator’s staff who have also signed Exhibits A and B;
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`e.
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`Court reporters and videographers employed in connection with this
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`action; and
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`f.
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`Professional Vendors to whom disclosure is reasonably necessary for
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`this action, and a
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`representative of which has signed
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`the
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`“Acknowledgement And Agreement To Be Bound By Supplemental
`
`Protective Order Governing Confidential Information of Non-Party
`
`Qualcomm In This Case” attached hereto as Exhibit A, subject to the
`
`following exception: Designated QUALCOMM Material shall not be
`
`disclosed to mock jurors without Non-Party QUALCOMM’s express
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`written consent;
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`g.
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`The Court, its personnel and the jury.
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`23.
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`Access to “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
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`CONFIDENTIAL SOURCE CODE” Material: Unless otherwise ordered by the Court or
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`permitted in writing by Non-Party QUALCOMM, a Receiving Party may disclose any
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`information, document, or thing designated “QUALCOMM – OUTSIDE ATTORNEYS’
`
`EYES ONLY – CONFIDENTIAL SOURCE CODE” only to:
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`a.
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`Persons who appear on the face of Designated QUALCOMM Material
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 9 of 33 PageID #: 3914
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`b.
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`c.
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`as an author, addressee or recipient thereof, or persons who have been
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`designated under FRCP 30(b)(6) to provide testimony of behalf of a
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`Producing Party or Qualcomm regarding the same;
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`Counsel of Record;
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`Outside Consultants of the Receiving Party to whom disclosure is
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`reasonably necessary for this litigation, and who have, after the date of
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`this Supplemental Protective Order, signed the “Acknowledgement And
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`Agreement To Be Bound By Supplemental Protective Order Governing
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`Confidential Information of Non-Party Qualcomm In This Case”
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`attached hereto as Exhibit A, and the “Certification Of Consultant Re
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`Supplemental Protective Order Governing Confidential Information of
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`Non-Party Qualcomm In This Case,” attached hereto as Exhibit B;
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`d.
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`Any designated arbitrator or mediator who is assigned to hear this
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`matter, or who has been selected by the Parties, and his or her staff; who
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`have, after the date of this Supplemental Protective Order, signed the
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`“Acknowledgement And Agreement To Be Bound By Supplemental
`
`Protective Order Governing Confidential Information of Non-Party
`
`Qualcomm In This Case” attached hereto as Exhibit A, and the
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`“Certification Of Consultant Re Supplemental Protective Order
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`Governing Confidential Information of Non-Party Qualcomm In This
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`Case,” attached hereto as Exhibit B, as well as any arbitrator’s or
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`mediator’s staff who have also signed Exhibits A and B, provided,
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`however, that before such disclosure, QUALCOMM is provided notice
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 10 of 33 PageID #: 3915
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`including: (a) the individual’s name and business title; (b) business
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`address; (c) business or professions; and (d) the individual’s CV.
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`QUALCOMM shall have five (5) business days from receipt of the
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`notice to object in writing to such disclosure (plus three (3) extra days if
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`notice is given other than by hand delivery, e-mail delivery or facsimile
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`transmission). After the expiration of the 5 business days (plus 3 days, if
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`appropriate) period,
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`if no objection has been asserted,
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`then
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`“QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
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`CONFIDENTIAL SOURCE CODE” materials may be disclosed
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`pursuant to the terms of this Supplemental Protective Order;
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`e.
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`Court reporters and videographers employed in connection with this
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`action, subject to the provisions provided in subparagraph 32(g) herein;
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`f.
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`Professional Vendors to whom disclosure is reasonably necessary for
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`this action, and a
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`representative of which has signed
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`the
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`“Acknowledgement And Agreement To Be Bound By Supplemental
`
`Protective Order Governing Confidential Information of Non-Party
`
`Qualcomm In This Case” attached hereto as Exhibit A, subject to the
`
`following exception: Designated QUALCOMM Material shall not be
`
`disclosed to mock jurors without Non-
`
`Party QUALCOMM’s express written consent; and
`
`g.
`
`The Court, its personnel and the jury.
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`24.
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`Notwithstanding the Protective Order, unless otherwise ordered or agreed in
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`writing by Non-Party QUALCOMM, Designated QUALCOMM Material may not be disclosed
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`
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 11 of 33 PageID #: 3916
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`to employees of a Receiving Party, including its in-house attorneys and support staff.
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`25.
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`Notwithstanding the Protective Order, unless otherwise ordered or agreed in
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`writing by Non-Party QUALCOMM, Designated QUALCOMM Material may not be disclosed
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`to mock jurors.
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`26.
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`The Parties acknowledge that Designated QUALCOMM Material also may be
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`subject to the US government export control and economic sanctions laws (“Export Controlled
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`Information”), including the Export Administration Regulations (“EAR”, 15 CFR 730 et seq.,
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`http://www.bis.doc.gov/ ) administered by the Department of Commerce, Bureau of Industry
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`and Security, and the Foreign Asset Control Regulations (31 CFR 500 et seq.,
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`http://www.treas.gov/offices/enforcement/ofac/) administered by the Department of Treasury,
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`Office of Foreign Assets Control (“OFAC”). Receiving Parties may not directly or indirectly
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`export, re-export, transfer or release (collectively, “Export”) any Designated QUALCOMM
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`Material to any destination, person, entity or end use prohibited or restricted under US law
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`without prior US government authorization to the extent required by regulation. The US
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`government maintains embargoes and sanctions against the countries listed in Country Groups
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`E:1/2 of the EAR (Supplement 1 to part 740) Export Controlled Information disclosed in this
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`action will be used only for the purposes of this action. Outside Counsel or other individuals
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`authorized to receive Export Controlled Information will not disclose, export, or transfer, in
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`any manner, Export Controlled Information to any foreign person except as permitted by U.S.
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`law, and will not transport any such document outside of U.S. territory, without prior written
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`approval of the Bureau of Industry and Security or other appropriate U.S. government
`
`department or agency, except as permitted by U.S. law.
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`27.
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`Receiving Party may host “QUALCOMM – OUTSIDE ATTORNEYS’ EYES
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 12 of 33 PageID #: 3917
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`ONLY” Material only on either 1) any system inside the firewall of a law firm representing the
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`Receiving Party, or 2) inside the system of a professional ESI Vendor retained by Counsel of
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`Record of the Receiving Party. “QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY”
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`Material also cannot be sent or transmitted to any person, location, or vendor outside of the United
`
`States except to Counsel of Record and Outside Consultants designated pursuant to
`
`subparagraphs 22(c) and 23(c) above. To the extent that any “QUALCOMM – OUTSIDE
`
`ATTORNEYS’ EYES ONLY” Material is transmitted from or to authorized recipients outside
`
`of the Receiving Party’s Outside Counsel’s office, or outside of the ESI Vendor’s system, the
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`transmission shall be by hand (and encrypted if in electronic format), by a secure transport carrier
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`(e.g., Federal Express), or by secure electronic means, such as email using an encrypted password
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`protected container (other than Trucrypt), or download via secure FTP. “QUALCOMM –
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`OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE” may not be
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`transmitted by electronic means; however, this should not be understood to prohibit the electronic
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`transmittal of testifying experts’ expert reports or drafts, court filings, and trial demonstratives,
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`thereof that may refer to QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
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`CONFIDENTIAL SOURCE CODE, subject to the limitations set forth in Section 32(g) herein,
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`and as long as such electronic transmittal is by secure electronic means, such as email using an
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`encrypted password protected container (other than Trucrypt), or download via secure FTP. Court
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`filings containing QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY and QUALCOMM
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`– OUTSIDE ATTORNEYS’ EYES ONLY – CONFIDENTIAL SOURCE CODE may be
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`submitted via the Court’s ECF filing system subject to the limitations set forth in Section 32(g)
`
`herein.
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`
`
`28.
`
`Each person to whom Designated QUALCOMM Material may be disclosed,
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 13 of 33 PageID #: 3918
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`and who is required to sign the “Acknowledgement And Agreement To Be Bound By
`
`Supplemental Protective Order Governing Confidential Information of Non-Party Qualcomm
`
`In This Case” attached hereto as Exhibit A and, if applicable, the “Certification Of Consultant
`
`Re Supplemental Protective Order Governing Confidential Information of Non-Party
`
`Qualcomm In This Case,” attached hereto as Exhibit B, shall do so, prior to the time such
`
`Designated QUALCOMM Material is disclosed to him or her. Counsel for the Receiving Party
`
`who makes any disclosure of Designated QUALCOMM Material shall retain each original
`
`executed certificate and, upon written request, shall provide copies to counsel for Non-Party
`
`QUALCOMM at the termination of this action.
`
`29.
`
`Absent written permission from Non-Party QUALCOMM, persons not
`
`permitted access to Designated QUALCOMM Material under the terms of this Supplemental
`
`Protective Order shall not be present at depositions while Designated QUALCOMM Material
`
`is discussed or otherwise disclosed. Pre-trial and trial proceedings shall be conducted in a
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`manner, subject to the supervision of the Court, to protect Designated QUALCOMM Material
`
`from disclosure to persons not authorized to have access to such Designated QUALCOMM
`
`Material. Any Party intending to disclose or discuss Designated QUALCOMM Material at
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`pretrial or trial proceedings must give advance notice to the Producing Party to assure the
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`implementation of the terms of this Supplemental Protective Order.
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`V.
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`ACCESS BY OUTSIDE CONSULTANTS
`
`30.
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`Notice. If a Receiving Party wishes to disclose Designated QUALCOMM
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`Material to any Outside Consultant, Receiving Party must, prior to the Outside Consultant
`
`being granted access to any Designated QUALCOMM Material, provide notice to counsel for
`
`Non-Party QUALCOMM, which notice shall include: (a) the individual’s name and business
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`title; (b) country of citizenship; (c) business address; (d) business or profession; (e) the
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 14 of 33 PageID #: 3919
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`individual’s CV; (f) any previous or current relationship (personal or professional) with Non-
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`Party QUALCOMM or any of the Parties to this action; (g) a list of other cases in which the
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`individual has testified (at trial or deposition) within the last six years; (h) a list of all companies
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`with which the individual has consulted or by which the individual has been employed within
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`the last four years, the dates of the consultancy or employment, a brief description of the subject
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`matter of the consultancy or employment, and (i) copies of the “Acknowledgement and
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`Agreement To Be Bound By Supplemental Protective Order Governing Confidential
`
`Information of Non-Party Qualcomm In This Case,” attached as Exhibit A, and the
`
`“Certification Of Consultant Re Supplemental Protective Order Governing Confidential
`
`Information of Non-Party Qualcomm In This Case,” attached hereto as Exhibit B, that have
`
`both been signed by that Outside Consultant.
`
`31.
`
`Objections. With respect to Outside Consultants that have not been previously
`
`disclosed to Non-Party QUALCOMM, Non-Party QUALCOMM shall have five (5) business
`
`days, starting from the first business day following the date upon which Receiving Party
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`provides the notice and all information required by paragraph 30 to the Producing Party, to
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`object for good cause in writing to such disclosure (plus three (3) extra days if notice is given in
`
`any manner other than by hand delivery, e-mail delivery or facsimile transmission). After the
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`expiration of the 5 business days (plus 3-days, if appropriate) period, if no objection for good
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`cause has been asserted by Non-Party QUALCOMM, then Designated QUALCOMM Material
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`may be disclosed to the Outside Consultant pursuant to the terms of this Supplemental
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`Protective Order. Any objection by Non-Party QUALCOMM must be made for good cause,
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`and must set forth in detail the grounds on which it is based. Should Receiving Party disagree
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`with the basis for the objection(s), Receiving Party must first attempt to resolve the objection(s)
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`informally with Non-Party QUALCOMM. If the informal efforts do not resolve the dispute
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`within five (5) business days from the date upon which Receiving Party was first notified of
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`any objection for good cause by Non-Party QUALCOMM, Receiving Party may file a motion
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`requesting that the objection(s) be quashed after that five (5) day period has passed. Non-Party
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`
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`Page 14 of 33
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 15 of 33 PageID #: 3920
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`Qualcomm shall have the burden of proof by a preponderance of the evidence on the issue of
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`the sufficiency of the objection(s). Pending a ruling by the Court upon any such objection(s),
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`or the subsequent resolution of the objection for good cause by Receiving Party and Non-Party
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`QUALCOMM, the discovery material shall not be disclosed to the person objected to by Non-
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`Party QUALCOMM.
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`VI.
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`PRODUCTION OF QUALCOMM – OUTSIDE ATTORNEYS’ EYES ONLY –
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`CONFIDENTIAL SOURCE CODE MATERIAL
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`32.
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`Non-Party QUALCOMM’s Source Code and Chip-Level Schematics:
`
`a.
`
`To the extent that a Producing Party makes Non-Party QUALCOMM’s
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`Source Code or Chip-Level Schematics available for
`
` inspection:
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`(i) The Producing Party shall make all relevant and properly
`
`requested Non-Party QUALCOMM Source Code
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`available
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`electronically and in text searchable form (1) if produced by Non-Party
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`QUALCOMM, in a separate room at a secure facility selected by Non-
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`Party QUALCOMM or
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`(2) if produced by Defendants, at the offices of Counsel of Record for
`
`the producing Defendant or at a secure facility approved by
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`QUALCOMM. The Producing Party shall make the Source Code
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`available for inspection on a stand-alone, non-networked personal
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`computer running a reasonably current version of the Microsoft
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`Windows operating system (“Source Code Computer”). Alternatively,
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`solely at the option of the Producing Party, the Producing Party may
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`make such source code available on a Source Code Computer that is
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`
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`Page 15 of 33
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 16 of 33 PageID #: 3921
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`networked,
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`in a configuration deemed secure by Non-Party
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`QUALCOMM. The Source Code Computer shall be configured to
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`permit review of the Source Code through a password-protected account
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`having read-only access. To facilitate review of the Source Code at the
`
`secure facility, the Receiving Party may use appropriate tool software
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`on the Source Code Computer, which shall be installed by the Producing
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`Party, including at least one text editor like Visual Slick Edit that is
`
`capable of printing out Source Code with page and/or line numbers, a
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`source code comparison tool like Winmerge, and at least one multi-text
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`file text search tool such as “grep.” Should it be necessary, other
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`mutually agreed upon tools may be used. Licensed copies of other
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`mutually agreed upon tool software shall be installed on the Source Code
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`Computer by the Producing Party and paid for by the Receiving Party.
`
`(ii) The Producing Party shall make all relevant and properly requested
`
`Chip-Level Schematics available for inspection electronically on the
`
`Source Code Computer in a secure room at a secure facility selected by
`
`Non-Party QUALCOMM. The Producing Party shall ensure that the
`
`Source Code Computer includes software sufficient to allow a user to
`
`view such electronic Chip-Level Schematics.
`
`b.
`
`The Producing Party shall provide access to the Source Code Computer
`
`during the normal operating hours of the secure facility.
`
`c.
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`The Source Code Computer shall be equipped to allow printing of the
`
`Source Code and Chip-Level Schematics made available for inspection
`
`
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`Page 16 of 33
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 17 of 33 PageID #: 3922
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`by the Producing Party. Copies of Source Code and Chip-Level
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`Schematics shall only be made on watermarked pre-Bates numbered
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`paper, which shall be provided by the Producing Party. Under no
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`circumstances are original printouts of the Source Code or Chip-Level
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`Schematics to be made except for directly onto the watermarked and
`
`numbered sides of the paper provided by the Producing Party.
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`Additionally, the Receiving Party may not print any continuous block of
`
`source code that results in more than 50 consecutive printed pages,
`
`except that Authorized Reviewer(s) may request the printing of a
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`continuous block of more than 50 pages, which request shall not be
`
`unreasonably denied by the Producing Party. Counsel for the Producing
`
`Party will keep the original printouts, and shall provide copies of such
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`original printouts to counsel for the Receiving Party within seven (7)
`
`days of (1) any request by the Receiving Party, or (2) otherwise being
`
`notified that such original printouts have been made or designated.
`
`Counsel of Record for the Receiving Party may request up to 10 copies
`
`of each original printout of Source Code or Chip-Level Schematics. No
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`more than 10% or 500 pages of the total Source Code (not including
`
`copies of original printouts) whichever is greater, for any software
`
`release (or in the case of hardware Source Code, for any hardware
`
`product), no more than 500 pages of Chip-Level Schematics, and no
`
`continuous blocks of Source Code or Chip-Level Schematics that exceed
`
`50 pages, may be in printed form at any one time, without the express
`
`
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`Page 17 of 33
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`Case 5:19-cv-00036-RWS Document 77 Filed 09/10/19 Page 18 of 33 PageID #: 3923
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`written consent of Non-Party QUALCOMM, which shall not be
`
`unreasonably denied. All printed Source Code and Chip- Level
`
`Schematics shall be logged by Receiving Party’s Counsel of Record
`
`and/or other Personnel Retained by a Receiving Party in this action as
`
`noted in subparagraph 32 (i) below. No additional electronic copies of
`
`the Source Code or Chip-Level Schematics shall be provided by the
`
`Producing Party. Hard copies of the Source Code or Chip-Level
`
`Schematics also may not be converted into an electronic document, and
`
`may not be scanned using optical character recognition (“OCR”)
`
`technology. Only printouts of Source Code and Chip-Level Schematics
`
`may be made, and such printouts must include (1) directory path
`
`information and filenames from which the Source Code and Chip-Level
`
`Schematics came and (2) line numbers. The Producing Party may refuse
`
`to provide copies of Source Code and Chip- Level Schematics printouts
`
`that fail to comply with this section.
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`d.
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`Authorized Reviewer(s) in this action shall not print Source Code or
`
`Chip- Level Schematics which have not been reviewed on the Source
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`Code Computer, or in order to review the Source Code or Chip-Level
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`Schematics elsewhere in the first instance, i.e., as an alternative