Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 1 of 18
`
`
`
`
`THE HONORABLE JAMES L. ROBART
`
`
`
`
`
`
`
`
`
`
`
`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
`
` CASE NO. 2:17-cv-00932-JLR
`
`
`
`STIPULATED PROTECTIVE ORDER
`
`JURY TRIAL DEMANDED
`
`NOTE ON MOTION CALENDAR:
`JUNE 4, 2018
`
`
`CYWEE GROUP LTD.,
`
` Plaintiff,
`
`v.
`
`HTC CORPORATION
`and
`HTC AMERICA, INC.,
`
` Defendants.
`
`1.
`
`PURPOSES AND LIMITATIONS
`Discovery in this action is likely to involve production of confidential, proprietary, or
`private information for which special protection may be warranted. Accordingly, the parties hereby
`stipulate to and petition the court to enter the following Stipulated Protective Order. The parties
`acknowledge that this agreement is consistent with LCR 26(c). It does not confer blanket
`protection on all disclosures or responses to discovery, the protection it affords from public
`disclosure and use extends only to the limited information or items that are entitled to confidential
`treatment under the applicable legal principles, and it does not presumptively entitle parties to file
`confidential information under seal.
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 1
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 2 of 18
`
`
`
`
`2.
`
`“CONFIDENTIAL” MATERIAL
`“Confidential” material shall include the following documents and tangible things
`produced or otherwise exchanged that constitute or include, in whole or in part, confidential or
`proprietary information or trade secrets including, but not limited to, source code, product design
`files, engineering specifications, confidential financial information and customer information of
`any party hereto or any third party whom a party reasonably believes it owes an obligation of
`confidentiality with respect to such document, information or material.
`3.
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY” MATERIAL
`“Highly Confidential – Attorneys’ Eyes Only” material shall include extremely sensitive
`“Confidential Information or Items,” disclosure of which to another party or non-party would
`create a substantial risk of serious harm that could not be avoided by less restrictive means.
`4.
`“HIGHLY CONFIDENTIAL – SOURCE CODE” MATERIAL
`“Highly Confidential – Source Code” material shall include extremely sensitive
`“Confidential Information or Items” representing computer code, physical design files and
`associated comments and revision histories, formulas, engineering specifications, recipes, run
`sheets, or schematics that define or otherwise describe in detail the algorithms or structure of
`software or hardware designs, disclosure of which to another party or non-party would create a
`substantial risk of serious harm that could not be avoided by less restrictive means.
`5.
`SCOPE
`The protections conferred by this agreement cover not only confidential material (as
`defined above), but also (1) any information copied or extracted from confidential material; (2) all
`copies, excerpts, summaries, or compilations of confidential material; and (3) any testimony,
`conversations, or presentations by parties or their counsel that might reveal confidential material.
`However, the protections conferred by this agreement do not cover information that is in
`the public domain or becomes part of the public domain other than as a result of a disclosure by
`the receiving party in violation of this Order, including through trial or otherwise.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 2
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 3 of 18
`
`
`
`
`6.
`
`ACCESS TO AND USE OF CONFIDENTIAL MATERIAL
`6.1
`Basic Principles. A receiving party may use confidential material that is disclosed
`or produced by another party or by a non-party in connection with this case only for prosecuting,
`defending, or attempting to settle this litigation. Confidential material may be disclosed only to the
`categories of persons and under the conditions described in this agreement. Confidential material
`must be stored and maintained by a receiving party at a location and in a secure manner that ensures
`that access is limited to the persons authorized under this agreement.
`6.2
`Disclosure of “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –ATTORNEYS’
`EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE” Information or Items. Unless
`otherwise ordered by the court or permitted in writing by the designating party, a receiving party
`may disclose any confidential material only to:
`(a)
`the receiving party’s outside counsel of record in this action, as well as
`employees of counsel to whom it is reasonably necessary to disclose the information for this
`litigation;
`
`the officers, directors, and employees (including in-house counsel) of the
`(b)
`receiving party to whom disclosure is reasonably necessary for this litigation, unless a particular
`document or material produced is designated “HIGHLY CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” or “HIGHLY CONFIDENTIAL – SOURCE CODE” and is so designated;
`(c)
`one designated in-house counsel of the receiving party to whom disclosure
`is reasonably necessary for litigation and who have signed the “Acknowledgment and Agreement
`to Be Bound” (Exhibit A);
`(d)
`experts and consultants to whom disclosure is reasonably necessary for this
`litigation and who have signed the “Acknowledgment and Agreement to Be Bound” (Exhibit A);
`(e)
`the court, court personnel, and court reporters and their staff;
`(f)
`copy or imaging services retained by counsel to assist in the duplication of
`confidential material, provided that counsel for the party retaining the copy or imaging service
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 3
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 4 of 18
`
`
`
`
`instructs the service not to disclose any confidential material to third parties and to immediately
`return all originals and copies of any confidential material;
`(g)
`during their depositions, witnesses in the action to whom disclosure is
`reasonably necessary and who have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A), unless otherwise agreed by the designating party or ordered by the court. Pages of
`transcribed deposition testimony or exhibits to depositions that reveal confidential material must
`be separately bound by the court reporter and may not be disclosed to anyone except as permitted
`under this agreement;
`the author or recipient of a document containing the information or a
`(h)
`custodian or other person who otherwise possessed or knew the information.
`6.3
`Filing Confidential Material. Before filing confidential material or discussing or
`referencing such material in court filings, the filing party shall confer with the designating party
`to determine whether the designating party will remove the confidential designation, whether the
`document can be redacted, or whether a motion to seal or stipulation and proposed order is
`warranted. Local Civil Rule 5(g) sets forth the procedures that must be followed and the standards
`that will be applied when a party seeks permission from the court to file material under seal. The
`ability to file confidential materials is not contingent upon the Court granting any sealing request.
`7.
`DESIGNATING PROTECTED MATERIAL
`7.1
`Exercise of Restraint and Care in Designating Material for Protection. Each party
`or non-party that designates information or items for protection under this agreement must take
`care to limit any such designation to specific material that qualifies under the appropriate
`standards. The designating party must designate for protection only those parts of material,
`documents, items, or oral or written communications that qualify, so that other portions of the
`material, documents, items, or communications for which protection is not warranted are not swept
`unjustifiably within the ambit of this agreement.
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 4
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 5 of 18
`
`
`
`
`Mass, indiscriminate, or routinized designations are prohibited. Designations that are
`shown to be clearly unjustified or that have been made for an improper purpose (e.g., to
`unnecessarily encumber or delay the case development process or to impose unnecessary expenses
`and burdens on other parties) expose the designating party to sanctions.
`If it comes to a designating party’s attention that information or items that it designated for
`protection do not qualify for protection, the designating party must promptly notify all other parties
`that it is withdrawing the mistaken designation.
`7.2 Manner and Timing of Designations. Except as otherwise provided in this
`agreement (see, e.g., second paragraph of section 5.2(a) below), or as otherwise stipulated or
`ordered, disclosure or discovery material that qualifies for protection under this agreement must
`be clearly so designated before or when the material is disclosed or produced.
`(a)
`Information in documentary form: (e.g., paper or electronic documents and
`deposition exhibits, but excluding transcripts of depositions or other pretrial or trial proceedings),
`the designating party must affix the word or phrases “CONFIDENTIAL,” “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE
`CODE” to each page that contains confidential material. If only a portion or portions of the
`material on a page qualifies for protection, the producing party also must clearly identify the
`protected portion(s) (e.g., by making appropriate markings in the margins).
` (b) Other tangible items: the producing party must affix in a prominent place
`on the exterior of the container or containers in which the information or item is stored the word
`or phrases “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,”
`or “HIGHLY CONFIDENTIAL – SOURCE CODE.” If only a portion or portions of the
`information or item warrant protection, the producing party, to the extent practicable, shall identify
`the protected portion(s).
`A party or non-party that makes original documents or materials available for
`inspection need not designate them for protection until after the inspecting party has indicated
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 5
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 6 of 18
`
`
`
`
`which material it would like copied and produced. During the inspection and before the
`designation, all of the material made available for inspection shall be deemed “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY.” After the inspecting party has identified the
`documents it wants copied and produced, the producing party must determine which documents,
`or portions thereof, qualify for protection under this Order. Then, before producing the specified
`documents, the producing party must affix the appropriate legend (“CONFIDENTIAL,”
`“HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL
`– SOURCE CODE”) to each page of the document.
`(c) Testimony given in deposition or in other pretrial or trial proceedings: A party
`or non-party shall identify on the record, before the close of the deposition, hearing, or other
`proceeding, all protected testimony and specify the level of protection being asserted. When it is
`impractical to identify separately each portion of testimony that is entitled to protection and it
`appears that substantial portions of the testimony may qualify for protection, the designating party
`may invoke on the record (before the deposition, hearing, or other proceeding is concluded) a right
`to have up to thirty (30) days to identify the specific portions of the testimony as to which
`protection is sought and to specify the level of protection being asserted. Only those portions of
`the testimony that are appropriately designated for protection within the thirty (30) days shall be
`covered by the provisions of this Stipulated Protective Order. Alternatively, a party may specify,
`at the deposition or up to thirty (30) days afterwards if that period is properly invoked, that the
`entire transcript shall be treated as “CONFIDENTIAL” or “HIGHLY CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY.”
`Parties shall give the other parties notice if they reasonably expect a deposition,
`hearing or other proceeding to include protected material so that the other parties can ensure that
`only authorized individuals who have signed the “Acknowledgment and Agreement to Be Bound”
`(Exhibit A) are present at those proceedings. The use of a document as an exhibit at a deposition
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 6
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 7 of 18
`
`
`
`
`shall not in any way affect its designation as “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL
`– ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE.”
`Transcripts containing protected material shall have an obvious legend on the title
`the
`transcript contains “CONFIDENTIAL,” “HIGHLY CONFIDENTIAL –
`that
`page
`ATTORNEYS’ EYES ONLY,” or “HIGHLY CONFIDENTIAL – SOURCE CODE,” and the title
`page shall be followed by a list of all pages (including line numbers as appropriate) that have been
`designated as protected material and the level of protection being asserted by the designating party.
`The designating party shall inform the Court reporter of these requirements. Any transcript that is
`prepared before the expiration of a thirty (30) day period for designation shall be treated during
`that period as if it had been designated “HIGHLY CONFIDENTIAL – ATTORNEYS’ EYES
`ONLY” in its entirety unless otherwise agreed. After the expiration of that period, the transcript
`shall be treated only as “CONFIDENTIAL,” or as otherwise designated.
`7.3
`Inadvertent Failures to Designate. If timely corrected, an inadvertent failure to
`designate qualified information or items does not, standing alone, waive the designating party’s
`right to secure protection under this agreement for such material. Upon timely correction of a
`designation, the receiving party must make reasonable efforts to ensure that the material is treated
`in accordance with the provisions of this agreement.
`8.
`SOURCE CODE
`8.1
`To the extent production of source code becomes necessary in this case, a producing
`party may designate source code as “HIGHLY CONFIDENTIAL – SOURCE CODE” if it
`comprises or includes confidential, proprietary, or trade secret source code.
`8.2
`Protected material designated as “HIGHLY CONFIDENTIAL – SOURCE CODE”
`shall be subject to all of the protections afforded to “HIGHLY CONFIDENTIAL – ATTORNEYS’
`EYES ONLY” information and may be disclosed only to the individuals to whom “HIGHLY
`CONFIDENTIAL – ATTORNEYS’ EYES ONLY” information may be disclosed, as set forth in
`the paragraphs of section 7.2.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 7
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 8 of 18
`
`
`
`
`Any source code produced in discovery shall be made available for inspection, in
`8.3
`its native format (e.g., GDS files) so that it can be reasonably reviewed and searched, during
`normal business hours or at other mutually agreeable times, at an office of the producing party’s
`counsel. Computer source code (such as, but not limited to Java and C++ code) will be made
`available for inspection in its native format. The source code shall be made available for inspection
`on a secured computer in a secured room without Internet access or network access to other
`computers, and the receiving party shall not copy, remove, or otherwise transfer any portion of the
`source code onto any recordable media or recordable device. The producing party shall install tools
`that are sufficient for viewing and searching the code produced, on the platform produced. The
`parties may further confer on installing additional tools for viewing and searching the code
`produced.
`The producing party shall install tools that are sufficient for viewing and searching the
`Source Code on the Source Code Computer, including a text editor that is capable of printing
`out Source Code with page and/or line numbers and a multi-file text search tool such as
`“grep.” The receiving party’s outside counsel and/or experts may request that software tools
`for viewing and searching Source Code be installed on the secured computer, provided,
`however, that:
`
`(i) the receiving party possesses or obtains an appropriate license to such
`software tools;
`(ii) the producing party approves such software tools, which approval shall not
`be unreasonably withheld; and
`(iii) such other software tools are reasonably necessary for the receiving party to
`perform its review of the Source Code consistent with all of the protections
`herein. Specific tools may include but are not limited to: Notepad++, PowerGrep,
`DTSearch, the default packages of the Cygwin program.
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 8
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 9 of 18
`
`
`
`
`The receiving party must provide the producing party with the CD, DVD, download
`link or equivalent for such licensed software tool(s) at least five (5) days in advance of the date
`upon which the receiving party wishes to have the additional software tools available for use on
`the Source Code Computer, but producing party shall use best efforts to accommodate less
`notice. The receiving party shall not at any time use any compilers, interpreters, or simulators
`in connection with the supplier’s Source Code. Nor shall any cellular telephones, smartphones,
`personal digital assistants, Blackberries, cameras, sound recorders, Dictaphones, telephone
`jacks, or other devices be permitted inside the secure room. No non-electronic devices capable
`of similar functionality shall be permitted in the secure room.
` The producing party may visually monitor the activities of the receiving party’s
`representatives during any source code review, but only to ensure that there is no unauthorized
`recording, copying, or transmission of the source code.
`8.4
`The receiving party shall provide at least seven (7) days’ notice to the producing
`party prior to any inspection of source code. No more than a total of twenty-five individuals
`identified by the receiving party shall have access to the secure room. Immediately prior to each
`grant of access to the secure room or the source code, each authorized person shall provide proper
`identification for the producing party or the producing party’s counsel to verify identity. Proper
`identification requires showing, at a minimum, a photo identification card sanctioned by the
`government of any State of the United States or by the nation state of the authorized person’s
`current citizenship. Access to the secure room or the source code may be denied, at the discretion
`of the producing party, to any individual who fails to provide proper identification.
`8.5
`The receiving party may request paper copies of limited portions of source code
`that appear reasonably necessary for the preparation of court filings, in-depth review, infringement
`or invalidity contentions, pleadings, expert reports, or other papers, or for deposition or trial, but
`shall not request paper copies for the purposes of reviewing the source code other than
`electronically as set forth in paragraph 8.3(c) in the first instance. The producing party shall
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 9
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 10 of 18
`
`
`
`
`provide all such source code in paper form including bates numbers and the label “HIGHLY
`CONFIDENTIAL - SOURCE CODE.” The amount of source code requested in hard copy format
`must be reasonable in length. If the producing party objects that the printed portions are excessive
`and/or not done for a permitted purpose, the producing party shall make such objection known to
`the receiving party within five (5) days of the request. If, after meeting and conferring, the
`producing party and the receiving party cannot resolve the objection, the producing party may
`challenge the amount of source code requested in hard copy form pursuant to the dispute resolution
`procedure and timeframes set forth in section 8. Printouts of physical design files shall continue to
`be deemed “HIGHLY CONFIDENTIAL – SOURCE CODE” pursuant to paragraph 4 above.
`8.6
`At the request of the receiving party, up to ten (10) copies of the original source
`code printouts on watermarked paper shall be made for outside counsel of record for the receiving
`party within seven (7) days. The producing party shall provide all such source code in paper form
`including bates numbers and the label “HIGHLY CONFIDENTIAL – SOURCE CODE.” It is the
`responsibility of the producing party to ensure delivery of the printed documents. The receiving
`party and its outside counsel of record shall not make any further copies of the requested printouts
`unless otherwise agreed to by the parties.
`8.7
`In addition to other reasonable steps to maintain the security and confidentiality of
`the producing party’s source code, printed copies of the source code maintained by the receiving
`party must be kept in a locked storage container when not in use. No electronic copies of the source
`code shall be provided by the producing party beyond the source code on the secured computer.
`8.8
`The receiving party shall not create any electronic or other images of the paper
`copies and shall not convert any of the information contained in the paper copies into any electronic
`format (including, by way of example only, the receiving party may not scan the confidential
`source code to a PDF or photograph the code).
`8.9
`Images, copies, and excerpts of the source code shall not be included in
`correspondence between the parties (references to production numbers shall be used instead). A
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 10
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 11 of 18
`
`
`
`
`receiving party may include excerpts of source code in a pleading, exhibit, expert report,
`infringement contention, invalidity contention, discovery document, deposition transcript, other
`Court document, provided (a) that the specific excerpt is no larger than necessary and (b) that the
`source code documents are appropriately marked under this Order, restricted to those who are
`entitled to have access to them as specified herein, and, if filed with the Court, filed under seal in
`accordance with the Court's rules, procedures, and orders. To the extent portions of source code
`material are quoted in a source code document, either (1) the entire source code document will be
`stamped and treated as “HIGHLY CONFIDENTIAL – SOURCE CODE” or (2) those pages
`containing quoted source code material will be separately stamped and treated as “HIGHLY
`CONFIDENTIAL – SOURCE CODE.”
`8.10
`If the receiving party wishes to use printed copies of source code as deposition
`exhibits, the Parties shall meet and confer in advance of such depositions in order to determine a
`mutually agreeable arrangement under which printed copies of source code may be used as
`deposition exhibits. Copies of source code that are marked as deposition exhibits shall not be
`provided to the court reporter or attached to deposition transcripts; rather, the deposition record
`will identify the exhibit by its production numbers. The transcript for any deposition in which the
`contents of any source code are discussed shall be designated “[PRODUCING PARTY’S NAME]
`HIGHLY CONFIDENTIAL – SOURCE CODE – SUBJECT TO PROTECTIVE ORDER.”
`8.11 Unless otherwise agreed in advance by the Parties in writing, following each day
`on which inspection is done under this Order, the receiving party’s outside counsel of record and/or
`experts shall remove all notes, documents, and all other materials from the secure room. The
`producing party shall not be responsible for any items left in the room following each inspection
`session, and the receiving party shall have no expectation of confidentiality for any items left in
`the room following each inspection session without a prior agreement to that effect.
`8.12 The receiving party shall maintain a source code access log identifying each hard
`copy of the source code that it has in its possession and, for each and every time the hard copy of
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 11
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 12 of 18
`
`
`
`
`the source code is viewed: (i) the name of each person who viewed the source code and (ii) the
`date and time of access. The producing party shall be entitled to a copy of the log upon two (2)
`days’ advance notice to the receiving party.
`8.13 Within thirty (30) days of the date of settlement or issuance of a final, non-
`appealable decision resolving all issues in this litigation, the receiving party will destroy all paper
`copies of the producing party’s source code. The receiving party shall use reasonable efforts to
`destroy documents containing information from the source code. Outside counsel of record of any
`party shall be entitled to retain copies of court papers (and exhibits thereto), correspondence,
`pleadings, deposition and trial transcripts (and exhibits thereto), expert reports and attorney work-
`product that contain or refer to source code provided that such counsel and employees of such
`counsel shall not disclose such source code to any person, except pursuant to court order. Within
`sixty (60) days of the date of settlement or final, non-appealable decision, the receiving party shall
`serve on the producing party a certification stating that it, including its Outside Counsel of Record
`and experts, has complied with its obligations under this paragraph and that they will make no use
`of the source code or of any knowledge gained from the source code in any future endeavor.
`8.14 Nothing herein shall be deemed a waiver of a party’s right to object to the
`production of source code. Absent a subsequent and specific court or agency order, nothing herein
`shall obligate a party to breach any non-party license agreement relating to such source code,
`unless ordered to produce such information from a court of competent jurisdiction.
`9.
`CHALLENGING CONFIDENTIALITY DESIGNATIONS
`9.1
`Timing of Challenges. Any party or non-party may challenge a designation of
`confidentiality at any time. Unless a prompt challenge to a designating party’s confidentiality
`designation is necessary to avoid foreseeable, substantial unfairness, unnecessary economic
`burdens, or a significant disruption or delay of the litigation, a party does not waive its right to
`challenge a confidentiality designation by electing not to mount a challenge promptly after the
`original designation is disclosed.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 12
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 13 of 18
`
`
`
`
`9.2 Meet and Confer. The parties must make every attempt to resolve any dispute
`regarding confidential designations without court involvement. Any motion regarding confidential
`designations or for a protective order must include a certification, in the motion or in a declaration
`or affidavit, that the movant has engaged in a good faith meet and confer conference with other
`affected parties in an effort to resolve the dispute without court action. The certification must list
`the date, manner, and participants to the conference. A good faith effort to confer requires a face-
`to-face meeting or a telephone conference.
`9.3
`Judicial Intervention. If the parties cannot resolve a challenge without court
`intervention, the designating party may file and serve a motion to retain confidentiality under Local
`Civil Rule 7 (and in compliance with Local Civil Rule 5(g), if applicable). The burden of
`persuasion in any such motion shall be on the designating party. Frivolous challenges, and those
`made for an improper purpose (e.g., to harass or impose unnecessary expenses and burdens on
`other parties) may expose the challenging party to sanctions. All parties shall continue to maintain
`the material in question as confidential until the court rules on the challenge.
`10.
`PROTECTED MATERIAL SUBPOENAED OR ORDERED PRODUCED IN OTHER
`LITIGATION
`If a party is served with a subpoena or a court order issued in other litigation that compels
`disclosure of any information or items designated in this action as “CONFIDENTIAL,” that party
`must:
`
`promptly notify the designating party in writing and include a copy of the
`(a)
`subpoena or court order;
`(b)
`promptly notify in writing the party who caused the subpoena or order to
`issue in the other litigation that some or all of the material covered by the subpoena or order is
`subject to this agreement. Such notification shall include a copy of this agreement; and
`(c)
`cooperate with respect to all reasonable procedures sought to be pursued by
`the designating party whose confidential material may be affected.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`
`STIPULATED PROTECTIVE ORDER
`CASE NO. 2:17-CV-932-JLR– 13
`
`
`
`
`SHORE CHAN DEPUMPO LLP
`901 MAIN STREET, SUITE 3300
`DALLAS, TX 75202
`TELEPHONE: 214-593-9110
`
`

`

`Case 2:17-cv-00932-JLR Document 95 Filed 06/04/18 Page 14 of 18
`
`
`
`
`11.
`
`UNAUTHORIZED DISCLOSURE OF PROTECTED MATERIAL
`If a receiving party learns that, by inadvertence or otherwise, it has disclosed confidential
`material to any person or in any circumstance not authorized under this agreement, the receiving
`party must immediately (a) notify in writing the designating party of the unauthorized disclosures,
`(b) use its best efforts to retrieve all unauthorized copies of the protected material, (c) inform the
`person or persons to whom unauthorized disclosures were made of all the terms of this agreement,
`and (d) request that such person or persons execute the “Acknowledgment and Agreement to Be
`Bound” that is attached hereto as Exhibit A.
`12.
`INADVERTENT PRODUCTION OF PRIVILEGED OR OTHERWISE PROTECTED
`MATERIAL
`When a producing party gives notice to receiving parties that certain inadvertently
`produced material is subject to a claim of privilege or other protection, the obligations of the
`receiving parties are those set forth in Federal Rule of Civil Procedure 26(b)(5)(B). This provision
`is not intended to modify w