Case 6:20-cv-01212-ADA Document 65 Filed 03/10/22 Page 1 of 19
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`
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`
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`NO. 6:20-cv-01212-ADA
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`
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`OCEAN SEMICONDUCTOR LLC,
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`Plaintiff,
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`vs.
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`NXP USA, INC. et al.
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`Defendants.
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`
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`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`PROTECTIVE ORDER
`WHEREAS, Plaintiff Ocean Semiconductor LLC and Defendants NXP USA, Inc., NXP B.V., and
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`NXP Semiconductors N.V., hereafter referred to individually as a “Party” and collectively as “the
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`Parties,” believe that certain information that is or will be encompassed by discovery demands by
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`the Parties involves the production or disclosure of trade secrets, confidential business
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`information, or other proprietary information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with Federal
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`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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`designated by the Party producing it by affixing a legend or stamp on such document,
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`Case 6:20-cv-01212-ADA Document 65 Filed 03/10/22 Page 2 of 19
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`information, or material as follows: “CONFIDENTIAL.” The word “CONFIDENTIAL”
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`shall be placed clearly on each page of the Protected Material (except deposition and hearing
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`transcripts) for which such protection is sought. For deposition and hearing transcripts, the
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`word “CONFIDENTIAL” shall be placed on the cover page of the transcript (if not already
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`present on the cover page of the transcript when received from the court reporter) by each
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`attorney receiving a copy of the transcript after that attorney receives notice of the
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`designation of some or all of that transcript as “CONFIDENTIAL.”
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`2.
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`Any document produced before issuance of this Order, including pursuant to the Court’s
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`Order Governing Proceedings - Patent Case, with the designation “Confidential” or the like
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`shall receive the same treatment as if designated “CONFIDENTIAL” under this Order and
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`any such documents produced with the designation “Confidential - Outside Attorneys’
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`Eyes Only” shall receive the same treatment as if designated “CONFIDENTIAL -
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`OUTSIDE ATTORNEYS’ EYES ONLY” under this Order, unless and until such
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`document is re-designated 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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`“CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” “CONFIDENTIAL - OUTSIDE
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`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
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`- SOURCE CODE”
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`(“DESIGNATED MATERIAL”),1 subject to the provisions herein and unless otherwise
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`stated, this Order governs, without limitation: (a) all documents, electronically stored
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`information, and/or things as defined by the Federal Rules of Civil Procedure; (b) all
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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,” “CONFIDENTIAL - ATTORNEYS’ EYES
`ONLY,” “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
`- SOURCE CODE,” individually and collectively.
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`pretrial, hearing or deposition testimony, or documents marked as exhibits or for
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`identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and
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`other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions, extracts,
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`digests, and complete or partial summaries prepared from any DESIGNATED
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`MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such
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`under this Order.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL,” “CONFIDENTIAL -
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`ATTORNEYS’ EYES ONLY,” “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
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`ONLY,” or “CONFIDENTIAL - SOURCE CODE”) may be made at any time. Inadvertent
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`or unintentional production of documents, information, or material that has not been
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`designated as DESIGNATED MATERIAL shall not be deemed a waiver in whole or in part
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`of a claim for confidential treatment. Any Party that inadvertently or unintentionally
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`produces Protected Material without designating it as DESIGNATED MATERIAL may
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`request destruction of that Protected Material by notifying the recipient(s) as soon as
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`reasonably possible after the producing Party becomes aware of the inadvertent or
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`unintentional disclosure, and providing replacement Protected Material that is properly
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`designated. The recipient(s) shall then destroy all copies of the inadvertently or
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`unintentionally produced Protected Materials and any documents, information, or material
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`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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`upon order of the Court, or as set forth in paragraph 15 herein:
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`(a)
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`Outside counsel of record in this Action for the Parties.
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`(b)
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`(c)
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`(d)
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`(e)
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`Employees of such counsel 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.
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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, except that any Party
`may in good faith request the other Party’s consent to designate one or more
`additional representatives, the other Party shall not unreasonably withhold such
`consent, and the requesting Party may seek leave of Court to designate such
`additional representative(s) if the requesting Party believes the other Party has
`unreasonably withheld such consent.
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`Outside consultants or experts (including support staff) retained for the purpose of
`this litigation, provided that: (1) such consultants or experts are not presently
`employed by the Parties or of an affiliate of a Party hereto for purposes other than
`this Action; (2) before access is given, the consultant or expert has completed the
`Undertaking attached as Appendix A hereto and the same is served upon the
`producing Party with a current curriculum vitae of the consultant or expert,
`including a list of other cases in which the individual has provided a report or
`testified (at trial or deposition) and a list of all companies that the individual has
`been employed by or provided consulting services pertaining to the field of the
`invention of the patent(s)-in-suit or the products accused of infringement within
`the last four years and a brief description of the subject matter of the consultancy
`or employment, at least ten (10) business days before access to the Protected
`Material is to be given to that consultant or expert to object to and notify the
`receiving Party in writing that it objects to disclosure of Protected Material to the
`consultant or expert. 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 file a motion with the Court within fifteen (15) business days of
`receipt of the notice, or within such other time as the Parties may agree, seeking a
`protective order with respect to the proposed disclosure. The objecting Party shall
`have the burden of proving the need for a protective order. No disclosure shall occur
`until all such objections are resolved by agreement or Court order. While support
`staff are not required to complete the Undertaking for purposes of disclosure of
`Protected Material, the expert or consultant is required to ensure compliance from
`his or her support staff with all provisions of this Order.
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`(f)
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`Independent litigation support services, including persons working for or as court
`reporters, graphics or design services, jury or trial consulting services, and
`photocopy, document imaging, and database services retained by counsel and
`reasonably necessary to assist counsel with the litigation of this Action.
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`(g) Mock jurors who have signed an undertaking or agreement agreeing not to publicly
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`6.
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`disclose Protected Material and to keep any information concerning Protected
`Material confidential.
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`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
`Order.
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`Any other person with the prior written consent of the producing Party.
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`The Court and its personnel.
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`(h)
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`(i)
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`(j)
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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 in this Action, including but not limited
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`to Protected Material designated as DESIGNATED MATERIAL, shall be used by the
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`Parties only in the litigation of this Action and shall not be used for any other purpose.
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`Subject to other provisions in this Order, any person or entity who obtains access to
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`DESIGNATED MATERIAL or the contents thereof pursuant to this Order shall not make
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`any copies, duplicates, extracts, summaries, or descriptions of such DESIGNATED
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`MATERIAL or any portion thereof except as may be reasonably necessary in the litigation
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`of this Action. Any such copies, duplicates, extracts, summaries, or descriptions shall be
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`classified DESIGNATED MATERIALS and subject to all of the terms and conditions of
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`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 “CONFIDENTIAL
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`- ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’
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`EYES ONLY” where appropriate, or to the extent such Protected Material includes
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`computer source code and/or live data (that is, data as it exists residing in a database or
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`databases, including mask and layout files as they reside in a database (e.g., GDS, .sip
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`formats), process flow documents and/or recipes, and design rule manuals) (“Source Code
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`Material”),
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`the producing Party may designate
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`such Protected Material as
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`“CONFIDENTIAL - SOURCE CODE.”
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`9.
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`For Protected Material designated CONFIDENTIAL - ATTORNEYS’ EYES ONLY,
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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–c) and (e–j); provided, however, that access by in-house counsel pursuant
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`to paragraph 5(c) be limited to in-house counsel who exercise no competitive decision-
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`making authority on behalf of the client.
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`10.
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`For Protected Material designated CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
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`ONLY, access to, and disclosure of, such Protected Material shall be limited to individuals
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`listed in paragraphs 5(a–b) and (e–j).
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`11.
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`For Protected Material designated CONFIDENTIAL - SOURCE CODE, the following
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`additional restrictions apply:
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`(a)
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`Access to a Party’s Source Code Material shall be provided, at the producing
`Party’s election:
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`i. on (1) a secured computer having disk encryption and password protection
`in a secured room without Internet access or network access to other
`computers, such that all persons entering the secured room containing the
`source code are subject to reasonable security measures to ensure they are
`not carrying any prohibited items before they will be given access to the
`secured room; or (2) on a Linux-based networked computer configured to
`connect (via a Virtual Private Network or Virtual Network Computing
`connection) to a source code review environment hosted on a remote server
`maintained by the producing Party.
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`OR
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`ii. on secured computer(s) connected only to (1) a printer, (2) a device capable
`of temporarily storing electronic copies solely for the limited purposes
`permitted pursuant to paragraphs 11(h) and 11(k) below, or (3) at the
`producing Party’s discretion, a secure repository through a remote network
`connection.
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`The (1) secured computer(s) and (2) the Linux-based networked computer are
`referenced herein as the “Source Code Computer.” The Source Code Computer
`will be configured to prevent additional peripheral devices (e.g., USB thumb
`drives) from being connected to them. Additionally, except as provided in
`paragraph 11(k) below, the Source Code Computer may only be located at the
`offices of the producing Party’s outside counsel or its vendors. If requested by the
`receiving Party, the producing party shall install tools that are reasonably necessary
`to review the source code on the Source Code Computers including, but not limited
`to: Grep, Understand C, Visual Slick Edit, Source-Navigator, PowerGrep and/or
`ExamDiff Pro. If the producing Party does not possess an appropriate license to
`any such software tools, the requesting Party may provide the producing Party with
`a licensed copy of such software tools, and the producing Party shall install such
`software tools on the source code computers. Use or possession of removable
`media, recordable devices, or other input/output devices, including, without
`limitation, cameras, sound recorders, peripheral equipment, floppy disks, CDs,
`DVDs, USB memory sticks, mobile phones or tablets, cameras or any camera-
`enabled devices, portable hard drives, laptops, or any device of any kind that can
`(1) copy, remove, or otherwise transfer any portion of the Source Code Material or
`(2) access the Internet or any other network or external system, shall be prohibited
`in the source code review room and while accessing the Source Code Computer.
`The receiving Party shall not copy, remove, or otherwise transfer any portion of
`the Source Code Material onto any recordable media or recordable device from the
`Source Code Computer. Written notes relating to the Source Code Material may
`be taken only in spiral- or permanently-bound notebooks and shall be designated
`CONFIDENTIAL – SOURCE CODE. The Source Code Material may not be
`copied into the notes. Any handwritten notes or other work product, created by the
`receiving Party reflecting Source Code Material shall be marked as
`“CONFIDENTIAL – SOURCE CODE.” No other written or electronic record of
`the source code is permitted except as otherwise provided herein. The producing
`Party may visually monitor the activities of the receiving Party’s representatives
`during any review, but only to ensure that there is no unauthorized recording,
`copying, or transmission of the Source Code Material.
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`(b)
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`The receiving Party shall provide notice five (5) business days in advance of its
`request to access a Party’s Source Code Material. The receiving Party shall make
`reasonable efforts to restrict its requests for such access to the Source Code
`Computer to normal business hours, which for purposes of this paragraph shall be
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`(c)
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`(d)
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`(e)
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`8:00 a.m. through 6:00 p.m., local time, on regular business days. The producing
`Party may require that any individuals reviewing Source Code Material on behalf
`of the receiving Party be (1) disclosed five (5) business days in advance of the
`review; (2) required to sign in at the time of the review; and (3) monitored during
`the review for purposes of ensuring compliance with this Order. 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 or vendors shall not unreasonably
`hinder the receiving Party’s ability to efficiently and effectively conduct the
`prosecution or defense of this Action.
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`The producing Party shall provide the receiving Party with information explaining
`how to start, log on to, and operate the Source Code Computer in order to access the
`produced Source Code Material on the Source Code Computer.
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`To the extent the material exists in computer searchable format and may be
`reasonably provided for inspection in such form, the producing Party will produce
`Source Code Material in computer searchable format on the Source Code
`Computer as described above.
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`Access to Source Code Material shall be limited to outside counsel of record and
`their employees as set forth in paragraphs 5(a) and 5(b) above and up to four (4)
`outside consultants or experts2 (i.e., not existing employees or affiliates of a Party
`or an affiliate of a Party or competitor identified by the producing Party with
`reasonable specificity) retained for the purpose of this litigation and approved to
`access such Protected Materials pursuant to paragraph 5(e) above. A receiving
`Party may include excerpts of Source Code Material in an exhibit to a pleading,
`expert report, or deposition transcript (collectively, “Source Code Exhibits”),
`provided that (1) the Source Code Exhibits are appropriately marked under this
`Order and restricted to those who are entitled to have access to them as specified
`herein; and (2) if filed with the Court, filed under seal in accordance with the
`Court’s rules, procedures, and orders.
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`(f)
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`To the extent portions of Source Code Material are quoted, summarized, or
`described in a Source Code Exhibit, either (1) the entire Source Code Exhibit will
`be stamped and treated as CONFIDENTIAL - SOURCE CODE or (2) those pages
`containing quoted, summarized, or described Source Code Material will be
`separately stamped and treated as CONFIDENTIAL - SOURCE CODE.
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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 support staff, such that the disclosure to a consultant or
`expert who employs direct reports and support staff within his or her firm to help in his or her
`analysis, including source code analysis, shall count as a disclosure to a single consultant or expert,
`provided that all such direct reports and support staff helping in the analysis of Source Code
`Material shall be disclosed pursuant to Paragraph 5(e).
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`No electronic copies of Source Code Material shall be made without prior written
`consent of the producing Party, except as necessary to create documents that,
`pursuant to the Court’s rules, procedures, or orders, must be filed or served
`electronically.
` Any permissible electronic copies
`shall be
`labeled
`“CONFIDENTIAL – SOURCE CODE” and shall be treated as such.
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`The receiving Party shall be permitted to request printouts of a reasonable number
`of pages of Source Code Material, which shall presumptively be no more than 25
`consecutive pages of Source Code Material, with a total limit of 500 pages, and
`five (5) copies of those pages, all of which shall be Bates-stamped and designated
`and clearly labeled “CONFIDENTIAL - SOURCE CODE” on each page by the
`producing Party, and the receiving Party shall maintain a log of all such printouts,
`identifying each person who reviews the printouts, the review dates, and the
`printout volume(s) reviewed. The producing Party shall be entitled to obtain a
`copy of the log within five (5) business days upon request. The receiving Party
`shall not request printing of Source Code in order to review blocks of Source Code
`elsewhere in the first instance. Except as explicitly permitted herein, the receiving
`Party is prohibited from making additional copies or scanning the printouts. The
`receiving Party is prohibited from keeping copy sets.
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`If the receiving Party’s outside counsel, consultants, or experts obtain printouts of
`Source Code Material as set forth in paragraph 11(h) above, the receiving Party
`shall ensure that such outside counsel, consultants, or experts keep the printouts in
`a secured locked area in the offices of such outside counsel, consultants, or expert.
`If the receiving Party’s outside counsel, consultants, or experts obtain permissible
`electronic copies of Source Code Material as set forth in paragraph 11(g) above,
`the receiving Party shall ensure that such outside counsel, consultants, or experts
`keep the permissible electronic copies as set forth in paragraph 11(g) above in a
`secure and encrypted electronic location. The receiving Party may also
`temporarily keep the printouts as set forth in paragraph 11(h) above or permissible
`electronic copies as set forth in paragraph 11(g) above 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 as set forth in
`paragraph 11(h) above or permissible electronic copies as set forth in paragraph
`11(g) above (e.g., a hotel prior to a Court proceeding or deposition).
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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 11(e) above
`to another person authorized under paragraph 11(e) above 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 by the receiving Party.
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`(g)
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`(h)
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`(i)
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`(j)
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`12.
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`(k)
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`The producing Party shall produce printouts of Source Code Material requested by
`the receiving Party within five (5) business days of the request.
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`Any attorney representing a Party, whether in-house or outside counsel, and any person
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`associated with a Party and permitted to receive the other Party’s Protected Material that is
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`designated CONFIDENTIAL - ATTORNEYS’ EYES ONLY, CONFIDENTIAL -
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`OUTSIDE ATTORNEYS’ EYES ONLY, and/or CONFIDENTIAL - SOURCE CODE
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`(collectively “HIGHLY SENSITIVE MATERIAL”), who obtains, receives, has access to,
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`or otherwise learns, in whole or in part, the other Party’s HIGHLY SENSITIVE
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`MATERIAL under this Order shall not prepare, prosecute, supervise, or assist in the
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`preparation or prosecution of any patent application pertaining to the field of the invention
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`of the patents-in-suit during the pendency of this Action and for one year after its conclusion,
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`including any appeals. To ensure compliance with the purpose of this provision, each Party
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`shall create an “Ethical Wall” between those persons with access to HIGHLY SENSITIVE
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`MATERIAL and any individuals who prepare, prosecute, supervise or assist in the
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`preparation or prosecution of any patent application pertaining to the field of invention of
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`the patent-in-suit. Nothing in this Order shall prevent a person with access to HIGHLY
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`SENSITIVE MATERIAL from participating in a post-grant review proceeding, e.g., IPR
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`or PGR, except for that person shall not participate—directly or indirectly—in the drafting
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`or amendment of any claim(s).
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`13.
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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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`other material subject to a claim of attorney-client privilege, work product doctrine, or other
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`privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
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`production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
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`any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
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`produces documents, information, or other material it reasonably believes are protected
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`under the attorney-client privilege, work product doctrine, or other privilege, doctrine, or
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`immunity may obtain the return of such documents, information, or other material by
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`promptly notifying the recipient(s) and providing a privilege log for the inadvertently or
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`unintentionally produced documents, information, or other material. The recipient(s)
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`shall gather and return all copies of such documents, information, or other material to the
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`producing Party, except for any pages containing privileged or otherwise protected markings
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`by the recipient(s), which pages shall instead be destroyed and certified as such to the
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`producing Party.
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`14.
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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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`15.
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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, sender,
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`addressee, or copy recipient of such information; (iii) although not identified as an author,
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`sender, addressee, or copy recipient of such DESIGNATED MATERIAL, has, in the
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`ordinary course of business, seen such DESIGNATED MATERIAL; (iv) a current or
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`Case 6:20-cv-01212-ADA Document 65 Filed 03/10/22 Page 12 of 19
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`former officer, director or employee of the producing Party or a current or former officer,
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`director, or employee of a company affiliated with the producing Party; (v) counsel for a
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`Party, including outside counsel and in-house counsel (subject to other paragraphs of this
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`Order); (vi) a consultant or expert, as defined in paragraph 5(e) above, retained for the
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`purpose of this litigation (subject to other paragraphs of this Order); (vii) court reporters
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`and videographers; (viii) the Court; or (ix) other persons entitled hereunder to access to
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`DESIGNATED MATERIAL. DESIGNATED MATERIAL shall not be disclosed to any
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`other persons unless prior authorization is obtained from counsel representing the
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`producing Party or from the Court.
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`16.
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`Parties may, at the deposition or hearing or within thirty (30) calendar days after
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`receipt of a deposition or hearing transcript, designate the deposition or hearing transcript
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`or any portion thereof as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES
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`ONLY,” “CONFIDENTIAL
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`- OUTSIDE ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL - SOURCE CODE” pursuant to this Order. Access to the deposition or
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`hearing transcript or portion thereof so designated shall be limited in accordance with the
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`terms of this Order. Until expiration of the thirty (30) day period, the entire deposition or
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`hearing transcript shall be treated as CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
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`ONLY.
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`17.
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`Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal and
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`shall remain under seal until further order of the Court. The filing Party shall be responsible
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`for informing the Clerk of the Court that the filing should be sealed and for placing the
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`legend “FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER” above the
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`caption and conspicuously on each page of the filing. Exhibits to a filing shall conform
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`Case 6:20-cv-01212-ADA Document 65 Filed 03/10/22 Page 13 of 19
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`to the labeling requirements set forth in this Order. If a pretrial pleading filed with the
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`Court, or an exhibit thereto, discloses or relies on DESIGNATED MATERIAL, such
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`confidential portions shall be redacted to the extent necessary and the pleading or exhibit
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`filed publicly with the Court.
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`18.
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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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`19.
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`A Party may request in writing to the other Party that the designation given to any
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`DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does
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`not agree to re-designation within ten (10) business days of receipt of the written request,
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`the requesting Party may apply to the Court for relief. Upon any such application to the
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`Court, the burden shall be on the designating Party to show why its classification is proper.
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`Such application shall be treated procedurally as a motion to compel pursuant to Federal
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`Rule of Civil Procedure 37, subject to the Rule’s provisions relating to sanctions. In
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`making such application, the requirements of the Federal Rules of Civil Procedure and the
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`Local Rules of the Court shall be met. Pending the Court’s determination of the
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`application, the designation of the designating Party shall be maintained.
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`20.
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`Each outside consultant or expert, as defined above in paragraph 5(e), to whom
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`DESIGNATED MATERIAL is disclosed in accordance with the terms of this Order shall
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`be advised by counsel of the terms of this Order, shall be informed that they are subject to
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`the terms and conditions of this Order, and shall sign an acknowledgment that they have
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`received a copy of, have read, and have agreed to be bound by this Order. A copy of
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`Case 6:20-cv-01212-ADA Document 65 Filed 03/10/22 Page 14 of 19
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`the acknowledgment form is attached as Appendix A.
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`21.
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`To the extent that any discovery is taken of persons who are not Parties to this Action
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`(“Third Parties”) and in the event that such Third Parties contend the discovery sought
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`involves trade secrets, confidential business information, or other proprietary information,
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`then such Third Parties may agree to be bound by this Order.
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`22.
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`To the extent that discovery or testimony is taken of Third Parties, the Third Parties or any
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`other Party may designate as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
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`EYES ONLY,” or “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY,” and/or
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`“CONFIDENTIAL - SOURCE CODE” any documents, information, or other material, in
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`whole or in part, produced by such Third Parties. The Third Parties shall have ten (10)
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`business days after production of such documents, information, or other materials to make
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`such a designation. Until that time period lapses or until such a designation has been made,
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`whichever occurs sooner, all documents, information, or other material so produced or given
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`shall be treated as “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY” in
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`accordance with this Order.
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`23. Within thirty (30) calendar days of final termination of this Action, including any
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`appeals, all DESIGNATED MATERIAL, including all copies, duplicates, abstracts,
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`indexes, summaries, descriptions, and excerpts or extracts thereof (excluding excerpts or
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`extracts incorporated into any privileged memoranda of the Parties), shall at the producing
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`Party’s election either be returned to the producing Party or be destroyed. The receiving
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