Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 1 of 39 PageID# 481
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF VIRGINIA
`ALEXANDRIA DIVISION
`
`
`
`Plaintiff,
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`
`
`
`
`
`
`
`
`
`Civil Action No. 1:22-cv-1373
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`GEOSCOPE TECHNOLOGIES PTE. LTD.,
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`
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`v.
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`APPLE INC.,
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`
`
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`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`§
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`AGREED PROTECTIVE ORDER
`REGARDING THE DISCLOSURE AND USE OF DISCOVERY MATERIALS
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`Plaintiff Geoscope Technologies Pte. Ltd. (“Plaintiff”) and Defendant Apple Inc.
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`(“Defendant”) anticipate that documents, testimony, or information containing or reflecting
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`confidential, proprietary, trade secret, and/or commercially sensitive information are likely to
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`be disclosed or produced during the course of discovery, initial disclosures, and supplemental
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`disclosures in this case and request that the Court enter this Order setting forth the conditions
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`for treating, obtaining, and using such information.
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`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds
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`good cause for the following Agreed Protective Order Regarding the Disclosure and Use of
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`Discovery Materials (“Order” or “Protective Order”).
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`1.
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`PURPOSES AND LIMITATIONS
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`(a)
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`Protected Material designated under the terms of this Protective Order shall
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`be used by a Receiving Party solely for this case, and shall not be used directly or indirectly for
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`any other purpose whatsoever without the prior written consent of the Producing Party or upon
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`order of the Court.
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 2 of 39 PageID# 482
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`(b)
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`The Parties acknowledge that this Order does not confer blanket protections
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`on all disclosures during discovery, or in the course of making initial or supplemental disclosures
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`under Rule 26(a). Designations under this Order shall be made with care and shall not be made
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`absent a good faith belief that the designated material satisfies the criteria set forth below. If it
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`comes to a Producing Party’s attention that designated material does not qualify for protection at
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`all, or does not qualify for the level of protection initially asserted, the Producing Party must
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`promptly notify all other Parties that it is withdrawing or changing the designation.
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`2.
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`DEFINITIONS
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`(a)
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`“Discovery Material” means all items or information, including from any
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`non-party, regardless of the medium or manner generated, stored, or maintained (including, among
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`other things, testimony, transcripts, or tangible things) that are produced, disclosed, or generated
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`in connection with discovery or Rule 26(a) disclosures in this case.
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`(b)
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`“Outside Counsel” means (i) outside counsel who appear on the pleadings
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`as counsel for a Party and (ii) partners, associates, and staff of such counsel to whom it is
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`reasonably necessary to disclose the information for this litigation.
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`(c)
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`“Patents-in-suit” means U.S. Patent Nos. 7,561,104, 8,320,264, 8,400,358,
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`8,406,753, 8,786,494, 9,097,784, and any other patent asserted in this action, as well as any related
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`patents, patent applications, provisional patent applications, continuations, and/or divisionals.
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`(d)
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` “Party” means any party to this case, including all of its officers, directors,
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`employees, consultants, retained experts, and outside counsel and their support staffs.
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`(e)
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`“Producing Party” means any Party or non-party that discloses or produces
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`any Discovery Material in this case.
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 3 of 39 PageID# 483
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`(f)
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`“Protected Material” means any Discovery Material that is designated as
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
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`“HIGHLY CONFIDENTIAL - SOURCE CODE,” as provided for in this Order. Protected
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`Material shall not include: (i) advertising materials that have been actually published or publicly
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`disseminated; and (ii) materials that show on their face they have been disseminated to the public.
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`(g)
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`“Receiving Party” means any Party who receives Discovery Material from
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`a Producing Party.
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`(h)
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` “Source Code” means computer code, scripts, assembly, binaries, object
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`code, source code listings (e.g., file names and path structure), descriptions of source code (e.g.,
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`descriptions of declarations, functions, and parameters), object code listings and descriptions of
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`object code, Hardware Description Language (HDL) or Register Transfer Level (RTL) files that
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`describe the hardware design of any ASIC or other chip, and Computer Aided Design (CAD) files
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`that describe the hardware design of any component.
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`3.
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`
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`
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`COMPUTATION OF TIME
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`The computation of any period of time prescribed or allowed by this Order shall
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`be governed by the provisions for computing time set forth in Federal Rules of Civil
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`Procedure 6.
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`4.
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`SCOPE
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`(a)
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`The protections conferred by this Order cover not only Discovery Material
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`governed by this Order as addressed herein, but also any information copied or extracted
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`therefrom, as well as all copies, excerpts, summaries, or compilations thereof, plus testimony,
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`conversations, or presentations by Parties or their counsel in court or in other settings that might
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`reveal Protected Material.
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`(b)
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`Nothing in this Protective Order shall prevent or restrict a Producing Party’s
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`own disclosure or use of its own Protected Material for any purpose, and nothing in this Order
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`shall preclude any Producing Party from showing its Protected Material to an individual who
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`prepared the Protected Material.
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`(c)
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`Nothing in this Order shall be construed to prejudice any Party’s right to
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`use any Protected Material in court or in any court filing with the consent of the Producing Party
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`or by order of the Court.
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`(d)
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`This Order is without prejudice to the right of any Party to seek further or
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`additional protection of any Discovery Material or to modify this Order in any way, including,
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`without limitation, an order that certain matter not be produced at all.
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`5.
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`
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`DURATION
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`Even after the termination of this case, the confidentiality obligations imposed by
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`this Order shall remain in effect until a Producing Party agrees otherwise in writing or a court order
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`otherwise directs.
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`6.
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`ACCESS TO AND USE OF PROTECTED MATERIAL
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`(a)
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` Basic Principles. All Protected Material shall be used solely for
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`prosecuting, defending, or attempting to settle this case or any related appellate proceeding, and
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`not for any other purpose whatsoever, including without limitation any other litigation, patent
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`prosecution or acquisition, patent reexamination or reissue proceedings, or any business or
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`competitive purpose or function without the prior written consent of the Producing Party or upon
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`order of the Court.
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`(b)
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`Patent Prosecution Bar. Absent the written consent of the Producing Party,
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`any person on behalf of the Plaintiff who receives one or more items designated
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 5 of 39 PageID# 485
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`“CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
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`“HIGHLY CONFIDENTIAL –SOURCE CODE” by a Defendant shall not be involved, directly
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`or indirectly, in any of the following activities: (i) advising on, consulting on, preparing,
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`prosecuting, drafting, editing, and/or amending of patent applications, specifications, claims,
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`and/or responses to office actions, or otherwise affecting the scope of claims in patents or patent
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`applications relating to the geolocation of mobile devices using network signals (i.e., Wi-Fi,
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`cellular, and Bluetooth signals), including without limitation the patents asserted in this action and
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`any patent or application claiming priority to or otherwise related to the patents asserted in this
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`action, before any foreign or domestic agency, including the United States Patent and Trademark
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`Office; and (ii) the acquisition of patents (including patent applications), or the rights to any such
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`patents or patent applications with the right to sublicense, relating to the geolocation of mobile
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`devices using network signals (i.e., Wi-Fi, cellular, and Bluetooth signals). These prohibitions are
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`not intended to and shall not preclude counsel from participating in proceedings on behalf of a
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`Party challenging the validity of any patent, but are intended, inter alia, to preclude counsel from
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`participating directly or indirectly in reexamination, covered business method review, or reissue
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`proceedings on behalf of a patentee. To avoid any doubt, counsel of record in this action shall not
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`be prohibited from serving as counsel to Geoscope Technologies Pte. Ltd. in any inter partes
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`review proceeding involving any of the patents asserted in this action. These prohibitions shall
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`begin when access to “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” materials are first received by the
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`affected individual, and shall end two (2) years after the final resolution of this action, including
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`all appeals.
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 6 of 39 PageID# 486
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`(c)
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`Secure Storage, No Export. Protected Material must be stored and
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`maintained by a Receiving Party at a location in the United States and in a secure manner that
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`ensures that access is limited to the persons authorized under this Order. To ensure compliance
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`with applicable United States Export Administration Regulations, Protected Material may not be
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`exported outside the United States or released to any foreign national (even if within the United
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`States), except as permitted by 22(c).
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`(d)
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`Legal Advice Based on Protected Material. Nothing in this Protective Order
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`shall be construed to prevent counsel from advising their clients with respect to this case based in
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`whole or in part upon Protected Materials, provided counsel does not disclose the Protected
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`Material itself except as provided in this Order.
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`(e)
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`Limitations. Nothing in this Order shall restrict in any way a Producing
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`Party’s use or disclosure of its own Protected Material. Nothing in this Order shall restrict in any
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`way the use or disclosure of Discovery Material by a Receiving Party: (i) that is or has become
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`publicly known through no fault of the Receiving Party; (ii) that is lawfully acquired by or known
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`to the Receiving Party independent of the Producing Party; (iii) previously produced, disclosed
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`and/or provided by the Producing Party to the Receiving Party or a non-party without an
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`obligation of confidentiality and not by inadvertence or mistake; (iv) with the consent of the
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`Producing Party; or (v) pursuant to order of the Court.
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`7.
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`DESIGNATING PROTECTED MATERIAL
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`(a)
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`Available Designations. Any Producing Party may designate Discovery
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`Material with any of the following designations, provided that it meets the requirements for such
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`designations as provided for herein: “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL -
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`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 7 of 39 PageID# 487
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`(b) Written Discovery and Documents and Tangible Things. Written
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`discovery, documents (which include “electronically stored information,” as that phrase is used in
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`Federal Rule of Procedure 34), and tangible things that meet the requirements for the
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`confidentiality designations listed in Paragraph 7(a) may be so designated by placing the
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`appropriate designation on every page of the written material prior to production. For digital files
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`being produced, the Producing Party may mark each viewable page or image with the appropriate
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`designation, and mark the medium, container, and/or communication in which the digital files were
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`contained. In the event that original documents are produced for inspection, the original
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`documents shall be presumed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`during the inspection and re-designated, as appropriate during the copying process.
`(c) Native Files. Where electronic files and documents are produced in native
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`electronic format, such electronic files and documents shall be designated for protection under this
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`Order by appending to the file names or designators information indicating whether the file
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`contains “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY,” or
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`“HIGHLY CONFIDENTIAL - SOURCE CODE,” material, or shall use any other reasonable
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`method for so designating Protected Materials produced in electronic format. When electronic files
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`or documents are printed for use at deposition, in a court proceeding, or for provision in printed
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`form to an expert or consultant pre-approved pursuant to paragraph 12(b), the party printing the
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`electronic files or documents shall affix a legend to the printed document corresponding to the
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`designation of the Designating Party and including the production number and designation
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`associated with the native file. No one shall seek to use in this litigation a .tiff, .pdf or other image
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`format version of a document produced in native file format without first (1) providing a copy of
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`the image format version to the Producing Party so that the Producing Party can review the image
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 8 of 39 PageID# 488
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`to ensure that no information has been altered, and (2) obtaining the consent of the Producing
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`Party, which consent shall not be unreasonably withheld.
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`(d)
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`Depositions and Testimony. Parties or testifying persons or entities may
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`designate depositions and other testimony with the appropriate designation by indicating on the
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`record at the time the testimony is given or by sending written notice of how portions of the transcript
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`of the testimony is designated within fourteen (14) days of receipt of the transcript of the testimony.
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`If no indication on the record is made, all information disclosed during a deposition shall be
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`deemed “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” until the time within
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`which it may be appropriately designated as provided for herein has passed. Any Party that wishes
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`to disclose the transcript, or information contained therein, may provide written notice of its intent
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`to treat the transcript as non-confidential, after which time, any Party that wants to maintain any
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`portion of the transcript as confidential must designate the confidential portions within fourteen
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`(14) days, or else the transcript may be treated as non-confidential. Any Protected Material that is
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`used in the taking of a deposition shall remain subject to the provisions of this Protective Order,
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`along with the transcript pages of the deposition testimony dealing with such Protected Material.
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`In such cases the court reporter shall be informed of this Protective Order and shall be required to
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`operate in a manner consistent with this Protective Order. In the event the deposition is videotaped,
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`the original and all copies of the videotape shall be marked by the video technician to indicate that
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`the contents of the videotape are subject to this Protective Order, substantially along the lines of
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`“This videotape contains confidential testimony used in this case and is not to be viewed or
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`the contents thereof to be displayed or revealed except pursuant to the terms of the operative
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`Protective Order in this matter or pursuant to written stipulation of the parties.” Counsel for
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`any Producing Party shall have the right to exclude from oral depositions, other than the
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 9 of 39 PageID# 489
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`deponent, deponent’s counsel, the reporter and videographer (if any), any person who is not
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`authorized by this Protective Order to receive or access Protected Material based on the
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`designation of such Protected Material. Such right of exclusion shall be applicable only during
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`periods of examination or testimony regarding such Protected Material.
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`8.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL”
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`(a)
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`A Producing Party may
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`designate Discovery Material
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`as
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`“CONFIDENTIAL” if it contains or reflects confidential, proprietary, and/or commercially
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`sensitive information.
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`(b)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“CONFIDENTIAL” may be disclosed only to the following:
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`(i)
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`The Receiving Party’s Outside Counsel, such counsel’s immediate
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`paralegals and staff, and any copying or clerical litigation support services working at the direction
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`of such counsel, paralegals, and staff;
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`(ii)
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`Not more than three (3) representatives of the Receiving Party who
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`are officers or employees of the Receiving Party, who may be, but need not be, in-house counsel
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`for the Receiving Party, as well as their immediate paralegals and staff, to whom disclosure is
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`reasonably necessary for this case, provided that: (a) each such person has agreed to be bound by
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`the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no unresolved
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`objections to such disclosure exist after proper notice has been given to all Parties as set forth
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`in Paragraph 12 below;
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`(iii) Any outside expert or consultant retained by the Receiving Party to
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`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 10 of 39 PageID# 490
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`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
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`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
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`of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c)
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`such expert or consultant accesses the materials in the United States only, and does not transport
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`them to or access them from any foreign jurisdiction; and (d) no unresolved objections to such
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`disclosure exist after proper notice has been given to all Parties as set forth in Paragraph 12 below.
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`(iv) Court reporters, stenographers and videographers retained to record
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`testimony taken in this action;
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`(v)
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`The Court, jury, and court personnel;
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`(vi) Graphics, translation, design, and/or trial consulting personnel,
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`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
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`Exhibit A;
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`(vii) Mock jurors who have signed an undertaking or agreement agreeing
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`not to publicly disclose Protected Material and to keep any information concerning Protected
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`Material confidential;
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`(viii) Any mediator who is assigned to hear this matter, and his or her
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`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`(ix) During during their depositions, witnesses in the action to whom
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`disclosure is reasonably necessary and who have signed the “Acknowledgment and Agreement
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`to Be Bound” (Exhibit A). The Receiving Party shall provide the Producing Party notice at
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`least 3 business days in advance if it reasonably expects a deposition to include Protected
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`Material so that the Producing Party can ensure that only authorized individuals are present at
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 11 of 39 PageID# 491
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`those proceedings. Pages of transcribed deposition testimony or exhibits to depositions that
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`reveal Protected Material must be separately bound by the court reporter and may not be
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`disclosed to anyone except as permitted under this Stipulated Protective Order;
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`(x)
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`the author, signatory, or recipient of a document containing the
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`information or a custodian or other person who otherwise possessed or personally knows the
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`information;
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`(xi) Any other person with the prior written consent of the Producing
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`Party.
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`9.
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`DISCOVERY MATERIAL DESIGNATED AS “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY”
`
`(a)
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`A Producing Party may designate Discovery Material as “HIGHLY
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” if it contains or reflects information that is
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`extremely confidential and/or sensitive in nature and the Producing Party reasonably believes that
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`the disclosure of such Discovery Material is likely to cause economic harm or significant
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`competitive disadvantage to the Producing Party. The Parties agree that the following information,
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`if non-public, shall be presumed to merit the “HIGHLY CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY” designation: trade secrets, pricing information, financial data, sales information,
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`sales or marketing forecasts or plans, business plans, sales or marketing strategy, product
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`development information, engineering documents, testing documents, employee information, and
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`other non-public information of similar competitive and business sensitivity.
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`(b)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” may be disclosed only to:
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 12 of 39 PageID# 492
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`(i)
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`The Receiving Party’s Outside Counsel, provided that such Outside
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`Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
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`730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such
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`Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation support
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`services working at the direction of such counsel, paralegals, and staff;
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`(ii) With respect to Discovery Material produced by the Plaintiff, not
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`more than three (3) in-house counsel of the Receiving Party, as well as their immediate paralegals
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`and staff to whom disclosure is reasonably necessary for this case, provided that: (a) each such
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`person has agreed to be bound by the provisions of the Protective Order by signing a copy of
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`Exhibit A; and (b) no unresolved objections to such disclosure exist after proper notice has
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`been given to all Parties as set forth in Paragraph 12 below;
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`(iii) Any outside expert or consultant retained by the Receiving Party to
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`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
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`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
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`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
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`of retention to become an officer, director, or employee of a Party or of a competitor of a Party;
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`(c) such expert or consultant is not involved in competitive decision-making, as defined by U.S.
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`Steel v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a
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`competitor of a Party; (d) such expert or consultant accesses the materials in the United States
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`only, and does not transport them to or access them from any foreign jurisdiction; and (e) no
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`unresolved objections to such disclosure exist after proper notice has been given to all Parties as
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`set forth in Paragraph 12 below;
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 13 of 39 PageID# 493
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`(iv) Court reporters, stenographers and videographers retained to record
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`testimony taken in this action;
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`(v)
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`The Court, jury, and court personnel;
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`(vi) Graphics, translation, design, and/or trial consulting personnel,
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`having first agreed to be bound by the provisions of the Protective Order by signing a copy of
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`Exhibit A;
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`(vii) Any mediator who is assigned to hear this matter, and his or her
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`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order; and
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`(viii) During during their depositions, current employee witnesses of
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`one of the Parties to the Action to whom disclosure is reasonably necessary and who have
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`signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A). The Receiving Party
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`shall provide the Producing Party notice at least 3 business days in advance if it reasonably
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`expects a deposition to include Protected Material so that the Producing Party can ensure that
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`only authorized individuals are present at those proceedings. Pages of transcribed deposition
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`testimony or exhibits to depositions that reveal Protected Material must be separately bound
`
`by the court reporter and may not be disclosed to anyone except as permitted under this
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`Stipulated Protective Order
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`(ix)
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`the author, signatory, or recipient of a document containing the
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`information or a custodian or other person who otherwise possessed or personally knows the
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`information, unless that author, signatory or recipient is a former employee of a Party and that
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`Party objects to the disclosure based on a good faith belief that the former employee should no
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`longer have access to the document or its contents to protect its confidentiality.
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 14 of 39 PageID# 494
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`(x)
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`Any other person with the prior written consent of the Producing
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`Party.
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`(c)
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`In addition, a Party may disclose arguments and materials derived from
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`Discovery Material designated as “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
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`to mock jurors who have signed an undertaking or agreement agreeing not to publicly disclose
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`Protected Material and to keep any information concerning Protected Material confidential. A
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`Party may not disclose to mock jurors any original, as-produced materials or information
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`(including, for example, documents, deposition testimony, or interrogatory responses) produced
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`by another Party designated as “HIGHLY CONFIDENTIAL - ATTORNEYS’ EYES ONLY.”
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`10.
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`DISCOVERY MATERIAL DESIGNATED AS “HIGHLY CONFIDENTIAL
`– SOURCE CODE”
`
`(a)
`
`To the extent production of Source Code becomes necessary to the
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`prosecution or defense of the case, a Producing Party may designate Source Code as “HIGHLY
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`CONFIDENTIAL – SOURCE CODE” if it comprises or includes confidential, proprietary, and/or
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`trade secret Source Code.
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`(b)
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`Nothing in this Order shall be construed as a representation or admission
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`that Source Code is properly discoverable in this action, or to obligate any Party to produce any
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`Source Code.
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`(c)
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`Unless otherwise ordered by the Court, Discovery Material designated as
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`“HIGHLY CONFIDENTIAL – SOURCE CODE” shall be subject to the provisions set forth in
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`Paragraph 11 below, and may be disclosed, subject to Paragraph 11 below, solely to:
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`(i)
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`The Receiving Party’s Outside Counsel, provided that such Outside
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`Counsel is not involved in competitive decision-making, as defined by U.S. Steel v. United States,
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`730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a Party, and such
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 15 of 39 PageID# 495
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`Outside Counsel’s immediate paralegals and staff, and any copying or clerical litigation support
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`services working at the direction of such counsel, paralegals, and staff;
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`(ii)
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`Any outside expert or consultant retained by the Receiving Party to
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`assist in this action, provided that disclosure is only to the extent necessary to perform such work;
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`and provided that: (a) such expert or consultant has agreed to be bound by the provisions of the
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`Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a current
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`officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at the time
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`of retention to become an officer, director or employee of a Party or of a competitor of a Party; (c)
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`such expert or consultant is not involved in competitive decision-making, as defined by U.S. Steel
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`v. United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of
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`a Party; and (d) no unresolved objections to such disclosure exist after proper notice has been given
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`to all Parties as set forth in Paragraph 12 below;
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`(iii) Court reporters, stenographers and videographers retained to record
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`testimony taken in this action, provided that such reporters and videographers shall not retain or
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`be given copies of any portions of the source code, which if used during a deposition, will not be
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`attached as an exhibit to the transcript but instead shall be identified only by its production
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`numbers;
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`(iv)
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`The Court, jury, and court personnel;
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`(v)
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`Any mediator who is assigned to hear this matter, and his or her
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`staff, subject to their agreement to maintain confidentiality to the same degree as required by this
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`Protective Order;
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`(vi) while testifying at deposition or trial in this action only: (i) any
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`current officer, director, or employee of the Producing Party or original source of the information;
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`Case 1:22-cv-01373-MSN-JFA Document 50 Filed 04/04/23 Page 16 of 39 PageID# 496
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`(ii) any person designated by the Producing Party to provide testimony pursuant to Rule 30(b)(6)
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`of the Federal Rules of Civil Procedure; and/or (iii) any person who authored, previously received
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`(other than in connection with this litigation), or was directly involved in creating, modifying, or
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`editing the “HIGHLY CONFIDENTIAL SOURCE CODE” Information or Items, as evident from
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`its face or reasonably certain in view of other testimony or evidence. Persons authorized to view
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`“HIGHLY CONFIDENTIAL –SOURCE CODE” Information or Items pursuant to this sub-
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`paragraph shall not retain or be given copies of the “HIGHLY CONFIDENTIAL SOURCE
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`CODE” Information or Items except while so testifying. Only printed copies of the Source Code
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`will be provided to testifying witnesses during their testimony; and
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`(vii) Any other person with the prior written consent of the Producing
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`Party.
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`11. DISCLOSURE AND REVIEW OF SOURCE CODE
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`(a)
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`Any Source Code that is produced by Plaintiff shall be made available for
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`inspection in electronic format at the New York office of its outside counsel, Stroock & Stroock
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`& Lavan, or any other location mutually agreed by the Parties. Any Source Code that is produced
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`by Apple Inc. will be made available for inspection at the New York office of its outside counsel,
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`Gibson, Dunn & Crutcher, or any other location mutually agreed by the Parties. The parties agree
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`to cooperate in good faith such that maintaining the Producing Party’s source code in any location
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`described in this paragraph shall not unreasonably hinder the Receiving Party’s ability to
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`efficiently and effectively conduct the prosecution or defense of this matter. Source Code will be
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`made available for inspection between the hours of 8 a.m. and 6 p.m. local time on business days
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`(i.e., weekdays that are not Federal holidays), although the Parties will be reasonable in
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`accommodating reasonable requests to conduct inspections at other times.
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`(b)
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`Prior to the first inspection of any requested Source Code, the Receiving
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`Party shall provide seven (7) days notice of the Source Code that it wishes to inspect. The
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`Receiving Party shall provide three (3) days notice prior to any additional inspections.
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`(c)
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`Source Code that is designated “HIGHLY CONFIDENTIAL – SOURCE
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`CODE” shall be produced for inspection and review subject to the following provisions,
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`unless otherwise agreed by the Producing Party:
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`(i)
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`All Source Code shall be made available by the Producing Party to
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`the Receiving Party’s outside counsel and/or experts in a secure room on a secured computer
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`without Internet access or network access to other computers and on which all access ports have
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`been disabled (except for one USB port to which a printer may be connected), as necessary and
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`appropriate to prevent and protect against any unauthorized copying, transmission, removal or
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`other transfer of any Source Code outside or away from the computer on which the Source Code
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`is provided for inspection (the “Source Code Computer” in the “Source Code Review Room”).
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`The Source Code Computer laptop shall be reasonably configured to permit th