Case 6:20-cv-00636-ADA Document 107 Filed 06/09/21 Page 1 of 52
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DEMARAY LLC,
`
`Plaintiff
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD,
`SAMSUNG ELECTRONICS AMERICA,
`INC., SAMSUNG SEMICONDUCTOR,
`INC., and SAMSUNG AUSTIN
`SEMICONDUCTOR, LLC,
`
`Defendants.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`NO. 6:20-cv-636-ADA
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`AGREED PROTECTIVE ORDER
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`To expedite the flow of discovery material, to facilitate the prompt resolution of disputes
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`over confidentiality of discovery materials, to adequately protect information the parties are
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`entitled to keep confidential, to ensure that only materials the parties are entitled to keep
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`confidential are subject to such treatment, and to ensure that the parties are permitted reasonably
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`necessary uses of such materials in preparation for and in the conduct of trial, pursuant to Fed. R.
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`Civ. P. 26(c), it is hereby ORDERED THAT:
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`A.
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`Definitions
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`1.
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`“Party”: any party to this action, including all of its officers, directors, employees,
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`consultants, retained experts, and outside counsel (and their support staff).
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`2.
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`“Material”: all information, testimony, documents, and things produced, served, or
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`otherwise provided in this action by the Parties or by non-parties.
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`3.
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`“CONFIDENTIAL Material”: information, documents, and things the Designating
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`Party believes in good faith is not generally known to others, and which the Designating Party
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`(i) would not normally reveal to third parties except in confidence or has undertaken with others
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`to maintain in confidence, or (ii) believes in good faith is protected by a right to privacy under
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`federal or state law or any other applicable privilege or right related to confidentiality or privacy.
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`This designation includes all Material referring or relating to the foregoing, including but not
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`limited to copies, summaries, and abstracts of the foregoing.
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`4.
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`“OUTSIDE COUNSEL EYES ONLY Material”: information, documents, and
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`things the Designating Party believes in good faith is not generally known to others and has
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`significant competitive value such that unrestricted disclosure to others would create a substantial
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`risk of serious injury, and which the Designating Party (i) would not normally reveal to third
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`parties except in confidence or has undertaken with others to maintain in confidence, or
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`(ii) believes in good faith is significantly sensitive and protected by a right to privacy under federal
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`or state law or any other applicable privilege or right related to confidentiality or privacy. The
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`designation is reserved for information that constitutes proprietary financial or technical or
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`commercially sensitive competitive information that the Designating Party maintains as highly
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`confidential in its business, including information obtained from a non-party pursuant to a
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`Nondisclosure Agreement (“NDA”), information relating to future products, strategic plans, non-
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`public financial data, documents that would reveal trade secrets, licensing documents or licensing
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`communications, and settlement agreements or settlement communications, the disclosure of
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`which is likely to cause harm to the competitive position of the Designating Party. This
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`designation includes all Material referring or relating to the foregoing, including but not limited to
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`copies, summaries, and abstracts of the foregoing.
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`5.
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`“OUTSIDE COUNSEL EYES ONLY – SOURCE CODE”: C, C++, assembler,
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`digital signal processing (DSP) programming language, firmware source code, register transfer
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`language (RTL), hardware description language (HDL), circuit simulation files, non-programing
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`files that are part of the source code development suite (such as README, Release Note, log and
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`input files), design files (schematics, netlists, and layout files), microcode, and/or similarly
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`sensitive code or schematics (i.e., representations of any silicon mask or circuit design, diagram,
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`or blueprint containing specific gate-level circuit design representations) (collectively, “Source
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`Code”) that the Designating Party believes in good faith is not generally known to others and has
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`significant competitive value such that unrestricted disclosure to others would create a substantial
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`risk of serious injury, and which the Designating Party (i) would not normally reveal to third
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`parties except in confidence or has undertaken with others to maintain in confidence, or
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`(ii) believes in good faith is significantly sensitive and protected by a right to privacy under federal
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`or state law or any other applicable privilege or right related to confidentiality or privacy. This
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`designation includes all Materials referring or relating to the foregoing, including but not limited
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`to copies, summaries, and abstracts of the foregoing. If a non-Source Code document specifically
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`refers or relates to Source Code (e.g., a copy, summary, or abstract is included therein), upon
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`request from the Receiving Party, the Producing Party will meet and confer in good faith with the
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`Receiving Party regarding whether the Producing Party will redact the relevant portion of the
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`document and make the redacted document available as non-Source Code material subject to
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`appropriate alternative designation. If the Parties are unable to agree within 5 business days of the
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`meet and confer, the Parties will jointly seek the Court’s assistance in resolving the dispute. Any
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`document designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE” information
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`is automatically designated as SUBJECT TO PROSECUTION BAR in Section H.
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`6.
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`“OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE”: especially sensitive
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`semiconductor fabrication processes documentation (process flow specifications, operating
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`specifications, process sequence documents, die layout files, and process recipes) (collectively
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`“Process Recipes”) which the Designating Party believes in good faith is not generally known to
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`others, which has significant competitive value such that unrestricted disclosure to others would
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`create a substantial risk of serious injury, and which the Designating Party, in the ordinary course
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`of business, takes precautions to protect, and, further, which the Designating Party (i) would not
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`normally reveal to third parties except in confidence or has undertaken with others to maintain in
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`confidence, or (ii) believes in good faith is significantly sensitive and 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. This designation includes all Materials referring or relating to the
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`foregoing, including but not limited to copies, summaries, and abstracts of the foregoing. If a non-
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`Process Recipe document specifically refers or relates to Process Recipe Material (e.g., a copy,
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`summary, or abstract is included therein), upon request from the Receiving Party, the Producing
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`Party will meet and confer in good faith with the Receiving Party regarding whether the Producing
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`Party will redact the relevant portion of the document and make the redacted document available
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`as non-Process Recipe material subject to appropriate alternative designation. If the Parties are
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`unable to agree within 5 business days of the meet and confer, the Parties will jointly seek the
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`Court’s assistance in resolving the dispute. Samsung states that it treats Process Recipe Material
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`in a manner that is at least as protective as Source Code. Any document designated as “OUTSIDE
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`COUNSEL EYES ONLY – PROCESS RECIPE” information is automatically designated as
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`SUBJECT TO PROSECUTION BAR in Section H.
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`7.
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`8.
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`“Producing Party”: a Party or non-party that produces Material in this action.
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`“Receiving Party”: a Party that receives Material from a Producing Party.
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`9.
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`“Designated Material”: Material
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`that
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`is designated “CONFIDENTIAL”,
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`“OUTSIDE COUNSEL EYES ONLY”, “OUTSIDE COUNSEL EYES ONLY – SOURCE
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`CODE” or “OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE” under this Order.
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`10.
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`“Designating Party”: a Party or non-party
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`that designates Material as
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`“CONFIDENTIAL”, “OUTSIDE COUNSEL EYES ONLY”, “OUTSIDE COUNSEL EYES
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`ONLY – SOURCE CODE” or “OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE”.
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`11.
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`“Counsel of Record”: (i) outside counsel who appears on the pleadings as counsel
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`for a Party; (ii) partners, associates, and employees of such outside counsel to whom it is
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`reasonably 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, and
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`shorthand reporters; (iii) independent legal translators retained to translate in connection with this
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`action, or independent shorthand reporters retained to record and transcribe testimony in
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`connection with this action. “Counsel of Record” does not include any person who is an employee,
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`director, or officer of a Party or a Party’s affiliates even if that person appears on the pleadings as
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`counsel for a Party.
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`12.
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`“Litigation Manager”: an employee or consultant in a Party’s legal department or
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`intellectual property division whose responsibilities include overseeing this litigation, who is not
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`a competitive decisionmaker regarding equipment for physical vapor deposition of thin films in
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`semiconductor integrated circuit products and who is not a Board member or Board-appointed
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`officer of that Party. For the avoidance of doubt, an individual is not a competitive decisionmaker
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`solely by virtue of participating in the negotiation of settlement agreements. Each Party may have
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`a maximum of one Litigation Manager. Either party may substitute its Litigation Managers with
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`reasonable notice to the other party.
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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 action who has been retained by a Party or its Counsel of Record to serve
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`as an expert witness or as a consultant in this action and who is not a current employee, officer, or
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`director of a Party or of a competitor of a Party and who, at the time of retention, is not anticipated
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`to become an employee, officer, or director of a Party or of a competitor of a Party.
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`14.
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`“Professional Vendors”: persons or entities that provide litigation support services
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`(e.g., photocopying, organizing, storing, or retrieval of data in any form or medium, videotaping,
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`translating, designing and preparing exhibits, graphics, or demonstrations, etc.) and their
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`employees and subcontractors. This definition includes a professional jury or trial consultant
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`retained in connection with this litigation and mock jurors retained by such a consultant to assist
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`them in their work. Professional Vendors do not include consultants who fall within the definition
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`of Outside Consultant.
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`B.
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`Scope
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`15.
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`The protections conferred by this Order cover not only Designated Material (as
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`defined above), but also any information copied or extracted therefrom, as well as all copies,
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`excerpts, summaries, or compilations thereof. Nothing herein changes in any way the discovery
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`provisions of the Federal Rules of Civil Procedure or the Court’s deadlines. Identification of any
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`individual pursuant to this Protective Order does not make that individual available for deposition
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`or any other form of discovery outside of the restrictions and procedures of the Federal Rules of
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`Civil Procedure, the rules of the United States District Court for the Western District of Texas, and
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`the Court’s orders applicable to this case.
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`C.
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`Access to Designated Material
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`16.
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`CONFIDENTIAL Material: Unless otherwise ordered by the Court or permitted
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`in writing by the Designating Party, a Receiving Party may disclose any information, document,
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`or thing designated “CONFIDENTIAL” only to:
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`(a)
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`persons who appear on the face of Designated Material as an author,
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`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
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`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
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`Producing Party with an opportunity to object prior to such disclosure;
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`(b)
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`Counsel of Record;
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`(c)
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`Litigation Managers to whom disclosure is reasonably necessary for this
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`litigation and who have signed the “Litigation Manager Acknowledgment and Agreement to Be
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`Bound by Protective Order” attached as Exhibit C;
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`(d)
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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 signed the “Acknowledgment and
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`Agreement to Be Bound By Protective Order” attached hereto as Exhibit A and the “Certification
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`Of Outside Consultant” attached hereto as Exhibit B. Disclosure may be made to such Outside
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`Consultants of the Receiving Party only pursuant to and after completion of the procedures set out
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`in Section D below;
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`(e)
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`witnesses of the Producing Party at deposition and/or trial, provided that
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`such witnesses may not retain copies of Designated Material unless permitted by other provisions
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`of this Order;
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`(f)
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`this Court in the above-captioned civil action, and the court in any appeal
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`from any of the foregoing actions, in each case including such court’s personnel;
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`(g)
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`any designated arbitrator or mediator who is assigned to hear this matter,
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`and his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By
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`Protective Order” attached hereto as Exhibit A and the “Certification Of Outside Consultant”
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`attached hereto as Exhibit B;
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`(h)
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`court reporters; and
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`(i)
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`Professional Vendors to which disclosure is reasonably necessary for this
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`litigation and a representative of which has signed the “Acknowledgment and Agreement To Be
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`Bound By Protective Order” attached hereto as Exhibit A.
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`17.
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`OUTSIDE COUNSEL EYES ONLY Material: Unless otherwise ordered by the
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`Court or permitted in writing by the Designating Party, a Receiving Party may disclose any
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`information, documents, or things designated OUTSIDE COUNSEL EYES ONLY Material only
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`to the following in addition to those identified in Paragraphs 45-46 below regarding use of
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`Designated Material at depositions:
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`(a)
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`persons who appear on the face of Designated Material as an author,
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`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
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`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
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`Producing Party with an opportunity to object prior to such disclosure;
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`(b)
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`Counsel of Record;
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`(c)
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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 signed the “Acknowledgment and
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`Agreement To Be Bound By Protective Order” attached hereto as Exhibit A and the “Certification
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`Of Outside Consultant” attached hereto as Exhibit B. Disclosure may be made to such Outside
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`Consultants of the Receiving Party only pursuant to and after completion of the procedures set out
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`in Section D below;
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`(d)
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`this Court in the above-captioned civil action, and the court in any appeal
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`from any of the foregoing actions, in each case including such court’s personnel;
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`(e)
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`any designated arbitrator or mediator who is assigned to hear this matter,
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`and his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By
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`Protective Order” attached hereto as Exhibit A and the “Certification Of Outside Consultant”
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`attached hereto as Exhibit B;
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`(f)
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`court reporters; and
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`(g)
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`Professional Vendors to which disclosure is reasonably necessary for this
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`litigation and a representative of which has signed the “Acknowledgment and Agreement To Be
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`Bound By Protective Order” attached hereto as Exhibit A.
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`18.
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`OUTSIDE COUNSEL EYES ONLY – SOURCE CODE Material: Unless
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`otherwise ordered by the Court or permitted in writing by the Designating Party, a Receiving Party
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`may disclose any information, documents, or things designated OUTSIDE COUNSEL EYES
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`ONLY – SOURCE CODE Material only to the following in addition to those identified in
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`Paragraphs 45-46 below regarding use of Designated Material at depositions:
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`(a)
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`persons who appear on the face of Designated Material as an author,
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`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
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`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
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`Producing Party with an opportunity to object prior to such disclosure;
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`(b)
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`Counsel of Record;
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`(c)
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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 signed the “Acknowledgment and
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`Agreement To Be Bound By Protective Order” attached hereto as Exhibit A and the “Certification
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`Of Outside Consultant” attached hereto as Exhibit B. Disclosure may be made to such Outside
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`Consultants of the Receiving Party only pursuant to and after completion of the procedures set out
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`in Section D below;
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`(d)
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`this Court in the above-captioned civil action, and the court in any appeal
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`from any of the foregoing actions, in each case including such court’s personnel;
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`(e)
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`any designated arbitrator or mediator who is assigned to hear this matter,
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`and his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By
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`Protective Order” attached hereto as Exhibit A and the “Certification Of Outside Consultant”
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`attached hereto as Exhibit B; and
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`(f)
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`court reporters.
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`19.
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`OUTSIDE COUNSEL EYES ONLY – PROCESS RECIPE Material:
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`Unless otherwise ordered by the Court or permitted in writing by the Designating Party, a
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`Receiving Party may disclose any information, documents, or things designated OUTSIDE
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`COUNSEL EYES ONLY – PROCESS RECIPE Material only to the following in addition to those
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`identified in Paragraph 45 below regarding use of Designated Material at depositions:
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`(a)
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`persons who appear on the face of Designated Material as an author,
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`addressee, or recipient thereof, provided, however, that no one may show Designated Material to
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`an ex-employee of a Producing Party without first notifying the Producing Party and providing the
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`Producing Party with an opportunity to object prior to such disclosure;
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`(b)
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`Counsel of Record;
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`(c)
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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 signed the “Acknowledgment and
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`Agreement To Be Bound By Protective Order” attached hereto as Exhibit A and the “Certification
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`Of Outside Process Recipe Consultant” attached hereto as Exhibit D. . Disclosure may be made
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`to such Outside Consultants of the Receiving Party only pursuant to and after completion of the
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`procedures set out in Section D below;
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`(d)
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`this Court in the above-captioned civil action, and the court in any appeal
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`from any of the foregoing actions, in each case including such court’s personnel;
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`(e)
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`any designated arbitrator or mediator who is assigned to hear this matter,
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`and his or her staff, who have signed the “Acknowledgment and Agreement To Be Bound By
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`Protective Order” attached hereto as Exhibit A and the “Certification Of Outside Process Recipe
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`Consultant” attached hereto as Exhibit D; and
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`(f)
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`court reporters.
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`20.
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`Each person to whom Designated Material may be disclosed, and who is required
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`to sign the “Acknowledgment and Agreement To Be Bound By Protective Order” attached hereto
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`as Exhibit A, or the “Certification Of Outside Consultant” attached hereto as Exhibit B (if
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`applicable) or the “Litigation Manager Acknowledgment and Agreement to Be Bound by
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`Protective Order” attached hereto as Exhibit C (if applicable) or the “Certification Of Outside
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`Process Recipe Consultant” attached hereto as Exhibit D (if applicable), must do so prior to the
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`time such Designated Material is disclosed to him or her. Counsel for a Party who makes any
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`disclosure of Designated Material must retain each original executed certificate and, upon written
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`request, must provide copies to counsel for all other Parties at the termination of this action.
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`21.
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`At the request of the Designating Party, persons not permitted access to Designated
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`Material under the terms of this Protective Order must not be present at depositions while the
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`Designating Party’s Designated Material is discussed or otherwise disclosed. Pre-trial and trial
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`proceedings must be conducted in a manner, subject to the supervision of the Court, to protect
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`Designated Material from disclosure to persons not authorized to have access to such Material.
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`D.
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`Access By Outside Consultants
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`22.
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`Notice. If a Receiving Party wishes to disclose another Party’s Designated Material
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`to any Outside Consultant, such Receiving Party must provide advance written notice by email to
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`counsel for the Designating Party, which notice must include: (a) the individual’s name and
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`business title; (b) business address; (c) business or profession; (d) the individual’s CV; (e) any
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`previous, current or anticipated relationship (personal or professional) with any of the Parties
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`(and/or their predecessors or successors in interest) or a Party’s competitor (and/or their
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`predecessors or successors in interest); (f) a list of other cases in which the individual has testified
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`(at trial or deposition) within the last four years; (g) an identification of all companies with which
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`the individual has consulted or by which the individual has been employed within the last four
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`years;1 and (h) a signed copy of (1) the “Acknowledgment and Agreement To Be Bound By
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`Protective Order” attached hereto as Exhibit A and (2) one or both of the “Certification Of Outside
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`Consultant” attached hereto as Exhibit B and the “Certificate of Outside Process Recipe
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`Consultant” attached hereto as Exhibit D.
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`1 If the Outside Consultant believes any of this information is subject to a confidentiality obligation to a
`third-party, then the Outside Consultant should provide sufficient information for the Designating Party to determine
`whether it needs to object to the Outside Consultant. In all instances, the Outside Consultant may not omit entirely
`the existence of work that was performed pursuant to a confidentiality agreement. In addition, the Party seeking to
`disclose to the Outside Consultant shall be available to meet and confer with the Designating Party regarding any
`such engagement.
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`23.
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`Objections. The Designating Party will have seven (7) business days from receipt
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`of the notice specified in Paragraph 22 to object in writing to such disclosure. Any such objection
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`must set forth in detail the grounds on which it is based. After the expiration of the 7-day period,
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`if no objection has been asserted, then Designated Material may be disclosed to the Outside
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`Consultant pursuant to the terms of this Order. However, if the Designating Party objects within
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`the 7-day period, the Receiving Party may not disclose Designated Material to the challenged
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`individual absent written resolution of the dispute or Court Order. In the event the Designating
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`Party makes a timely objection, the Parties must meet and confer within three business days by
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`telephone or in person to try to resolve the matter by agreement. If the Parties cannot reach an
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`agreement, the objecting Party may within five (5) business days following the meet and confer
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`move for a protective order preventing disclosure of Designated Material to the Outside Consultant
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`or for other appropriate relief. If the objecting Party fails to move for protective order within the
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`prescribed period, any objection to the Outside Consultant is waived, and Designated Material may
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`thereafter be disclosed to such individual. If the objecting Party timely moves for a protective
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`order, Designated Material must not be disclosed to the challenged individual until and unless a
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`final ruling allowing such disclosure is made by this Court or by the consent of the objecting Party,
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`whichever occurs first.
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`E.
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`Production of OUTSIDE COUNSEL EYES ONLY - SOURCE CODE Material
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`24.
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`Unless otherwise agreed to in writing between the Producing Party and the
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`Receiving Party, Source Code designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE
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`CODE” may only be provided on at least two stand-alone computers (that is, a computer not
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`connected to a network, the Internet, or any peripheral device, except that the stand-alone computer
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`may be connected to a printer or printers and a monitor and will have a mouse connected, all other
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`ports must be disabled) at secure locations, to be made available during regular business hours
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`(9:00 a.m. to 6:00 p.m. local time) on weekdays on five (5) business days’ notice, at Producing
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`Party’s counsel’s offices in the United States or another law firm’s offices in the United States
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`designated by the Producing Party (“Source Code Computers”). For Samsung, the secure locations
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`will be in Palo Alto, California and at the Producing Party’s counsel’s offices in Los Angeles,
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`California. The Receiving Party must identify in writing to the Producing Party the persons who
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`will be conducting the inspection or will be present during the inspection no less than 48 hours in
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`advance of any such inspection. Before being admitted into the secure location, an individual must
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`provide a photo identification card issued by the United States federal government or the
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`government of a state of the United States.
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`25.
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`The Producing Party will produce Source Code designated as “OUTSIDE
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`COUNSEL EYES ONLY – SOURCE CODE” in computer searchable format and in a file
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`structure and format that mirrors the file structure and format of the Source Code as maintained by
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`the Producing Party in the ordinary course of business, pursuant to the provisions of Paragraph 24
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`above, but need not produce in executable format absent further written agreement of the parties
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`or order of the Court. The Producing Party may monitor any review of Source Code designated
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`as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE”, but only as is reasonable to ensure
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`compliance with this Protective Order and in a manner that will not interfere with the Receiving
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`Party’s confidential communications or otherwise invade the Receiving Party’s attorney work
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`product, and that will afford the Receiving Party adequate privacy to permit the development of
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`appropriate work product. The Producing Party shall provide the Receiving Party with information
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`explaining how to start, log on to, and operate the Source Code Computers in order to access the
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`produced Source Code. In order to verify that its Source Code has not later been altered, the
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`Case 6:20-cv-00636-ADA Document 107 Filed 06/09/21 Page 15 of 52
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`Producing Party may benchmark the materials to confirm that the materials have not been altered
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`before and after they are provided but shall not install any keystroke or other monitoring software
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`on the Source Code Computers. Each time a Producing Party makes Material available for review
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`on the Source Code Computers, it shall promptly notify the Receiving Party of the same and
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`provide a summary of the volume and nature of such newly available Material.
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`26.
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`Except as otherwise provided herein, no copies of any portion of the Source Code
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`may leave the secure location in which the Source Code is inspected. Further, except as provided
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`herein, no written or electronic record of the Source Code is permitted. Notwithstanding the
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`foregoing, the Receiving Party may request printed copies of specific portions of Source Code
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`designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE.” Within five (5) business
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`days of the printing request, the Producing Party must either (i) provide five (5) paper copies of
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`Source Code designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE” including
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`Bates numbers and appropriate confidentiality labels when printed, along with a native Microsoft
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`Excel file that lists the filepath and filename, as they appear on any stand-alone computer, of each
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`requested file, correlated to the beginning Bates number of the corresponding print-out, or,
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`alternatively, the Producing Party may brand printouts with the filepath and filename of each file,
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`as it appears on any stand-alone computer; or (ii) object that a printing request is excessive and/or
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`not done for a permitted purpose. The Producing Party must retain copies of any portions of Source
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`Code printed and the Receiving Party is prohibited from removing the copies from the secure
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`location. The entire code or an unreasonably large portion of the code must not be requested. The
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`Receiving Party is not entitled to request copies in order to review blocks of Source Code
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`designated as “OUTSIDE COUNSEL EYES ONLY – SOURCE CODE” elsewhere in the first
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`instance, i.e., as an alternative to reviewing the materials electronically on the stand-alone
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`Case 6:20-cv-00636-ADA Document 107 Filed 06/09/21 Page 16 of 52
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`computers provided by the Producing Party, 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. Printouts of the Source Code that exceed 60 contiguous pages or 20% or more of a
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`specific software release will be presumed excessive unless the Receiving Party provides a
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`compelling justification that such printed portions are necessary. For example, if the requested
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`portion of the source code comprises a complete code module that is directly relevant to the
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`operation of the accused instrumentality, yet that requested portion exceeds the aforementioned
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`page limits, such request may be deemed a compelling justification. If the Producing Party objects
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`within three (3) business days of a printing request that the printing request is excessive and/or not
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`done for a permitted purpose, the Producing Party and Receiving Party will meet and confer within
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`three (3) business days of the Producing Party’s objection. If the Producing Party and the
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`Receiving Party cannot resolve the objection, the Receiving Party may, within three (3) business
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`days after the meet and confer, seek the Court’s resolution of whether the request is narrowly
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`tailored for a permitted purpose. The burden will be on the Receiving Party to demonstrate that
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`such portions are no more than is reasonably necessary for a permitted purpose, and not merely
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`for the purpose of review and analysis in another location.
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`27.
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`A Receiving Party of any paper copies of any Source Code designated as
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`“OUTSIDE COUNSEL EYES ONLY – SOURCE CODE” must always keep the paper copies of
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`the Source Code at the office of the Receiving Party’s Outside Counsel of Record, and in a locked
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`storage container at the office of the Receiving Party’s Outside Counsel of Record when the paper
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`copies of the Source Code are not in use. Outside Consultants and experts are prohibited from
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`keeping copy sets. The Receiving Party may not reproduce the paper copies of the Source Code,
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`absent written agreement of the Producing Party. The Receiving Party must maintain a Source
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`Case 6:20-cv-00636-ADA Document 107 Filed 06/09/21 Page 17 of 52
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`Code Access Log identifying, for each and every time any Source Code is viewed, accessed, or
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`analyzed: (i) the name of each person who accessed the Source Code; (ii) the date of access; and
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`(iii) the locatio