Case 6:21-cv-00916-ADA-DTG Document 57 Filed 05/23/22 Page 1 of 5
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`RFCYBER CORP.,
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`v.
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`APPLE, INC.,
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`Plaintiff,
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
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`Case No. 6:21-cv-00916-ADA
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`JURY TRIAL DEMANDED
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`Defendant.
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`RFCYBER CORP.’S REPLY IN FURTHER
`SUPPORT OF ITS OPPOSED MOTION FOR ENTRY OF
`DISPUTED PROTECTIVE ORDER (DKT. 45)
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`Case 6:21-cv-00916-ADA-DTG Document 57 Filed 05/23/22 Page 2 of 5
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`Plaintiff RFCyber Corp. (“RFCyber” or “Plaintiff”), by and through its undersigned
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`counsel, respectfully submits this Reply in Further Support of its Opposed Motion for Entry of
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`Disputed Protective Order (Dkt. 45) (“Motion”).
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`The Court’s default protective order reflects carefully considered compromises between
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`the need for efficient and workable discovery and the parties’ security concerns, and effectively
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`balances those concerns. Recognizing those compromises, and the work that the Court put into the
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`default protective order, RFCyber’s proposal closely tracks the Court’s default protective order.
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`RFCyber’s proposal should be adopted because it reflects the same considerations.
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`RFCyber proposes only two disputed modification of the Court’s default protective
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`order.First, RFCyber would require that the source code computer include “a full-size keyboard,
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`mouse, and two monitors.” It is reasonable to require these peripherals, and their presence will
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`help both parties by accelerating review. Moreover, Apple’s source code computers are typically
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`laptops bound inside a briefcase that prevents comfortable use of the keyboard. While Apple has
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`offered to unlock the USB ports of the laptop, it is impracticable and unreasonable for code
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`reviewers to travel with their own monitors and other peripherals, and it remains unclear whether
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`unlocking USB ports would even allow connection of monitors. Second, RFCyber would codify a
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`procedure for adding review software to the source code computer. This provision is necessary
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`because Apple has taken the position that the Court’s default protective order does not require it
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`to install any requested review software. These modifications follow the spirit of the Court’s
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`default order and are necessary in view of Apple’s positions.
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`On the other hand, Apple’s proposal completely rewrites the Court’s default protective
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`order, more than doubling its length and adding a slew of unworkable restrictions, without
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`identifying any legitimate interest served by these modifications. Apple’s proposals regarding
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`Case 6:21-cv-00916-ADA-DTG Document 57 Filed 05/23/22 Page 3 of 5
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`prosecution and acquisition bars, and post-suit monitoring requirements for experts are both
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`unworkable, and so burdensome that they appear designed to deter experts and consultants from
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`taking work against Apple. Apple’s proposed source code restrictions would also make code
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`review practically impossible while drastically increasing the burden on the receiving party. Apple
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`also fails to show why the source code at issue is any more sensitive than the source code already
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`contemplated in the Court’s default protective order – it cannot. Apple’s other modifications serve
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`only to complicate the protective order and add needless burden. Apple fails to identify any
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`legitimate concerns advanced by these over-restrictive provisions which are not already squarely
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`addressed by the Court’s default protective order, instead suggesting that it is automatically
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`entitled to additional protections because it is Apple. Apple’s proposal should be rejected.
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`Apple also wrongly suggests that the parties were not at a true impasse. Apple disregards
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`the absolutely clear record that, after extensive correspondence and a lengthy meet and confer
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`teleconference with lead counsel, it refused to agree to virtually every substantive provision of
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`RFCyber’s proposal mirroring the Court’s default protective order. Given its argument, Apple
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`apparently failed to treat that proposal as legitimate at all.
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`Finally, Apple’s only update to its proposal in view of the Court’s guidance at the hearing
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`on the Interim Protective Order was to depart further from the Court’s default protective order by
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`deleting section 5(d). Apple fails to justify this departure.
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`RFCyber therefore respectfully requests that the Court enter its proposed protective order.
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`Dated: May 23, 2022
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`Respectfully submitted,
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` /s/Jacob Ostling
`Raymond W. Mort, III
`Texas State Bar No. 00791308
`Email: raymort@austinlaw.com
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`Case 6:21-cv-00916-ADA-DTG Document 57 Filed 05/23/22 Page 4 of 5
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`THE MORT LAW FIRM, PLLC
`100 Congress Avenue, Suite 2000
`Austin, Texas 78701
`Tel/Fax: 512-865-7950
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`OF COUNSEL:
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`Alfred R. Fabricant (Admitted Pro Hac Vice)
`NY Bar No. 2219392
`Email: ffabricant@fabricantllp.com
`Peter Lambrianakos (Admitted Pro Hac Vice)
`NY Bar No. 2894392
`Email: plambrianakos@fabricantllp.com
`Vincent J. Rubino, III (Admitted Pro Hac Vice)
`NY Bar No. 4557435
`Email: vrubino@fabricantllp.com
`Richard M. Cowell (Admitted Pro Hac Vice)
`NY Bar No. 4617759
`Email: rcowell@fabricantllp.com
`Jacob Ostling (Admitted Pro Hac Vice)
`NY Bar No. 5684824
`Email: jostling@fabricantllp.com
`FABRICANT LLP
`411 Theodore Fremd Avenue, Suite 206 South
`Rye, New York 10580
`Telephone: (212) 257-5797
`Facsimile: (212) 257-5796
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`ATTORNEYS FOR PLAINTIFF
`RFCYBER CORP.
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`Case 6:21-cv-00916-ADA-DTG Document 57 Filed 05/23/22 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I hereby certify that on May 23, 2022, I electronically filed the foregoing with the Clerk of
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`Court using the CM/ECF system, which will send notification of such filing via electronic mail to
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`all counsel of record. Any other counsel of record will be served by first class U.S. mail.
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`/s/Jacob Ostling
` Jacob Ostling
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