Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 1 of 20
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`WACO DIVISION
`
`DODOTS LICENSING SOLUTIONS LLC,
`
`
`
`Plaintiff,
`
`
`v.
`
`SAMSUNG ELECTRONICS CO., LTD.,
`SAMSUNG ELECTRONICS AMERICA,
`INC., BEST BUY STORES, L.P.,
`BESTBUY.COM, LLC, AND BEST BUY
`TEXAS.COM, LLC,
`
`
`
`
`Defendants.
`
`Civil Action No. 6:22-cv-00535-ADA
`
`
`
`AGREED PROTECTIVE ORDER
`
`WHEREAS, DoDots Licensing Solutions LLC (“Plaintiff”), and Defendants Samsung
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`Electronics Co., Ltd. and Samsung Electronics America, Inc. (collectively, “Samsung”), Best Buy
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`Stores, L.P., Bestbuy.com, LLC, and Best Buy Texas.com, LLC (collectively, “Best Buy” and,
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`together with Samsung, “Defendants”), hereafter referred to as “the Parties,” believe that certain
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`information that is or will be encompassed by discovery demands by the Parties involves the
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`production or disclosure of trade secrets, confidential business information, or other proprietary
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`information;
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`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
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`Federal 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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`1
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 2 of 20
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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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`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
`
`- SOURCE CODE”
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`(“DESIGNATED MATERIAL”),1 subject to the provisions herein and unless otherwise
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`
`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer to the
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`2
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 3 of 20
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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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`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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`Written discovery, documents (which include “electronically stored information,” as that
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`phrase is used in Federal Rule of Procedure 34), and tangible things that meet the
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`requirements for the confidentiality designations may be so designated by placing the
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`appropriate designation on every page of the written material prior to production. For
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`digital files being produced, the Producing Party may mark each viewable page or image
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`with the appropriate designation, and mark the medium, container, and/or communication
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`in which the digital files were contained. In the event that original documents are produced
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`for inspection, the original documents shall be presumed “CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY” during the inspection and re-designated, as appropriate
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`during the copying process.
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`5.
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`Where electronic files and documents are produced in native electronic format, such
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`electronic files and documents shall be designated for protection under this Order by
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`appending to the file names or designators information indicating whether the file contains
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`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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`3
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 4 of 20
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`“CONFIDENTIAL,”
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`CONFIDENTIAL-ATTORNEYS’
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`EYES
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`ONLY,”
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`“CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL -
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`SOURCE CODE” material, or shall use any other reasonable method for so designating
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`Protected Materials produced in electronic format.
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`6.
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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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`7.
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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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`(b)
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`Outside counsel of record in this Action for the Parties.2
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`Employees of such counsel assigned to and reasonably necessary to assist such
`
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`2 This include Outside Counsel’s immediate paralegals and staff, and any copying or clerical
`litigation support services working at the direction of such counsel, paralegals, and staff.
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`4
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 5 of 20
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`
`
`
`
`
`
`(c)
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`(d)
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`(e)
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`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 provided that each such
`person has agreed to be bound by the provisions of the Protective Order by signing
`a copy of Appendix A; and (b), 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 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, provided that the producing Party is
`a Party to this litigation. 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.
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`8.
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`A Party shall designate documents, information, or material as “CONFIDENTIAL” only
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`5
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 6 of 20
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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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`9.
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`Documents, information, or material produced pursuant to any discovery request in this
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`Action, including but not limited to Protected Material designated as DESIGNATED
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`MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not
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`be used for any other purpose. Any person or entity who obtains access to DESIGNATED
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`MATERIAL or the contents thereof pursuant to this Order shall not make any copies,
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`duplicates, extracts, summaries, or descriptions of such DESIGNATED MATERIAL or any
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`portion thereof except as may be reasonably necessary in the litigation of this Action. Any
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`such copies, duplicates, extracts, summaries, or descriptions shall be classified
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`DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
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`10.
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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 to the extent such Protected Material includes computer
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`source code and/or live data (that is, data as it exists residing in a database or databases)
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`(“Source Code Material”), the producing Party may designate such Protected Material as
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`“CONFIDENTIAL - SOURCE CODE.”
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`11.
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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–g); provided, however, that access by in-house counsel pursuant
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 7 of 20
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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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`12.
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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 7(a–b) and (e–g); provided, however, that the designating Party shall
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`accommodate reasonable requests to provide summary information to in-house counsel
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`designated pursuant to paragraph 7(c) who exercise no competitive decision-making
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`authority on behalf of the client and reasonably require access to such information.
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`13.
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`For Protected Material designated CONFIDENTIAL - SOURCE CODE, the following
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`additional restrictions apply:
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`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 (at the producing Party’s choice though
`reasonable efforts will be made to accommodate the reviewing Party’s preference)
`(i) a printer, or (ii) a device capable of temporarily storing electronic copies solely
`for the limited purposes permitted pursuant to paragraphs 13(k and q) below.
`Additionally, except as provided in paragraph 13(q) below, the stand-alone
`computer(s) may only be located at the offices of the producing Party’s outside
`counsel or its vendors.
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`No recordable media or recordable devices, including without limitation sound
`recorders, cellular telephones, peripheral equipment, cameras, CDs, DVDs, or
`drives of any kind, shall be permitted into the Source Code review room. However,
`reviewers are specifically allowed to bring notepads, paper, pencils, and pens into
`the Source Code review room for the sole purpose of taking notes. Reviewers shall
`also be allowed to bring into the review room notes, case files, memos, documents,
`pleadings, or the like. Upon reasonable advance request by the receiving Party, the
`producing Party will provide a non-networked laptop that allows the receiving
`Party to take typed notes in the Source Code review room. The receiving Party
`shall have the option of either printing out the notes or removing the notes on a
`thumb drive and then deleting the notes off the laptop at the end of each review
`day.
`
`(a)
`
`(b)
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`
`
`(c)
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`The receiving Party shall make reasonable efforts to restrict its requests for such
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 8 of 20
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`
`
`
`
`
`
`(d)
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`(e)
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`
`(f)
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`(g)
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`access to the stand-alone computer(s) to normal business hours, which for purposes
`of this paragraph shall be 9:00 a.m. through 5:00 p.m. However, upon reasonable
`notice from the receiving Party, the producing Party shall make reasonable efforts to
`accommodate the receiving Party’s request for access to the stand-alone computer(s)
`outside of normal business hours. 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.
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`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).
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`The producing Party will produce Source Code Material in computer searchable
`format on the stand-alone computer(s) as described above.
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`The receiving Party’s outside counsel and/or experts shall be entitled to take notes
`relating to the Source Code Material but may not copy the Source Code Material
`into the notes and may not take such notes electronically on the stand-alone
`computer itself.
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`Access to Source Code Material shall be limited to outside counsel 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. 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.
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`(h)
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`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.
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`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).
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 9 of 20
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`
`
`
`
`
`
`(i)
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`(j)
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`(k)
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`(l)
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`Except as set forth in paragraph 13(q) below, no photographs, images, scans, or
`other 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. Images or copies of Source Code Material shall not be included in
`the body of correspondence between the Parties (references to production numbers
`shall be used instead). If Source Code Material is included on pleadings or other
`papers, those papers must be designated CONFIDENTIAL – SOURCE CODE.
`
`The receiving Party shall be permitted to make a reasonable number of printouts and
`photocopies of Source Code Material, which shall presumptively be a total of ten
`(10), 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.
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`Should such printouts or photocopies be permissibly transferred back to electronic
`media, such media shall be labeled “CONFIDENTIAL - SOURCE CODE” and
`shall continue to be treated as such..
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`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 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 or
`photocopies (e.g., a hotel prior to a Court proceeding or deposition).
`
`(m) A producing Party’s Source Code Material may only be transported by the receiving
`Party at the direction of a person authorized under paragraph 13(i) above to another
`person authorized under paragraph 13(i) above, (a) on paper in a sealed envelope
`or (b) with the producing Party’s consent, password-protected removable
`electronic media (e.g., a DVD, CD-ROM, or flash memory “stick”) 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.
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`14.
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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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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 10 of 20
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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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`acquisition, preparation, or prosecution of any patent application pertaining to the field of
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`the invention of the patents-in-suit during the pendency of this Action and for one year after
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`its conclusion, including any appeals. To ensure compliance with the purpose of this
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`provision, each Party shall create an “Ethical Wall” between those persons with access to
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`HIGHLY SENSITIVE MATERIAL and any individuals who , prepare, prosecute,
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`supervise or assist in the , preparation, or prosecution of any patent application pertaining to
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`the field of invention of the patent-in-suit. Nothing in this Order shall prevent a person
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`with access to HIGHLY SENSITIVE MATERIAL from participating in a PTO
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`proceeding, e.g., IPR or PGR, except for that person shall not participate—directly or
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`indirectly—in the amendment of any claim(s).
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`15.
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`Protected Material may only be stored on a computing device installed with a current
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`version of industry-standard anti-virus software (e.g., Norton, McAfee, ESET, Kapersky,
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`Trend Micro, etc.) that includes safeguards to prevent the installation of unauthorized
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`software. Access to Protected Material shall be disabled in a virtual setting, such as when
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`using application virtualization software (i.e., Citrix). Virtual remote access to Protected
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`Material using a personal or non-professionally managed computing device must be
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`configured so that no files may be downloaded or transferred over the virtual remote access
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`tool directly to a non-compliant computing device.
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`16.
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`Nothing in this Order shall be construed to prevent counsel from advising their clients with
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 11 of 20
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`respect to this case based in whole or in part upon Protected Materials, provided counsel
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`does not disclose the Protected Material itself except as provided in this Order.
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`17.
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`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
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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,
`
`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
`
`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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`18.
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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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`19.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use any
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`11
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 12 of 20
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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, addressee,
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`or copy recipient of such information; (iii) although not identified as an author, addressee,
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`or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
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`business, seen such DESIGNATED MATERIAL; (iv) a current or former officer, director
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`or employee of the producing Party or a current or former officer, director, or employee
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`of a company affiliated with the producing Party; (v) counsel for a Party, including outside
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`counsel and in-house counsel (subject to paragraph 9 of this Order); (vi) an independent
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`contractor, consultant, and/or expert retained for the purpose of this litigation; (vii) court
`
`reporters and videographers; (viii) the Court; or (ix) other persons entitled hereunder to
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`access to DESIGNATED MATERIAL.
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` DESIGNATED MATERIAL shall not be
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`disclosed to any other persons unless prior authorization is obtained from counsel
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`representing the producing Party or from the Court.
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`20.
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`Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
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`deposition or hearing transcript, designate the deposition or hearing transcript or any portion
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`thereof as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,”
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`“CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL -
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`SOURCE CODE” pursuant to this Order. Access to the deposition or hearing transcript so
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`designated shall be limited in accordance with the terms of this Order. Until expiration of
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`the 30-day period, the entire deposition or hearing transcript shall be treated as
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`CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY.
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 13 of 20
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`21.
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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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`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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`22.
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`The 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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`23.
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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) days of receipt of the written request, the
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`requesting Party may apply to the Court for relief. Upon any such application to the Court,
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`the burden shall be on the designating Party to show why its classification is proper. Such
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`application shall be treated procedurally as a motion to compel pursuant to Federal Rule
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`of Civil Procedure 37, subject to the Rule’s provisions relating to sanctions. In making
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`such application, the requirements of the Federal Rules of Civil Procedure and the Local
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`Rules of the Court shall be met. Pending the Court’s determination of the application, the
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`designation of the designating Party shall be maintained.
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 14 of 20
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`24.
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`Each outside consultant or expert to whom DESIGNATED MATERIAL is disclosed in
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`accordance with the terms of this Order shall be advised by counsel of the terms of this
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`Order, shall be informed that they are subject to the terms and conditions of this Order, and
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`shall sign an acknowledgment that they have received a copy of, have read, and have
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`agreed to be bound by this Order. A copy of the acknowledgment form is attached as
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`Appendix A.
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`25.
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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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`26.
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`To the extent that discovery or testimony is taken of Third Parties, the Third Parties may
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`designate as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’ EYES ONLY,”
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`or “CONFIDENTIAL
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`- 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) days
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`after production of such documents, information, or other materials to make such a
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`designation.
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`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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`27. Within ninety (90) days of final termination of this Action, including any appeals,
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`all DESIGNATED MATERIAL, including all copies, duplicates, abstracts, indexes,
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`summaries, descriptions, and excerpts or extracts thereof (excluding excerpts or extracts
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`Case 6:22-cv-00535-ADA Document 91 Filed 07/11/23 Page 15 of 20
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`incorporated into any privileged memoranda of the Parties), shall at the producing Party’s
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`election either be returned to the producing Party or be destroyed. The receiving Party
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`shall verify the return or destruction by affidavit furnished to the producing Party, upon
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`the producing Party’s request. Notwithstanding the provisions for return of Discovery
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`Material, outside counsel may retain one set of pleadings, correspondence and attorney
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`and consultant work product (but not document productions) for archival purposes, but
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`must return or destroy any pleadings, correspondence, and consultant work product that
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`contain material designated as “CONFIDENTIAL,” “CONFIDENTIAL - ATTORNEYS’
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`EYES ONLY,” or “CONFIDENTIAL - OUTSIDE ATTORNEYS’ EYES ONLY -
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`SOURCE CODE.” Each party must return or destroy any archival copies no later than
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`five (5) years after the Final Disposition of this case.
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`28.
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`In the event any Party encounters a Data Breach (a security incident that involves the
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`exposure, loss, theft, destruction, or alteration of information, whether either intentional
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`or accidental; such incidents encompass thos