Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 1 of 18
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`
`ADVANCED SILICON TECHNOLOGIES
`LLC,
`
`
`Plaintiff,
`
`CIVIL ACTION NO. 6:22-CV-0466-ADA-DTG
`
`
`
`JURY TRIAL DEMANDED
`
`
`
`
`
`v.
`
`NXP SEMICONDUCTORS N.V., NXP B.V.,
`AND NXP USA, INC.,
`
`
`Defendants.
`
`
`
`
`
`AGREED PROTECTIVE ORDER
`
`WHEREAS, Plaintiff Advanced Silicon Technologies LLC (“AST”) and Defendants NXP
`
`Semiconductors N.V., NXP B.V., and NXP USA, Inc. (collectively, “NXP”), hereafter referred to
`
`as “the Parties,” believe that certain information that is or will be encompassed by discovery
`
`demands by the Parties involves the production or disclosure of trade secrets, confidential business
`
`information, or other proprietary information;
`
`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
`
`Federal Rule of Civil Procedure 26(c):
`
`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
`
`1.
`
`Each Party may designate as confidential for protection under this Order, in whole or in part,
`
`any document, information, or material that constitutes or includes, in whole or in part,
`
`confidential or proprietary information or trade secrets of the Party or a Third Party to whom
`
`the Party reasonably believes it owes an obligation of confidentiality with respect to such
`
`document, information, or material (“Protected Material”). Protected Material shall be
`
`designated by the Party producing it by affixing a legend or stamp on such document,
`
`information, or material as follows: “CONFIDENTIAL.” The word “CONFIDENTIAL”
`
`
`
`1
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 2 of 18
`
`shall be placed clearly on each page of the Protected Material (except deposition and hearing
`
`transcripts and natively produced documents) for which such protection is sought. For
`
`deposition and hearing transcripts, the word “CONFIDENTIAL” shall be placed on the
`
`cover page of the transcript (if not already present on the cover page of the transcript when
`
`received from the court reporter) by each attorney receiving a copy of the transcript
`
`after that attorney receives notice of the designation of some or all of that transcript as
`
`“CONFIDENTIAL.” For natively produced Protected Material, the appropriate
`
`designation shall be placed in the filename of each such natively produced document, and
`
`included on a slip-sheet when produced in hardcopy.
`
`2.
`
`Any document produced before issuance of this Order, including pursuant to the Court’s
`
`Order Governing Proceedings - Patent Case, with the designation “Confidential” or the like
`
`shall receive the same treatment as if designated “CONFIDENTIAL” under this order and
`
`any such documents produced with the designation “Confidential - Outside Attorneys’
`
`Eyes Only” shall receive the same treatment as if designated “CONFIDENTIAL -
`
`OUTSIDE ATTORNEYS’ EYES ONLY” under this Order, unless and until such document
`
`is re-designated to have a different classification under this Order.
`
`3.
`
`With respect to documents, information, or material designated “CONFIDENTIAL,”
`
`“CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” “CONFIDENTIAL - OUTSIDE
`
`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL
`
`- SOURCE CODE”
`
`(“DESIGNATED MATERIAL”),1 subject to the provisions herein and unless otherwise
`
`stated, this Order governs, without limitation: (a) all documents, electronically stored
`
`
`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.
`
`
`
`2
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 3 of 18
`
`information, and/or things as defined by the Federal Rules of Civil Procedure; (b) all
`
`pretrial, hearing or deposition testimony, or documents marked as exhibits or for
`
`identification in depositions and hearings; (c) pretrial pleadings, exhibits to pleadings and
`
`other court filings; (d) affidavits; and (e) stipulations. All copies, reproductions, extracts,
`
`digests, and complete or partial summaries prepared from any DESIGNATED
`
`MATERIALS shall also be considered DESIGNATED MATERIAL and treated as such
`
`under this Order.
`
`4.
`
`A designation of Protected Material (i.e., “CONFIDENTIAL,” “CONFIDENTIAL -
`
`ATTORNEYS’ EYES ONLY,” “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
`
`ONLY,” or “CONFIDENTIAL - SOURCE CODE”) may be made at any time. Inadvertent
`
`or unintentional production of documents, information, or material that has not been
`
`designated as DESIGNATED MATERIAL shall not be deemed a waiver in whole or in part
`
`of a claim for confidential treatment. Any Party that inadvertently or unintentionally
`
`produces Protected Material without designating it as DESIGNATED MATERIAL may
`
`request destruction of that Protected Material by notifying the recipient(s) as soon as
`
`reasonably possible after the producing Party becomes aware of the inadvertent or
`
`unintentional disclosure, and providing replacement Protected Material that is properly
`
`designated.
`
` The recipient(s) shall then destroy all copies of the inadvertently or
`
`unintentionally produced Protected Materials and any documents, information, or material
`
`derived from or based thereon.
`
`5.
`
`“CONFIDENTIAL” documents, information, and material may be disclosed only to the
`
`following persons, except upon receipt of the prior written consent of the designating Party,
`
`upon order of the Court, or as set forth in paragraph 15 herein:
`
`(a)
`
`Outside counsel of record in this Action for the Parties.
`
`
`
`3
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 4 of 18
`
`(b)
`
`(c)
`
`(d)
`
`(e)
`
`Employees of such counsel assigned to and reasonably necessary to assist such
`counsel in the litigation of this Action.
`
`In-house counsel for the Parties who either have responsibility for making decisions
`dealing directly with the litigation of this Action, or who are assisting outside
`counsel in the litigation of this Action and who have read and agree in writing to
`be bound by this Order.
`
`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.
`
`Outside consultants or experts (i.e., not existing employees or affiliates of a Party or
`an affiliate of a Party) retained for the purpose of this litigation, provided that: (1)
`such consultants or experts are not presently employed by the Parties 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
`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) 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)
`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.
`
`(f)
`
`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.
`
`(g)
`
`The Court and its personnel.
`
`6.
`
`A Party shall designate documents, information, or material as “CONFIDENTIAL” only
`
`upon a good faith belief that the documents, information, or material should be protected
`
`
`
`4
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 5 of 18
`
`from public disclosure because such information contains confidential or proprietary
`
`information or trade secrets of the Party or a Third Party to whom the Party reasonably
`
`believes it owes an obligation of confidentiality with respect to such documents,
`
`information, or material.
`
`7.
`
`Documents, information, or material produced pursuant to any discovery request in this
`
`Action, including but not limited to Protected Material designated as DESIGNATED
`
`MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not
`
`be used for any other purpose. Any person or entity who obtains access to DESIGNATED
`
`MATERIAL or the contents thereof pursuant to this Order shall not make any copies,
`
`duplicates, extracts, summaries, or descriptions of such DESIGNATED MATERIAL or any
`
`portion thereof except as may be reasonably necessary in the litigation of this Action. Any
`
`such copies, duplicates, extracts, summaries, or descriptions shall be classified
`
`DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
`
`8.
`
`To the extent a producing Party believes that certain Protected Material qualifying to be
`
`designated CONFIDENTIAL is so sensitive that its dissemination deserves even further
`
`limitation, the producing Party may designate such Protected Material “CONFIDENTIAL
`
`- ATTORNEYS’ EYES ONLY,” or to the extent such Protected Material includes computer
`
`source code (e.g., a text listing of computer instructions, commands and data definitions
`
`expressed in a form suitable for input to an assembler, compiler, or other translator), RTL
`
`code (i.e., register transfer level code that may define structure or operation of hardware),
`
`object code listings and descriptions of object code, data residing in a database or
`
`databases, including mask and layout files (e.g., GDS, .sip formats), process flow
`
`documents and/or recipes, documents titled and known within NXP as “design rule
`
`manuals”, and/or live data (that is, data as it exists residing in a database or databases)
`
`
`
`5
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 6 of 18
`
`(“Source Code Material”), the producing Party may designate such Protected Material as
`
`“CONFIDENTIAL - SOURCE CODE.”
`
`9.
`
`For Protected Material designated CONFIDENTIAL - ATTORNEYS’ EYES ONLY,
`
`access to, and disclosure of, such Protected Material shall be limited to individuals listed
`
`in paragraphs 5(a–c) and (e–g); provided, however, that access by in-house counsel pursuant
`
`to paragraph 5(c) be limited to in-house counsel who exercise no competitive decision-
`
`making authority on behalf of the client.
`
`10.
`
`For Protected Material designated CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES
`
`ONLY, access to, and disclosure of, such Protected Material shall be limited to individuals
`
`listed in paragraphs 5(a–b) and (e–g); provided, however, that the designating Party shall
`
`accommodate reasonable requests to provide summary information to in-house counsel
`
`designated pursuant to paragraph 5(c) who exercise no competitive decision-making
`
`authority on behalf of the client and reasonably require access to such information.
`
`11.
`
`For Protected Material designated CONFIDENTIAL - SOURCE CODE, the following
`
`additional restrictions apply:
`
`(a)
`
`Access to a Party’s Source Code Material shall be provided only on “stand-alone”
`computer(s) (that is, the computer may not be linked to any network, including a
`local area network (“LAN”), an intranet or the Internet). The stand-alone
`computer(s) may be connected to (i) a printer, or (ii) a device capable of temporarily
`storing electronic copies solely for the limited purposes permitted pursuant to
`paragraphs 11(h and k) below. Each review computer shall, at the receiving Party’s
`request, include reasonable analysis tools for the type of Source Code Material
`provided thereon. The receiving Party shall be responsible for providing tools or
`licenses to tools that it wishes to use so that the producing Party may use reasonable
`efforts to install such tools on the review computers. Additionally, except as
`provided in paragraph 11(k) below, the stand-alone computer(s) may only be
`located at the offices of the producing Party’s outside counsel or its vendors.
`
`(b)
`
`The receiving Party shall make reasonable efforts to restrict its requests for such
`access to the stand-alone computer(s) to normal business hours, which for purposes
`of this paragraph shall be 8:00 a.m. through 6:00 p.m. local time. However, upon
`reasonable notice from the receiving Party, the producing Party shall make
`
`
`
`6
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 7 of 18
`
`reasonable efforts to accommodate the receiving Party’s request for access to the
`stand-alone computer(s) outside of normal business hours. Requests for access
`shall be made with at least two (2) business days’ notice, and at least five (5) days’
`notice for the initial inspection of the Source Code Materials. 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 its vendors shall not unreasonably
`hinder the receiving Party’s ability to efficiently and effectively conduct the
`prosecution or defense of this Action.
`
`(c)
`
`(d)
`
`The producing Party shall provide the receiving Party with information explaining
`how to start, log on to, and operate the stand-alone computer(s) in order to access the
`produced Source Code Material on the stand-alone computer(s).
`
`The producing Party will produce Source Code Material in computer searchable
`format on the stand-alone computer(s) as described above.
`
`
`
`(e)
`
`Access to Source Code Material shall be limited to Outside Counsel of record in
`this Action2 and up to three (3) outside consultants or experts3 (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. Each person authorized to access CONFIDENTIAL – SOURCE CODE
`may take handwritten notes related to source code review; provided, however, that,
`outside of the inspection, such notes are securely stored by the receiving Party in a
`manner consistent with the provisions of this Order. No outside electronic devices
`shall be permitted in the secure room, including but not limited to laptops, floppy
`drives, zip drives, cellular telephones, personal digital assistants, Blackberries,
`cameras, voice recorders, Dictaphones, or telephone jacks. Nor shall any non-
`electronic devices capable of similar functionality be permitted in the secure room.
`During review of CONFIDENTIAL – SOURCE CODE, the receiving Party
`(including its consultants and experts) shall be entitled to take notes relating to the
`CONFIDENTIAL – SOURCE CODE but may not copy more than ten (10)
`consecutive lines of the CONFIDENTIAL – SOURCE CODE into the notes, and
`may not copy more than twelve (12) lines from any contiguous group of one
`hundred (100) lines of the CONFIDENTIAL – SOURCE CODE. No copies of all
`or any portion of the CONFIDENTIAL – SOURCE CODE may leave the room in
`which the CONFIDENTIAL – SOURCE CODE is inspected except as otherwise
`provided herein. Further, no other written or electronic record of the
`
`2 For the purposes of this paragraph, Outside Counsel of record in this Action is defined to
`include the Outside Counsel of record in this Action’s staff and other support personnel
`employed by and working at the direction of such Outside Counsel of record in this Action.
`3 For the purposes of this paragraph, an outside consultant or expert is defined to include the outside
`consultant’s or expert’s direct reports and other support personnel, such that the disclosure to a
`consultant or expert who employs others within his or her firm to help in his or her analysis shall
`count as a disclosure to a single consultant or expert, provided that such personnel helping in the
`analysis of Source Code Material shall be disclosed pursuant to Paragraph 5(e).
`
`
`
`7
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 8 of 18
`
`(f)
`
`(g)
`
`(h)
`
`CONFIDENTIAL – SOURCE CODE is permitted except as otherwise provided
`herein. 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 the Source Code Exhibits are appropriately marked
`under this Order, restricted to those who are entitled to have access to them as
`specified herein, and, if filed with the Court, filed under seal in accordance with the
`Court’s rules, procedures, and orders.
`
`To the extent portions of Source Code Material are quoted 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 Source
`Code Material will be separately stamped and treated as CONFIDENTIAL -
`SOURCE CODE.
`
`Except as set forth in paragraph 11(k) below, no electronic copies of Source Code
`Material shall be made without prior written consent of the producing Party, except
`as necessary to create documents that, pursuant to the Court’s rules, procedures,
`and order, must be filed or served electronically.
`
`The receiving Party shall be permitted to make a reasonable number of printouts and
`photocopies of Source Code Material received from the producing Party, which
`shall presumptively be a total of ten (10) photocopies, including documents
`reflecting information about Source Code Material, all of which shall be designated
`and clearly labeled “CONFIDENTIAL - SOURCE CODE,” and the receiving Party
`shall maintain a log of all such files that are printed or photocopied. During an
`inspection as described in 10(a), a party reviewing CONFIDENTIAL – SOURCE
`CODE may create PDF files of portions of the source code that are stored on the
`review computer(s), subject to the limitations herein. Such a party may request
`hardcopy production of such PDF files by the producing Party. If the producing
`Party objects that the portions of the code identified for printing are excessive
`and/or not done for a permitted purpose, the producing Party shall object in writing
`to the receiving Party within three (3) business days. The Parties shall meet and
`confer within four (4) business day of any such objection. If after meeting and
`conferring the producing Party and the receiving Party cannot resolve the objection,
`the objections may be submitted to the Court for resolution within five (5) business
`days of the meet and confer. The producing Party shall have the burden to move
`the Court and show that the printed portions are excessive and/or not done for a
`permitted purpose. Contested source code printouts need not be produced to the
`receiving Party until the matter is resolved by agreement or Court order, provided
`however that the producing Party’s failure to submit its objections to the Court for
`resolution within the time prescribed above shall be deemed a waiver of those
`objections, and the requested printouts must be overnighted via mail or otherwise
`provided within three (3) business days of the meet and confer. Otherwise, the
`producing Party shall overnight mail or otherwise provide copies of all printouts
`within three (3) business days of printing.
`
`(i)
`
`Should such printouts or photocopies be permissibly transferred back to electronic
`media, such media shall be labeled “CONFIDENTIAL - SOURCE CODE” and
`
`
`
`8
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 9 of 18
`
`shall continue to be treated as such.
`
`(j)
`
`If the receiving Party’s outside counsel, consultants, or experts obtain printouts or
`photocopies of Source Code Material, the receiving Party shall ensure that such
`outside counsel, consultants, or experts keep the printouts or photocopies in a
`secured locked area in the offices of such outside counsel, consultants, or expert.
`The receiving Party may also temporarily keep the printouts or photocopies at: (i) the
`Court for any proceeding(s) relating to the Source Code Material, for the dates
`associated with the proceeding(s); (ii) the sites where any deposition(s) relating to
`the Source Code Material are taken, for the dates associated with the deposition(s);
`and (iii) any intermediate location reasonably necessary to transport the printouts or
`photocopies (e.g., a hotel prior to a Court proceeding or deposition).
`
`(k)
`
`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, on paper via hand carry,
`Federal Express, or other similarly reliable courier. Source Code Material may not
`be transported or transmitted electronically over a network of any kind, including a
`LAN, an intranet, or the Internet. Source Code Material may not be transported
`electronically by a receiving Party. The producing Party shall, on reasonable
`request, make one of the review computers containing the Source Code Material,
`or a secure laptop computer containing the Source Code Material, available at Court
`proceedings or depositions of witnesses who would otherwise be permitted access
`to the review computers. The receiving Party shall make such requests ten (10)
`calendar days before the deposition. A producing Party shall make reasonable
`efforts to comply with such a request made less than ten (10) calendar days before
`a deposition, provided the request is made in good faith and could not reasonably
`under the circumstances have been made sooner.
`
`Any attorney representing a Party, whether in-house or outside counsel, and any person
`
`associated with a Party and permitted to receive the other Party’s Protected Material that is
`
`designated CONFIDENTIAL - ATTORNEYS’ EYES ONLY, CONFIDENTIAL -
`
`OUTSIDE ATTORNEYS’ EYES ONLY, and/or CONFIDENTIAL - SOURCE CODE
`
`and directed to technical information relevant to the case, but excluding financial data or
`
`non-technical business information (collectively “HIGHLY SENSITIVE MATERIAL”),
`
`who obtains, receives, reviews, or otherwise learns, in whole or in part, the other Party’s
`
`HIGHLY SENSITIVE MATERIAL under this Order shall not prepare, prosecute,
`
`supervise, or assist in the preparation or prosecution of any patent application pertaining to
`
`9
`
`
`12.
`
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 10 of 18
`
`the field of the invention of the patents-in-suit during the pendency of this Action and for
`
`one year after its conclusion, including any appeals. To ensure compliance with the purpose
`
`of this provision, each Party shall create an “Ethical Wall” between those persons with
`
`access to HIGHLY SENSITIVE MATERIAL and any individuals who prepare, prosecute,
`
`supervise, or assist in the preparation or prosecution of any patent application pertaining to
`
`the field of invention of the patents-in-suit. Nothing in this Order shall prevent a person
`
`with access to HIGHLY SENSITIVE MATERIAL from participating in a PTO
`
`proceeding, e.g., IPR or PGR, except for that person shall not participate—directly or
`
`indirectly—in the amendment of any claim(s).
`
`13.
`
`Nothing in this Order shall require production of documents, information, or other material
`
`that a Party contends is protected from disclosure by the attorney-client privilege, the work
`
`product doctrine, or other privilege, doctrine, or immunity. If documents, information, or
`
`other material subject to a claim of attorney-client privilege, work product doctrine, or other
`
`privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
`
`production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
`
`any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
`
`produces documents, information, or other material it reasonably believes are protected under
`
`the attorney-client privilege, work product doctrine, or other privilege, doctrine, or immunity
`
`may obtain the return of such documents, information, or other material by promptly
`
`notifying the recipient(s) and providing a privilege log for the inadvertently or
`
`unintentionally produced documents, information, or other material. The recipient(s) shall
`
`immediately gather and return all copies of such documents, information, or other material
`
`to the producing Party, except for any pages containing privileged or otherwise protected
`
`markings by the recipient(s), which pages shall instead be destroyed and certified as
`
`
`
`10
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 11 of 18
`
`such to the producing Party. After notice is provided, no use shall be made of such material
`
`during deposition or at trial, or for any other purpose or in any other manner, nor shall such
`
`material be shown to anyone except as necessary to facilitate the return or destruction of
`
`such documents or information. If any such inadvertently produced material has been used
`
`in any other document generated in connection with the Action, including deposition
`
`transcripts, exhibits, and court filings, to the extent reasonably possible, the material shall
`
`be expunged or destroyed. The producing Party shall include the documents in a privilege
`
`log identifying such inadvertently produced or disclosed documents. The receiving Party
`
`may move the Court for an order compelling production of any inadvertently produced or
`
`disclosed privileged documents or information, but the motion shall not assert as a ground
`
`for production the fact of the inadvertent production or disclosure.
`
`14.
`
`There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized
`
`to have access thereto to any person who is not authorized for such access under this Order.
`
`The Parties are hereby ORDERED to safeguard all such documents, information, and
`
`material to protect against disclosure to any unauthorized persons or entities.
`
`15.
`
`Nothing contained herein shall be construed to prejudice any Party’s right to use any
`
`DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
`
`the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
`
`access to the DESIGNATED MATERIAL by virtue of his or her employment with the
`
`designating Party; (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
`
`or copy recipient of such information; (iii) although not identified as an author, addressee,
`
`or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
`
`business, seen such DESIGNATED MATERIAL; (iv) a current or former officer, director
`
`or employee of the producing Party or a current or former officer, director, or employee of
`
`
`
`11
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 12 of 18
`
`a company affiliated with the producing Party; (v) counsel for a Party, including outside
`
`counsel and in-house counsel (subject to paragraph 9 of this Order); (vi) an independent
`
`contractor, consultant, and/or expert retained for the purpose of this litigation (subject to
`
`paragraph 5(e) of this Order); (vii) court reporters and videographers; (viii) the Court; or
`
`(ix) other persons entitled hereunder to access to DESIGNATED MATERIAL.
`
`DESIGNATED MATERIAL shall not be disclosed to any other persons unless prior
`
`authorization is obtained from counsel representing the producing Party or from the Court.
`
`16.
`
`Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
`
`deposition or hearing transcript, designate the deposition or hearing transcript or any portion
`
`thereof as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,”
`
`“CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL -
`
`SOURCE CODE” pursuant to this Order. Access to the deposition or hearing transcript so
`
`designated shall be limited in accordance with the terms of this Order. Until expiration of
`
`the 30-day period, the entire deposition or hearing transcript shall be treated as
`
`CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY.
`
`17.
`
`Any DESIGNATED MATERIAL that is filed with the Court shall be filed under seal and
`
`shall remain under seal until further order of the Court. The filing Party shall be responsible
`
`for informing the Clerk of the Court that the filing should be sealed and for placing the
`
`legend “FILED UNDER SEAL PURSUANT TO PROTECTIVE ORDER” above the
`
`caption and conspicuously on each page of the filing. Exhibits to a filing shall conform
`
`to the labeling requirements set forth in this Order. If a pretrial pleading filed with the
`
`Court, or an exhibit thereto, discloses or relies at least in part on DESIGNATED
`
`MATERIAL, portions of the pleading or exhibit disclosing or relying on such
`
`DESIGNATED MATERIAL shall be redacted to the extent necessary and the pleading or
`
`
`
`12
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1 Filed 09/01/22 Page 13 of 18
`
`exhibit filed publicly with the Court.
`
`18.
`
`This Order applies to pretrial discovery. Nothing in this Order shall be deemed to prevent
`
`the Parties from introducing any DESIGNATED MATERIAL into evidence at the trial of
`
`this Action, or from using any information contained in DESIGNATED MATERIAL at
`
`the trial of this Action, subject to any pretrial order issued by this Court.
`
`19.
`
`A Party may request in writing to the other Party that the designation given to any
`
`DESIGNATED MATERIAL be modified or withdrawn. If the designating Party does not
`
`agree to re-designation within ten (10) days of receipt of the written request, the requesting
`
`Party may apply to the Court for relief. Upon any such application to the Court, the burden
`
`shall be on the designating Party to show why its classification is proper. Such application
`
`shall be treated procedurally as a motion to compel pursuant to Federal Rule of Civil
`
`Procedure 37, subject to the Rule’s provisions relating to sanctions. In making such
`
`application, the requirements of the Federal Rules of Civil Procedure and the Local Rules
`
`of the Court shall be met. Pending the Court’s determination of the application, the
`
`designation of the designating Party shall be maintained.
`
`20.
`
`Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in
`
`accordance with the terms of this Order shall be advised by counsel of the terms of this
`
`Order, shall be informed that he or she is subject to the terms and conditions of this Order,
`
`and shall sign an acknowledgment that he or she has received a copy of, has read, and has
`
`agreed to be bound by this Order. A copy of the acknowledgment form is attached as
`
`Appendix A.
`
`21.
`
`To the extent that any discovery is taken of persons who are not Parties to this Action
`
`(“Third Parties”) and in the event that such Third Parties contend the discovery sought
`
`involves trade secrets, confidential business information, or other proprietary information,
`
`
`
`13
`
`
`

`

`Case 6:22-cv-00466-ADA-DTG Document 43-1