Case 6:19-cv-00532-ADA Document 68 Filed 06/05/20 Page 1 of 28
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`UNILOC 2017 LLC,
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`Plaintiff,
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`v.
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`APPLE INC.,
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`
`
`
`
`
`Case No. 6:19-CV-00532-ADA
`
`
`Defendant.
`
`
`
`
`
`PROTECTIVE ORDER REGARDING THE DISCLOSURE AND USE OF DISCOVERY
`MATERIALS
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`Plaintiff, Uniloc 2017 LLC, (“Plaintiff”), and Defendant, Apple Inc. (“Defendant”),
`anticipate that documents, testimony, or information containing or reflecting confidential,
`proprietary, trade secret, and/or commercially sensitive information are likely to be disclosed
`or produced during the course of discovery, initial disclosures, and supplemental disclosures
`in this case and request that the Court enter this Order setting forth the conditions for treating,
`obtaining, and using such information.
`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good
`cause for the following Agreed Protective Order Regarding the Disclosure and Use of
`Discovery Materials (“Order” or “Protective Order”).
`PURPOSES AND LIMITATIONS
`1.
`(a)
`Protected Material designated under the terms of this Protective Order shall
`be used by a Receiving Party solely for this case, and shall not be used directly or indirectly for
`any other purpose whatsoever. Nothing in this Order shall be construed as authorizing Plaintiff to
`share any Protected Material with any defendant not named to the above-captioned case as of the
`date of execution of this Order.
`(b)
`The Parties acknowledge that this Order does not confer blanket protections
`on all disclosures during discovery, or in the course of making initial or supplemental disclosures
`under Rule 26(a). Designations under this Order shall be made with care and shall not be made
`absent a good faith belief that the designated material satisfies the criteria set forth below. If it
`comes to a Producing Party’s attention that designated material does not qualify for protection at
`all, or does not qualify for the level of protection initially asserted, the Producing Party must
`promptly notify all other Parties that it is withdrawing or changing the designation.
`DEFINITIONS
`2.
`(a)
`“Discovery Material” means all items or information, including from any
`non-party, regardless of the medium or manner generated, stored, or maintained (including, among
`other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated
`in connection with discovery or Rule 26(a) disclosures in this case.
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`(b)
`“Outside Counsel” means (i) outside counsel who appear on the pleadings
`as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is
`reasonably necessary to disclose the information for this litigation.
`(c)
`“In-house Counsel” means attorneys who are employees of a Party and are
`working on this litigation, and includes supporting personnel employed by those counsel, such as
`paralegals, but specifically excludes any inventor of a Patent-in-suit.
`(d)
`“Patent-in-suit” means U.S. Patent No. 6,467,088.
`(e)
`“Party” means any party to this case as of the date of execution of this Order,
`including all of its officers, directors, employees, consultants, retained experts, and Outside
`Counsel and their support staff.
`(f)
`“Producing Party” means any Party or non-party that discloses or produces
`any Discovery Material in this case.
`(g)
`“Protected Material” means any Discovery Material that is designated as
`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
`“HIGHLY CONFIDENTIAL – SOURCE CODE,” as provided for in this Order. Protected
`Material shall not include: (i) advertising materials that have been actually published or publicly
`disseminated; and (ii) materials that show on their face they have been disseminated to the public.
`(h)
`“Receiving Party” means any Party who receives Discovery Material from
`a Producing Party.
`(i)
`“Source Code” means computer code, scripts, assembly code, binaries,
`object code, source code listings and descriptions of source code, object code listings and
`descriptions of object code, netlists, Hardware Description Language (HDL) or Register Transfer
`Level (RTL) files that describe the hardware design of any ASIC or other chip, mask data design
`and fabrication computer files stored in a “GDS” or related file format, process-flow documents
`related to the fabrication of circuit boards, and other documents that provide the same definition
`or detailed description of the algorithms or structures of software or hardware designs.
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`COMPUTATION OF TIME
`3.
`The computation of any period of time prescribed or allowed by this Order shall be
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`governed by the provisions for computing time set forth in Federal Rule of Civil Procedure 6.
`SCOPE
`4.
`(a)
`The protections conferred by this Order cover not only Discovery Material
`governed by this Order as addressed herein, but also any information copied or extracted
`therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
`conversations, or presentations by Parties or their counsel in Court or in other settings that might
`reveal Protected Material.
`(b)
`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
`own disclosure or use of its own Protected Material for any purpose, and nothing in this Order
`shall preclude any Producing Party from showing its Protected Material to an individual who
`prepared the Protected Material.
`(c)
`Nothing in this Order shall be construed to prejudice any Party’s right to
`use any Protected Material in Court or in any Court filing with the written consent of the Producing
`Party or by order of the Court.
`(d)
`This Order is without prejudice to the right of any Party to seek further or
`additional protection of any Discovery Material or to modify this Order in any way, including,
`without limitation, an order that certain matter not be produced at all.
`DURATION
`5.
`
`Even after the termination of this case, the confidentiality obligations imposed by
`this Order shall remain in effect until a Producing Party agrees otherwise in writing or a Court
`order otherwise directs.
`ACCESS TO AND USE OF PROTECTED MATERIAL
`6.
`(a)
`Basic Principles. All Protected Material shall be used solely for this case
`or any related appellate proceeding, and not for any other purpose whatsoever, including without
`limitation any other litigation, patent prosecution or acquisition, patent reexamination, reissue,
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`inter partes review, covered business method review, or other post-grant review proceedings, or
`any business or competitive purpose or function. Protected Material shall not be distributed,
`disclosed or made available to anyone except as expressly provided in this Order.
`
`
`(b)
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`Patent Prosecution Bar. Absent the written consent of the Producing Party,
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`any person employed by, related to, or representing Plaintiff who is permitted to and in fact
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`receives any of Defendant’s materials designated “HIGHLY CONFIDENTIAL – ATTORNEY’S
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`EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” and directed to technical
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`information relevant to the case, but excluding financial data or non-technical business information
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`(collectively, “HIGHLY SENSITIVE TECHNICAL MATERIAL”), in accordance with this
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`Order, shall not, on behalf of Plaintiff or their acquirer, successor, predecessor, or other affiliate,
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`prepare, prosecute, or assist in the preparation or prosecution of any patent application relating to
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`the subject matter of the asserted patent (techniques for upgrading or reconfiguring software and/or
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`hardware components of electronic devices) before any foreign or domestic agency, including the
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`United States Patent and Trademark Office. 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 to HIGHLY
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`SENSITIVE TECHNICAL MATERIAL in accordance with this Order, and any individuals who,
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`on behalf of Plaintiff or their acquirer, successor, predecessor, or other affiliate, prepare, supervise,
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`or assist in the preparation or prosecution of any patent application relating to the accused
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`functionalities as enumerated above. These prohibitions shall not preclude Plaintiff’s litigation
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`counsel and any disclosed experts from participating in any inter partes review proceedings so
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`long as Plaintiff’s litigation counsel and any disclosed experts are not involved in considering any
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`claim amendments and does not provide input on any proposed claim amendments. The
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`prohibitions of this paragraph shall begin when the HIGHLY SENSITIVE TECHNICAL
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`MATERIALS are first received by the affected individual, and shall end one year after the
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`settlement and/or dismissal of the Producing Party Defendant from this action or the final non-
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`appealable termination of this action.
`
`(c)
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`Secure Storage, No Export. Protected Material must be stored and
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`maintained by a Receiving Party at a location in the United States and in a secure manner that
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`ensures that access is limited to the persons authorized under this Order. HIGHLY
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`CONFIDENTIAL – SOURCE CODE materials will remain in the United States. Protected
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`Material may not be released to any individual who resides outside the United States without the
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`Producing Party’s permission, which shall not be unreasonably withheld. Notwithstanding the
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`foregoing, the Parties agree to comply with any applicable United States Export Administration
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`Regulations. Any Outside Counsel for a Receiving Party with CONFIDENTIAL or HIGHLY
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`CONFIDENTIAL - ATTORNEYS’ EYES ONLY materials in his or her possession (or otherwise
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`accessible to such Outside Counsel) while traveling outside of the United States agrees to comply
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`with any applicable United States Export Administration Regulations.
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`(d)
`Legal Advice Based on Protected Material. Nothing in this Protective Order
`shall be construed to prevent counsel from advising their clients with respect to this case based in
`whole or in part upon Protected Materials, provided counsel does not disclose the Protected
`Material itself except as provided in this Order.
`(e)
`Limitations. Nothing in this Order shall restrict in any way a Producing
`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
`to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
`and/or provided by the Producing Party to the Receiving Party or a non-party without an
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`obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
`Producing Party; or (v) pursuant to order of the Court. However, if the accuracy of information is
`confirmed only through the review of Protected Material, then the information shall not be
`considered to be publicly known. For example, unsubstantiated media speculations or rumors that
`are later confirmed to be accurate through access to Protected Material are not “publicly known”
`information. Such information is explicitly included in the definition of “Protected Material” set
`forth in Paragraph 2(g) above.
`DESIGNATING PROTECTED MATERIAL
`7.
`(a)
`Available Designations. Any Producing Party may designate Discovery
`Material with any of the following designations, provided that it meets the requirements for such
`designations as provided for herein: “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL -
`ATTORNEYS’ EYES ONLY” or “HIGHLY CONFIDENTIAL - SOURCE CODE.”
`(b) Written Discovery and Documents and Tangible Things. Written
`discovery, documents (which include “electronically stored information,” as that phrase is used in
`Federal Rule of Civil Procedure 34), and tangible things that meet the requirements for the
`confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
`appropriate designation on every page of the written material prior to production. For digital files
`being produced, the Producing Party may mark each viewable page or image with the appropriate
`designation, and mark the medium, container, and/or communication in which the digital files were
`contained. In the event that original documents are produced for inspection, the original
`documents shall be presumed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`during the inspection and re-designated, as appropriate during the copying process.
`(c)
`Native Files. Where electronic files and documents are produced in native
`electronic format, such electronic files and documents shall be designated for protection under this
`Order by appending to the file names or designators information indicating whether the file
`contains “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY” or
`“HIGHLY CONFIDENTIAL - SOURCE CODE,” material, or the Producing Party shall use any
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`other reasonable method for so designating Protected Materials produced in electronic format.
`When electronic files or documents are printed for use at deposition, in a Court proceeding, or for
`provision in printed form to an expert or consultant pre-approved pursuant to Paragraph 12, the
`Party printing the electronic files or documents shall affix a legend to the printed document
`corresponding to the designation of the Designating Party and including the production number
`and designation associated with the native file. No one shall seek to use in this litigation a .tiff,
`.pdf, or other image format version of a document produced in native file format without first (1)
`providing a copy of the image format version to the Producing Party so that the Producing Party
`can review the image to ensure that no information has been altered, and (2) obtaining the consent
`of the Producing Party, which consent shall not be unreasonably withheld.
`(d)
`Depositions and Testimony. Parties or testifying persons or entities may
`designate depositions and other testimony with the appropriate designation by indicating on the
`record at the time the testimony is given or by sending written notice of which portions of the
`transcript of the testimony are so designated within thirty days of receipt of the transcript of the
`testimony. If no indication on the record is made, all information disclosed during a deposition
`shall be deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the time
`within which it may be appropriately designated as provided for herein has passed. Any Party that
`wishes to disclose the transcript, or information contained therein, may provide written notice of
`its intent to treat the transcript as non-confidential, after which time, any Party that wants to
`maintain any portion of the transcript as confidential must designate the confidential portions
`within seventeen days, absent written agreement by the parties for additional time, or else the
`transcript may be treated as non-confidential. Any Protected Material that is used in the taking of
`a deposition shall remain subject to the provisions of this Protective Order, along with the transcript
`pages of the deposition testimony dealing with such Protected Material. In such cases the court
`reporter shall be informed of this Protective Order and shall be required to operate in a manner
`consistent with this Protective Order. In the event the deposition is videotaped, the original and
`all copies of the videotape shall be marked by the video technician to indicate that the contents of
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`the videotape are subject to this Protective Order, substantially along the lines of “This videotape
`contains confidential testimony used in this case and is not to be viewed or the contents thereof
`to be displayed or revealed except pursuant to the terms of the operative Protective Order in
`this matter or pursuant to written stipulation of the parties.” Counsel for any Producing Party
`shall have the right to exclude from oral depositions, other than the deponent, deponent’s
`counsel and the reporter and videographer (if any), any person who is not authorized by this
`Protective Order to receive or access Protected Material based on the designation of such
`Protected Material. Such right of exclusion shall be applicable only during periods of
`examination or testimony regarding such Protected Material.
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
`8.
`(a)
`as
`A Producing Party may
`designate Discovery Material
`“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially
`sensitive information.
`(b)
`Unless otherwise ordered by the Court, Discovery Material designated as
`“CONFIDENTIAL” may be disclosed only to the following:
`(i)
`The Receiving Party’s Outside Counsel, such counsel’s immediate
`paralegals and staff, and any copying or clerical litigation support services working at the direction
`of such counsel, paralegals, and staff;
`(ii)
`Not more than three representatives of the Receiving Party who are
`officers or employees of the Receiving Party, who may be, but need not be, In-house Counsel for
`the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is
`reasonably necessary for this case, provided that: (a) each such person has agreed to be bound by
`the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved
`objections to such disclosure exist after proper notice has been given to all Parties as set forth
`in Paragraph 12 below;
`(iii) Any outside expert or consultant retained by the Receiving Party to
`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
`officer, director, board member, or employee of a Party or of an affiliate or competitor of a Party,
`nor anticipated at the time of retention to become an officer, director, board member, or employee
`of a Party or of an affiliate or competitor of a Party; (c) such expert or consultant accesses the
`materials in the United States only, and does not transport them to or access them from any foreign
`jurisdiction, except that, for example, an expert or consultant may transport Protected Material
`outside of the United States for the purpose of providing support to outside counsel of a party
`deposing employees of another party or a third party resident overseas; and to the extent an expert
`or consultant seeks to access Protected Materials outside the United States, the Receiving Party
`shall meet and confer with the Producing Party to obtain permission in advance for any such
`access. The parties agree that such access may not be unreasonably withheld; (d) no unresolved
`objections to such disclosure exist after proper notice has been given to all Parties as set forth in
`Paragraph 12 below. If an unresolved objection to such disclosures exists, the Parties agree to
`promptly confer and use good faith to resolve any such objection;
`(iv) Court reporters, stenographers, and videographers retained to record
`testimony taken in this action;
`(v)
`The Court, jury, and Court personnel;
`(vi) Graphics, translation, design, and/or trial consulting personnel,
`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
`Exhibit A;
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`(vii) Mock jurors retained by a trial consulting firm in connection with
`this litigation having first signed an undertaking or agreement agreeing not to publicly disclose
`Protected Material and to keep any information concerning Protected Material confidential to the
`same degree as required by this Protective Order;
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`(viii) Any mediator who is assigned to hear this matter, and his or her
`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
`Protective Order; and
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`(ix) Any other person with the prior written consent of the Producing
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`Party.
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`9.
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`AS
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`“HIGHLY
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`DESIGNATED
`MATERIAL
`DISCOVERY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`(a)
`A Producing Party may designate Discovery Material as “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it contains or reflects information that is
`extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that
`the disclosure of such Discovery Material is likely to cause economic harm or significant
`competitive disadvantage to the Producing Party. The Parties agree that the following information,
`if non-public, shall be presumed to merit the “HIGHLY CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” designation: trade secrets, pricing information, financial data, sales information,
`sales or marketing forecasts or plans, business plans, sales or marketing strategy, product
`development information, engineering documents, testing documents, employee information, and
`other non-public information of similar competitive and business sensitivity.
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`(b)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to
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`(i)
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`The Receiving Party’s Outside Counsel and such Outside Counsel’s
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`immediate paralegals and staff, and any copying or clerical litigation support services working at
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`the direction of such counsel, paralegals, and staff; and
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`(ii)
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`The individuals listed in paragraphs 8(b)(iii-ix).
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`10.
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`DISCOVERY MATERIAL DESIGNATED AS “HIGHLY CONFIDENTIAL
`- SOURCE CODE”
`(a)
`To the extent production of Source Code becomes necessary to the
`prosecution or defense of the case, a Producing Party may designate Source Code as “HIGHLY
`CONFIDENTIAL - SOURCE CODE” if it comprises or includes confidential, proprietary, and/or
`trade secret Source Code.
`(b)
`Nothing in this Order shall be construed as a representation or admission
`that Source Code is properly discoverable in this action, or to obligate any Party to produce any
`Source Code.
`
`(c)
`Unless otherwise ordered by the Court, Discovery Material designated as
`“HIGHLY CONFIDENTIAL - SOURCE CODE” shall be subject to the provisions set forth in
`Paragraph 11 below, and may be disclosed, subject to Paragraph 11 below, solely to:
`
`
`(i)
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`The Receiving Party’s Outside Counsel and such Outside Counsel’s
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`immediate paralegals and staff, and any copying or clerical litigation support services working at
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`the direction of such counsel, paralegals, and staff; and
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`(ii)
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`The individuals listed in paragraphs 8(b)(iii-vi and viii-ix).
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`11.
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`DISCLOSURE AND REVIEW OF SOURCE CODE
`(a)
`Any Source Code that is produced by Plaintiff shall be made available for
`inspection in electronic format at the Longview office of its Outside Counsel, DAVIS FIRM, or
`any other location mutually agreed by the Parties. Any Source Code that is produced by
`Defendant will be made available for inspection at the East Palo Alto, California office of its
`outside counsel, DLA Piper LLP (US). Source Code will be made available for inspection between
`the hours of 8:00 a.m. and 7:30 p.m. on business days (i.e., weekdays that are not Federal holidays).
`The Parties will be reasonable in accommodating reasonable requests to alter these hours so long
`as reasonable advanced notice, and in no event less than three business days’ notice, of any such
`reasonable requests is provided.
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`(b)
`The Receiving Party shall provide ten days’ notice for its initial review of
`any Source Code that it wishes to inspect. The Receiving Party shall provide two days’ notice
`prior to any additional inspections.
`(c)
`Source Code that is designated “HIGHLY CONFIDENTIAL – SOURCE
`CODE” shall be produced for inspection and review subject to the following provisions,
`unless otherwise agreed by the Producing Party:
`(i)
`All Source Code shall be made available by the Producing Party to
`the Receiving Party’s Outside Counsel and/or experts in a secure room on a secured computer
`without Internet access or network access to other computers and on which all access ports have
`been disabled, as necessary and appropriate to prevent and protect against any unauthorized
`copying, transmission, removal, or other transfer of any Source Code outside or away from the
`computer on which the Source Code is provided for inspection (the “Source Code Computer” in
`the “Source Code Review Room”). The Source Code Computer shall be password protected. The
`Producing Party shall produce Source Code in computer searchable format on the Source Code
`Computer and in the file format in which the Source Code is kept in the ordinary course of the
`Producing Party’s business. The Producing Party shall provide the Receiving Party with
`information explaining how to start, log on to, and operate the stand-alone computer(s) in order to
`access the produced Source Code.
`(ii)
`The Producing Party shall install tools that are sufficient for viewing
`and searching the code produced, on the platform produced, if such tools exist and are presently
`used in the ordinary course of the Producing Party’s business. The Producing Party shall include
`the review tool “UNDERSTAND” on the secured computer. The Receiving Party’s outside
`counsel and/or experts may request that additional commercially available software tools for
`viewing and searching Source Code be installed on the secured computer, provided, however, that
`(a) the Receiving Party possesses an appropriate license to such software tools, such approval shall
`not be unreasonably withheld; (b) the Producing Party approves such software tools; and (c) such
`software tools can execute on the secured computer and are reasonably necessary for the Receiving
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`Party to perform its review of the Source Code consistent with all of the protections herein. The
`Receiving Party must provide the Producing Party with a CD or DVD (or other appropriate
`medium) containing such licensed software tool(s) at least seven 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.
`(iii) No recordable media or recordable devices, including without
`limitation sound recorders, personal digital assistants (PDAs), cellular telephones, peripheral
`equipment, cameras, voice recorders, Dictaphones, telephone jacks, CDs, DVDs, or drives of any
`kind (e.g., USB memory sticks and portable hard drives), shall be permitted into the Source Code
`Review Room. No non-electronic devices capable of similar functionality shall be permitted in
`the Source Code Review Room.
`(iv) Non-Networked Computer for Note-Taking Purposes Only: The
`Receiving Party’s Outside Counsel and/or experts shall be entitled to take notes relating to the
`Source Code but may not copy or transcribe the Source Code or any portion thereof into the notes.
`The Receiving Party’s expert(s) and/or consultant may use a single Notetaking Computer in the
`review room for the sole purpose of taking and reviewing his or her notes. The Notetaking
`Computer shall be provided to the Receiving Party by the Producing Party at the beginning of the
`first inspection, and shall have commercially reasonable processing power and storage facilities.
`The Receiving Party may maintain the Notetaking Computer in its possession until ninety days
`following final termination of this matter, after which it must destroy the Notetaking Computer or
`return it to the Producing Party. The Receiving Party shall treat the Notetaking Computer, and
`any notes on it, with the same precautions as are required for printed copies of source code. The
`Producing Party shall install on the Notetaking Computer reasonable word-processing software as
`requested by the Receiving Party. The WiFi, Bluetooth, and camera functionalities on the
`Notetaking Computer will be permanently disabled. The taking of photographs or video shall not
`be permitted in the Source Code Review Room. The Producing Party may inspect the Receiving
`Party’s Notetaking Computer to be used in the Source Code Review Room, but solely to ensure
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`that it is the same Notetaking Computer previously provided. Such inspection shall be conducted
`in the Receiving Party’s presence and should not count against Receiving Party’s review time.
`The Producing Party may not look at any notes or files on the Notetaking Computer at any time.
`The Receiving Party shall not install or insert any added functionality whatsoever as to the
`Notetaking computer and shall not attempt to connect the Notetaking Computer to any network.
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`(v)
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`The Producing Party may monitor the activities of the Receiving
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`Party’s representatives during any Source Code review, but only in a manner that is not
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`unreasonably disruptive to the review (for example, any meaningful period of time observing what
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`is being done on the screen by the Receiving Party during its review), and to ensure that no
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`unauthorized electronic records of the Source Code and no information concerning the Source
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`Code are being created or transmitted in any way. During the Receiving Party’s review of the
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`Source Code, the Producing Party shall not interfere with the Receiving Party’s review of the
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`Source Code and shall not be permitted access to the Receiving Party’s notes, work product, or
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`discussions inside the review room or following each day’s inspection of the Source Code. During
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`the Source Code review, the Producing Party agrees to provide a “break-out” room for the
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`Receiving Party’s Source Code reviewer(s) to make phone calls and work. To the extent such a
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`break-out room is not reasonably available, the Producing Party agrees to so notify the Receiving
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`Party at least three business days in advance of any day on which the Receiving Party’s Source
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`Code reviewers are expected to inspect the Source Code. No copies of all or any portion of the
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`Source Code may leave the Source Code Review Room except as otherwise provided herein.
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`Further, no other written or electronic record of the Source Code is permitted except as otherwise
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`provided herein. The Receiving Party may request a reasonable number of printouts of Source
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`Code, including as reasonably necessary for the preparation of court filings, pleadings, expert
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`Case 6:19-cv-00532-ADA Document 68 Filed 06/05/20 Page 16 of 28
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`reports, or other papers, and only to the extent necessary for use in this action. The Receiving
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`Party shall not request printing of Source Code in order to review blocks of Source Code elsewhere
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`in the first instance, i.e., as an alternative to reviewing that Source Code electronically on the
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`Source Code Computer in the first instance, as the Parties acknowledge and agree that the purpose
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`of the protections herein would be frustrated by printing portions of code for review and analysis
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`elsewhere, and printing is permitted only when necessary to prepare Court filings or pleadings or
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`other papers (including a testifying expert’s expert report). The Producing Party shall number,
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`copy, and label “HIGHLY CONFIDENTIAL – SOURCE CODE” any pages requested by the
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`Receiving Party. Within three business days, the Producing Party shall either (i) provide one copy
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`set of such pages to the Receiving Party, or (ii) in