Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`RAVGEN, INC.,
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`Civil Action No. 1:20-cv-00822-ADA
`
`Plaintiff,
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`JURY TRIAL DEMANDED
`
`v.
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`PERKINELMER, INC., PERKINELMER
`GENETICS, INC., BIOO SCIENTIFIC
`CORPORATION,
`
`Defendants.
`
`PROTECTIVE ORDER
`WHEREAS, Plaintiff Ravgen, Inc. (“Plaintiff” or “Ravgen”) and Defendants PerkinElmer,
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`Inc., PerkinElmer Genetics, Inc., and Bioo Scientific Corporation (collectively “Defendants” or
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`“PerkinElmer”), hereafter referred to as “the Parties,” believe that certain information that is or will
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`be encompassed by discovery demands by the Parties involves the production or disclosure of
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`trade secrets, confidential business information, or other proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
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`Federal Rule of Civil Procedure 26(c):
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`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
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`1.
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`Each Party may designate as confidential for protection under this Order, in whole or in part,
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`any document, information or material that constitutes or includes, in whole or in part,
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`confidential or proprietary information or trade secrets of the Party or a third party to whom
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`the Party reasonably believes it owes an obligation of confidentiality with respect to such
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`document, information or material (“Protected Material”). Protected Material shall be
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 2 of 20
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`designated by the Party producing it by affixing a legend or stamp on such document,
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`information
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`or material
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`as
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`follows:
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`“CONFIDENTIAL,”
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`“RESTRICTED
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`– ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE
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`CODE.” The words “CONFIDENTIAL,” “RESTRICTED – ATTORNEYS’ EYES
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`ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE” shall be placed clearly
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`on each page of the Protected Material (except deposition and hearing transcripts) for
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`which such protection is sought. For deposition and hearing transcripts, the words
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`“CONFIDENTIAL,”
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`“RESTRICTED – ATTORNEYS’ EYES ONLY,”
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`or
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`“RESTRICTED CONFIDENTIAL SOURCE CODE” shall be placed on the cover page
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`of the transcript (if not already present on the cover page of the transcript when received
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`from the court reporter) by each attorney receiving a copy of the transcript after that
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`attorney receives notice of the designation of some or all of that transcript as
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`“CONFIDENTIAL,”
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`“RESTRICTED
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`– ATTORNEYS’ EYES ONLY,”
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`or
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`“RESTRICTED CONFIDENTIAL SOURCE CODE.”
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`2.
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`Any document produced under the Court’s Order (Dkt. 31) and Modified Order
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`(Dkt. 36) Governing Proceedings – Patent Case before issuance of this Order marked
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`“confidential” or with some other confidential designation shall receive the same treatment
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`as if designated “RESTRICTED - ATTORNEYS’ EYES ONLY” under this Order, unless
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`and until such document is redesignated to have a different classification under this Order.
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`3.
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`With respect to documents, information or material designated “CONFIDENTIAL,”
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`“RESTRICTED – ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL
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`SOURCE CODE” (“DESIGNATED MATERIAL”),1 subject to the provisions herein and
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`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
`class of materials designated as “CONFIDENTIAL,” “RESTRICTED – ATTORNEYS’ EYES
`ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE,” both individually and
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`2
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 3 of 20
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`unless otherwise stated, this Order governs, without limitation: (a) all documents,
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`electronically stored information, and/or things as defined by the Federal Rules of Civil
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`Procedure; (b) all pretrial, hearing or deposition testimony, or documents marked as
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`exhibits or for identification in depositions and hearings; (c) pretrial pleadings, exhibits
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`to pleadings and other court filings; (d) affidavits; and (e) stipulations. All copies,
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`reproductions, extracts, digests and complete or partial summaries comprising
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`confidential information from any DESIGNATED MATERIALS shall also be
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`considered DESIGNATED MATERIAL and treated as such under this Order.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL,” “RESTRICTED -
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`ATTORNEYS’ EYES ONLY,” or “RESTRICTED CONFIDENTIAL SOURCE CODE”)
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`may be made at any time. Inadvertent or unintentional production of documents,
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`information or material that has not been designated as DESIGNATED MATERIAL shall
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`not be deemed a waiver in whole or in part of a claim for confidential treatment. Any party
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`that inadvertently or unintentionally produces Protected Material without designating it as
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`DESIGNATED MATERIAL may request destruction of that Protected Material by notifying
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`the recipient(s) in writing, as soon as reasonably possible after the producing Party becomes
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`aware of the inadvertent or unintentional disclosure, and providing replacement Protected
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`Material that is properly designated. The recipient(s) shall then destroy all copies of the
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`inadvertently or unintentionally produced Protected Materials and any documents,
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`information or material derived from or based thereon.
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`5.
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`“CONFIDENTIAL” documents, information and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating Party,
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`collectively.
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 4 of 20
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`upon order of the Court, or as set forth in Paragraph 12 herein:
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`(a)
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`(b)
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`(c)
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`(d)
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`(e)
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`(f)
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`outside counsel of record in this Action for the Parties;
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`employees of outside counsel of record assigned to and reasonably necessary to
`assist such counsel in the litigation of this Action;
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`in-house counsel for the Parties who either have responsibility for making decisions
`dealing directly with the litigation of this Action, or who are assisting outside
`counsel in the litigation of this Action and who have completed the Undertaking
`attached as Appendix A hereto and the same is served upon the Parties;
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`up to and including three (3) designated representatives of each of the Parties to the
`extent reasonably necessary for the litigation of this Action, provided that the Party
`seeking to disclose Protected Materials to a designated representative first must
`make a written request to the designating Party that (1) sets forth the full name of
`the designated representative and the city and state of his or her residence; and (2)
`attaches an executed copy of Appendix A. The written request must be made at
`least seven (7) days before access to the Protected Material is to be given to that
`designated representative. During this seven (7) days, the producing Party may
`object to and notify the receiving Party in writing that it objects to disclosure of
`Protected Material to the designated representative. The Parties agree to promptly
`confer and use good faith to resolve any such objection. If the Parties are unable to
`resolve any objection, the objecting Party may notify the Court of the dispute within
`fifteen (15) days of the notice, or within such other time as the Parties may agree. The
`objecting Party shall have the burden of proving the need for a protective order with
`respect to the proposed disclosure. No disclosure shall occur until all such
`objections are resolved by agreement or Court order;
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`outside consultants or experts (i.e., not existing employees of a Party or of an
`affiliate of a Party) retained for the purpose of this litigation, provided that: (1) such
`consultants or experts are not presently employed by the Parties hereto for purposes
`other than this Action; and (2) the consultants or experts execute Appendix A.
`Employees of a consultant’s or expert’s firm assisting in the consultant’s or expert’s
`analysis are not required to be disclosed in accordance with the procedures of this
`Paragraph and may access Protected Material designated CONFIDENTIAL upon
`access being provided to the consultant or expert;
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`independent litigation support services, including persons working for or as court
`reporters or videographers, graphics or design services, jury or trial consulting
`services, and photocopy, document imaging, file hosting, and database services
`retained by counsel and reasonably necessary to assist counsel with the litigation
`of this Action; and
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`(g)
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`the Court and its personnel.
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`6.
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`A Party shall designate documents, information or material as “CONFIDENTIAL” only
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`upon a good faith belief that the documents, information or material contains confidential
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`or proprietary information or trade secrets of the Party or a third party to whom the Party
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`reasonably believes it owes an obligation of confidentiality with respect to such documents,
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`information or material.
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`7.
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`Documents, information or material produced pursuant to any discovery request in this
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`Action, including but not limited to Protected Material designated as DESIGNATED
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`MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not
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`be used for any other purpose. Any person or entity who obtains access to DESIGNATED
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`MATERIAL or the contents thereof pursuant to this Order shall not make any copies,
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`duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or any
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`portion thereof except as may be reasonably necessary in the litigation of this Action. Any
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`such copies, duplicates, extracts, summaries or descriptions shall be classified
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`DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
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`8.
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`To the extent a producing Party believes that certain Protected Material qualifying to be
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`designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
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`limitation, the producing Party may designate such Protected Material “RESTRICTED –
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`ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer
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`source code and/or live data (that is, data as it exists residing in a database or databases)
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`(“Source Code Material”), the producing Party may designate such Protected Material as
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`“RESTRICTED CONFIDENTIAL SOURCE CODE.” A document that merely quotes or
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`cites filenames, line numbers, directory names, module names, class names, parameter
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`names, variable names, function names, method names, and/or procedure names (e.g., for
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 6 of 20
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`notetaking or identification purposes) without reproducing any lines of source code
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`should not be designated “RESTRICTED CONFIDENTIAL SOURCE CODE” but
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`may be designated “R ESTRICTED – ATTORNEYS’ EYES ONLY.”
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`9.
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`For Protected Material designated RESTRICTED – ATTORNEYS’ EYES ONLY, access
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`to, and disclosure of, such Protected Material shall be limited to individuals listed in
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`Paragraphs 5(a-b) and (d-g), provided that in addition to the procedures required for
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`Paragraph 5(e) above, outside consultants or experts (i.e., not existing employees of a Party
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`or of an affiliate of a Party) retained for the purpose of this litigation must provide an
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`executed copy of Appendix A to the producing Party and the consultants or experts must
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`provide the producing Party a copy of the consultants’ or experts’ current curriculum vitae.
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`The executed copy of Appendix A and current curriculum vitae must be provided at least
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`seven (7) days before access to the Protected Material designated RESTRICTED –
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`ATTORNEYS’ EYES ONLY is to be given to that consultant or expert. During this seven
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`(7) days, the producing Party may object to and notify the receiving Party in writing that it
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`objects to disclosure of Protected Material designated RESTRICTED – ATTORNEYS’
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`EYES ONLY to the consultant or expert. The Parties agree to promptly confer and use
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`good faith to resolve any such objection. If the Parties are unable to resolve any objection,
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`the objecting Party may notify the Court of the dispute within fifteen (15) days of the notice,
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`or within such other time as the Parties may agree. The objecting Party shall have the burden
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`of proving the need for a protective order with respect to the proposed disclosure. No
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`disclosure shall occur until all such objections are resolved by agreement or Court order.
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`Employees of a consultant’s or expert’s firm assisting in the consultant’s or expert’s
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`analysis are not required to be disclosed in accordance with the procedures of this
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 7 of 20
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`Paragraph and may access Protected Material designated RESTRICTED – ATTORNEYS’
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`EYES ONLY upon access being provided to the consultant or expert;
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`10.
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`For Protected Material designated RESTRICTED CONFIDENTIAL SOURCE CODE,
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`access to, and disclosure of, such Protected Material shall be limited to individuals listed
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`in Paragraphs 5(a-b) and (e-g), provided that in addition to the procedures required for
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`Paragraph 5(e) above, outside consultants or experts (i.e., not existing employees of a Party
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`or of an affiliate of a Party) retained for the purpose of this litigation must provide an
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`executed copy of Appendix A to the producing Party and the consultants or experts must
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`provide the producing Party a copy of the consultants’ or experts’ current curriculum vitae.
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`The executed copy of Appendix A and current curriculum vitae must be provided at least
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`seven (7) days before access to the Protected Material designated RESTRICTED
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`CONFIDENTIAL SOURCE CODE is to be given to that consultant or expert. During this
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`seven (7) days, the producing Party may object to and notify the receiving Party in writing
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`that
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`it objects
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`to disclosure of Protected Material designated RESTRICTED
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`CONFIDENTIAL SOURCE CODE to the consultant or expert. The Parties agree to
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`promptly confer and use good faith to resolve any such objection. If the Parties are unable
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`to resolve any objection, the objecting Party may notify the Court of the dispute within
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`fifteen (15) days of the notice, or within such other time as the Parties may agree. The
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`objecting Party shall have the burden of proving the need for a protective order with respect
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`to the proposed disclosure. No disclosure shall occur until all such objections are resolved
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`by agreement or Court order. Employees of a consultant’s or expert’s firm assisting in the
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`consultant’s or expert’s analysis are not required to be disclosed in accordance with the
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`procedures of this Paragraph and may access Protected Material designated RESTRICTED
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`CONFIDENTIAL SOURCE CODE upon access being provided to the consultant or
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`expert. The
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`following additional
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`restrictions apply
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`for Protected Material
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`designated RESTRICTED CONFIDENTIAL SOURCE CODE:
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`(a)
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`(b)
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`(c)
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`(d)
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`Access to a Party’s Source Code Material shall be provided on a “stand-alone”
`computer. The stand-alone computer may be connected to (i) a printer, or (ii) a
`device capable of temporarily storing electronic copies solely for the limited
`purposes permitted pursuant to this Paragraph below. Additionally, except as
`provided below, the stand-alone computer may only be located at the offices of the
`producing Party’s outside counsel or another location mutually agreeable to the
`Parties;
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`The receiving Party shall make reasonable efforts to restrict its requests for such
`access to the stand-alone computer to normal business hours, which for purposes of
`this Paragraph shall be 9:00 a.m. through 6:00 p.m. local time, Monday through
`Friday (excluding holidays). However, upon reasonable notice from the receiving
`party, the producing Party shall make reasonable efforts to accommodate the
`receiving Party’s request for access to the stand-alone computer outside of normal
`business hours. The Party requesting to inspect source code shall provide notice to
`the producing Party of its request 10 business days in advance of the first requested
`inspection and three business days in advance of each subsequent requested
`inspection, and identify the individual(s) who will be reviewing the source code,
`as well as the anticipated hours of the review. The Parties agree to cooperate in
`good faith such that maintaining the producing Party’s Source Code Material at the
`offices of its outside counsel shall not unreasonably hinder the receiving Party’s
`ability to efficiently and effectively conduct the prosecution or defense of this
`Action. The producing Party will make its source code available for inspection
`until the close of fact discovery in this matter. After the close of fact discovery, the
`receiving Party may make reasonable requests to review Source Code Material,
`and the Parties will meet and confer regarding the request. The following requests
`shall be presumed reasonable and will be promptly complied with by the producing
`Party absent a showing of good cause: a request to review source code prior to an
`expert’s deposition or trial testimony; and/or a request to review source code in
`order to prepare a motion or a response to a motion;
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`The producing Party shall provide the receiving Party with information explaining
`how to start, log on to, and operate the stand-alone computer in order to access the
`produced Source Code Material on the stand-alone computer;
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`The producing Party will produce Source Code Material in computer searchable
`format on the stand-alone computer as described above. If available, such Source
`Code Material is to be provided in native format with the original path names (e.g.,
`TAR files with the directory tree pertinent to the produced files). Native format
`means electronic files containing native text not produced through any process
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 9 of 20
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`(e)
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`(f)
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`(g)
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`(h)
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`(i)
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`involving optical character recognition;
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`The receiving Party’s outside counsel and/or experts or consultants may request
`that commercially available licensed software tools for reviewing and searching
`Source Code Material be installed on the Source Code Computer and/or client. The
`receiving Party must provide the producing Party with a CD/DVD/USB drive
`containing such software tool(s) or a link for downloading such software tool(s),
`and any necessary licenses, at least ten (10) days in advance of the date upon which
`the receiving Party wishes to have the additional software tools available for use
`on the Source Code Computer and/or client. The Parties agree to install the
`following software tools without objection, provided they are compatible with the
`Source Code Computer’s operating system: WinRar, 7-Zip, Notepad++,
`PowerGrep, QuickView+, Textpad;
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`Access to Protected Material designated RESTRICTED CONFIDENTIAL
`SOURCE CODE shall be limited to outside counsel and up to three (3) outside
`consultants or experts2 (i.e., not existing employees of a Party or of an affiliate of
`a Party) retained for the purpose of this litigation and approved to access such
`Protected Materials pursuant to Paragraph 4(e) above. A receiving Party may
`include excerpts of Source Code Material in a pleading, exhibit, expert report,
`discovery document, deposition transcript, other Court document, provided that the
`Source Code Documents are appropriately marked under this Order, restricted to
`those who are entitled to have access to them as specified herein, and, if filed with
`the Court, filed under seal in accordance with the Court’s rules, procedures and
`orders;
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`To the extent portions of Source Code Material are quoted in a Source Code
`Document, either (1) the entire Source Code Document will be stamped and treated
`as RESTRICTED CONFIDENTIAL SOURCE CODE or (2) those pages containing
`quoted Source Code Material will be separately stamped and treated as
`RESTRICTED CONFIDENTIAL SOURCE CODE;
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`Except as set forth in Paragraph 10(l) below, no electronic copies of Source Code
`Material shall be made without prior written consent of the producing Party, except
`as necessary to create documents which, pursuant to the Court’s rules, procedures
`and order, must be filed or served electronically;
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`The receiving Party shall be permitted to make a reasonable number of printouts and
`photocopies of Source Code Material if such printouts and photocopies are (1)
`necessary for use as exhibits at trial; (2) necessary to prepare court filings,
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`2 For the purposes of this Paragraph, an outside consultant or expert is defined to include the
`outside consultant’s or expert’s direct reports and other support personnel, such that the disclosure
`to a consultant or expert who employs others within his or her firm to help in his or her analysis
`shall count as a disclosure to a single consultant or expert.
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 10 of 20
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`pleadings, or other papers (including a testifying expert’s expert report), or (3)
`necessary for deposition. All such printouts and photocopies shall be designated
`and clearly labeled “RESTRICTED CONFIDENTIAL SOURCE CODE,” and the
`receiving Party shall maintain a log of all such files that are printed or photocopied.
`Any printouts or photocopies of Source Code Material must be made on colored
`(i.e., non-white) paper. Printing less than 1000 pages of source code total, and no
`more than 50 consecutive pages of source code, shall be presumed reasonable.
`Requests in excess of this total are not permitted absent agreement of the producing
`Party, which shall not be unreasonably withheld, or an order from the Court. In the
`event of a dispute, the parties will meet and confer within three business days of
`the objection being raised. If the parties cannot resolve the dispute, the receiving
`Party will raise it with the Court. A party shall not argue in any substantive motion
`(e.g. Rule 50, Rule 56, F.R.Evid. 702) that relief should be granted because the
`receiving Party failed to print relevant source code;
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`Should such printouts or photocopies be transferred back to electronic media, such
`media shall be labeled “RESTRICTED CONFIDENTIAL SOURCE CODE” and
`shall continue to be treated as such;
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`If the receiving Party’s outside counsel, consultants, or experts obtain printouts or
`photocopies of Source Code Material, the receiving Party shall ensure that such
`outside counsel, consultants, or experts keep the printouts or photocopies in a
`secured locked area in the offices or home offices of such outside counsel,
`consultants, or experts. The receiving Party may also temporarily keep the printouts
`or photocopies at: (i) the Court for any proceedings(s) relating to the Source Code
`Material, for the dates associated with the proceeding(s); (ii) the sites where any
`deposition(s) relating to the Source Code Material are taken, for the dates
`associated with the deposition(s); and (iii) any intermediate location reasonably
`necessary to transport the printouts or photocopies (e.g., a hotel prior to a Court
`proceeding or deposition); and
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`A producing Party’s Source Code Material may only be transported by the receiving
`Party at the direction of a person authorized under Paragraph 4(a), (b), or (e) above
`to another person authorized under Paragraph 4(a), (b), or (e) above, on paper or
`removable electronic media (e.g., a DVD, CD-ROM, or flash memory “stick”) via
`hand carry, Federal Express or other similarly reliable courier. Source Code
`Material may not be transported or transmitted electronically over a network of
`any kind, including a LAN, an intranet, or the Internet. Source Code Material may
`only be transported electronically for the purpose of Court proceeding(s) or
`deposition(s) subject to the transport restrictions set forth herein. But, for those
`purposes only, the Source Code Materials may be loaded onto a stand-alone
`computer.
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`(j)
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`(k)
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`(l)
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`11.
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`Absent written consent from the producing Party, any attorney representing Ravgen or
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`PerkinElmer, whether in-house or outside counsel, and any person associated with any
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 11 of 20
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`Party permitted to receive Protected Material that is designated RESTRICTED
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`– ATTORNEYS’ EYES ONLY and/or RESTRICTED CONFIDENTIAL SOURCE
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`CODE (collectively “HIGHLY SENSITIVE MATERIAL”), who obtains, receives, has
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`access to, or otherwise learns, in whole or in part, the other Party’s HIGHLY
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`SENSITIVE MATERIAL of a technical nature under this Order shall not prepare,
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`prosecute, supervise, or assist in the preparation or prosecution of any patent application
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`pertaining to the field of invention of the patents-in-suit on behalf of the receiving Party
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`or its acquirer, successor, predecessor, or Affiliate3 during the pendency of this Action
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`and for two years after the final termination of this Action, including exhaustion of all
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`appeals. This provision does not prohibit the Parties’ counsel of record or experts in this
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`Action from participating in or representing that Party in reexamination proceedings,
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`Post-Grant Review proceedings, Inter Partes Review proceedings, or Covered
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`Business Method Review proceedings involving the patents-in-suit, provided they do
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`not rely upon or use, directly or indirectly, HIGHLY SENSITIVE MATERIAL of a
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`technical nature in those proceedings. To ensure compliance with the purpose of this
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`provision, each Party shall create an “Ethical Wall” between those persons with access
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`to HIGHLY SENSITIVE MATERIAL of a technical nature and any individuals who
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`supervise or assist in the preparation or prosecution of any patent application pertaining
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`to the field of invention of the patents-in-suit.
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`12.
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`Nothing in this Order shall require production of documents, information or other material
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`that a Party contends is protected from disclosure by the attorney-client privilege, the work
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`product doctrine, or other privilege, doctrine, or immunity. If documents, information or
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`3 For the purposes of this Paragraph, “Affiliate” shall mean any entity that is related by common
`ownership or common corporate control to a Party.
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 12 of 20
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`other material subject to a claim of attorney-client privilege, work product doctrine, or
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`other privilege, doctrine, or immunity is inadvertently or unintentionally produced,
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`such production shall in no way prejudice or otherwise constitute a waiver of, or
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`estoppel as to, any such privilege, doctrine, or immunity. The producing party may give
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`written notice to the receiving party that the document or information inadvertently
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`or unintentionally produced is privileged or otherwise protected. Within ten (10)
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`days of receipt of such written notice, the receiving party shall immediately comply
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`with Federal Rule of Civil Procedure 26(b)(5)(B) by returning or destroying the
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`original and all copies of the information, making its best efforts to destroy those
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`portions of summaries or notes pertaining to the information identified and taking
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`reasonable steps to retrieve the information if the party disclosed it before being
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`notified except, however, that a Party seeking to challenge the claim of privilege or
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`protection may retain a single copy of the disputed information solely for the purpose
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`of making that challenge. If the Court denies the challenge, the party making the
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`challenge has 10 days from receipt of the order denying the challenge to comply with
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`Federal Rule of Civil Procedure 26(b)(5)(B) by returning or destroying the copy of the
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`disputed information retained for the purpose of making the challenge. If a receiving
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`party wishes to challenge the claim of privilege or protection, no later than 20 days from
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`receiving the notice, it must initiate the dispute resolution process provided for in the
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`Court’s Modified Order Governing Proceedings to present the information, under
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`seal, to the Court for a determination of the claim. The receiving party shall not rely
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`upon the fact or circumstances of the production of the information in challenging
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`the claim of privilege or protection. No person or Party shall incur any liability hereunder
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`for any disclosure or filing of inadvertently disclosed documents when the
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 13 of 20
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`disclosure occurred before receipt of notice of the inadvertent disclosure.
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`13.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized
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`to have access thereto to any person who is not authorized for such access under this Order.
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`The Parties are hereby ORDERED to safeguard all such documents, information and
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`material to protect against disclosure to any unauthorized persons or entities.
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`14.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use any
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`DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
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`the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
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`access to the DESIGNATED MATERIAL by virtue of his or her employment with the
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`designating party; (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
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`or copy recipient of such information; (iii) although not identified as an author, addressee,
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`or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
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`business, seen such DESIGNATED MATERIAL; (iv) a current or former officer, director
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`or employee of the producing Party or a current or former officer, director or employee of
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`a company affiliated with the producing Party; (v) counsel for a Party, including outside
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`counsel and in-house counsel (subject to Paragraphs 4, 9, and 10 of this Order); (vi) an
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`independent contractor, consultant, and/or expert retained for the purpose of this
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`litigation; (vii) court reporters and videographers; (viii) the Court; or (ix) other persons
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`entitled hereunder to access to DESIGNATED MATERIAL. DESIGNATED MATERIAL
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`shall not be disclosed to any other persons unless prior authorization is obtained from
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`counsel representing the producing Party or from the Court.
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`15.
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`Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
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`deposition or hearing transcript, designate the deposition or hearing transcript or any portion
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 14 of 20
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`thereof as “CONFIDENTIAL,” “RESTRICTED – ATTORNEY’ EYES ONLY,” or
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`“RESTRICTED CONFIDENTIAL SOURCE CODE” pursuant to this Order. Access to the
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`deposition or hearing transcript so designated shall be limited in accordance with the
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`terms of this Order. Until expiration of the 30-day period, the entire deposition or
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`hearing transcript shall be treated as “RESTRICTED – ATTORNEYS’ EYES ONLY.”
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`After the expiration of that period, the transcript shall be treated only as actually
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`designated.
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`16.
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`Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal
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`pursuant to the procedures outlined in Local Rule CV-5.2 and shall remain under seal until
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`further order of the Court. The filing party shall be responsible for informing the Clerk of
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`the Court that the filing should be sealed and for placing the legend “FILED UNDER
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`SEAL PURSUANT TO PROTECTIVE ORDER” above the caption and conspicuously
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`on each page of the filing. Exhibits to a filing shall conform to the labeling requirements
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`set forth in this Order. If a pretrial pleading filed with the Court, or an exhibit thereto,
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`discloses or relies on confidential documents, information or material, such confidential
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`portions shall be redacted to the extent necessary and the pleading or exhibit filed publicly
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`with the Court.
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`17.
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`This Order applies to pretrial discovery. Nothing in this Order shall be deemed to prevent
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`the Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of
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`this Action, or from using any information contained in DESIGNATED MATERIAL at
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`the trial of this Action, subject to any pretrial order issued by this Court.
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`18.
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`At any stage of this Action, any party may object to a designation of Protected Material.
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`The party objecting to a confidentiality designation shall notify, in writing, counsel for the
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`producing party of the objected-to materials and the grounds for the objection. If the
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`Case 1:20-cv-00822-ADA Document 54 Filed 01/05/21 Page 15 of 20
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`Parties are unable to resolve their dispute on their own, they may seek the Court’s
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`involvement pursuant to the dispute resolution process provided for in the Court’s
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`Modified Order Governing Proceedings. The Protected M