Case 1:17-cv-02097-RBJ Document 83 Filed 03/21/18 USDC Colorado Page 1 of 32
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`
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`REALTIME ADAPTIVE STREAMING LLC,
`
`
`Plaintiff,
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`v.
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`SLING TV, L.L.C.,
`SLING MEDIA, INC.,
`SLING MEDIA, L.L.C.,
`ECHOSTAR TECHNOLOGIES L.L.C.,
`DISH NETWORK L.L.C., and
`ARRIS GROUP, INC.,
`
`
`Defendants.
`
`
`
`REALTIME ADAPTIVE STREAMING LLC,
`
`
`Plaintiff,
`
`v.
`
`APPLE INC.,
`
`
`Defendant.
`
`
`
`
`
`
`
`
`
`Civil Action No. 1:17-cv-02097-RBJ
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`LEAD CASE
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`
`
`
`
`
`
`
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`Civil Action No. 1:17-cv-02869-RBJ
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`CONSOLIDATED CASE
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`STIPULATED PROTECTIVE ORDER
`REGARDING CASE NO. 1:17-cv-02869-RBJ
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`Plaintiff Realtime Adaptive Streaming LLC, (“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
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`supplemental disclosures in this case and request that the Court enter this Order setting forth
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`the conditions for treating, obtaining, and using such information with respect to Case No.
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`1:17-cv-02869-RBJ.
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`STIPULATED PROTECTIVE ORDER – PAGE 1
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`Case 1:17-cv-02097-RBJ Document 83 Filed 03/21/18 USDC Colorado Page 2 of 32
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`Pursuant to Rule 26(c) of the Federal Rules of Civil Procedure, the Court finds good
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`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
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`shall be used by a Receiving Party solely for this case, and shall not be used directly or indirectly
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`for any other purpose whatsoever.
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`(b)
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`The consolidation, coordination, or relation of this case with other cases
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`will not affect the scope of permissible use of Defendant’s Protected Material. To the extent that
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`Defendant in this litigation provides Protected Material under the terms of this Protective Order
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`to Plaintiff, Plaintiff shall not share that material with defendants in any related or consolidated
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`case, absent express written permission from Defendant. This Order does not confer any right to
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`any defendant in a related or consolidated case to access the Protected Material of Defendant.
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`(c)
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`The Parties acknowledge that this Order does not confer blanket
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`protections on all disclosures during discovery, or in the course of making initial or supplemental
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`disclosures under Rule 26(a). Designations under this Order shall be made with care and shall
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`not be made absent a good faith belief that the designated material satisfies the criteria set forth
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`below. If it comes to a Producing Party’s attention that designated material does not qualify for
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`protection at all, or does not qualify for the level of protection initially asserted, the Producing
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`Party must 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,
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`STIPULATED PROTECTIVE ORDER – PAGE 2
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`Case 1:17-cv-02097-RBJ Document 83 Filed 03/21/18 USDC Colorado Page 3 of 32
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`among other things, testimony, transcripts, or tangible things) that are produced, disclosed, or
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`generated 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. 7,386,046; 8,634,462; 8,929,442;
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`8,934,535; 9,578,298; 9,769,477, and any other patent asserted in this action, as well as any
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`related patents, patent applications, provisional patent applications, continuations, and/or
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`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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`(f)
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`“Protected Material” means any Discovery Material that is designated as
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`“CONFIDENTIAL,”
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`“CONFIDENTIAL
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`– ATTORNEYS’
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`EYES ONLY,”
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`or
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`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” as provided
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`for in this Order. Protected Material shall not include: (i) advertising materials that have been
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`actually published or publicly disseminated; and (ii) materials that show on their face they have
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`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, object code listings, Hardware Description Language (HDL) or
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`STIPULATED PROTECTIVE ORDER – PAGE 3
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`Register Transfer Level (RTL) files that describe the hardware design of any ASIC or other chip,
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`and Computer Aided Design (CAD) files that describe the hardware design of any component.
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`3.
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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 Rule of Civil 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
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`Party’s own disclosure or use of its own Protected Material for any purpose, and nothing in this
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`Order shall preclude any Producing Party from showing its Protected Material to an individual
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`who 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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`STIPULATED PROTECTIVE ORDER – PAGE 4
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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
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`order 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 this case
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`or any related appellate proceeding, and not for any other purpose whatsoever, including without
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`limitation any other litigation, patent prosecution or acquisition, patent reexamination or reissue
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`proceedings, or any business or competitive purpose or function. Protected Material shall not be
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`distributed, disclosed or made available to anyone except as expressly provided in this Order.
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`(b)
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`Patent Prosecution Bar. Absent the written consent of the Producing
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`Party, any person on behalf of the Plaintiff who receives one or more items designated
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY – SOURCE CODE” by a Defendant shall not be involved, directly
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`or indirectly, in any of the following activities: 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 functionality, operation, and design of systems or methods for data
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`compression or decompression, video coding or decoding, or multimedia streaming over a
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`network (generally or as described in any patent in suit), before any foreign or domestic agency,
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`including the United States Patent and Trademark Office. These prohibitions are not intended to
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`and shall not preclude counsel from participating in proceedings on behalf of a Party challenging
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`the validity of any patent. A person that is otherwise subject to this provision (“the Barred
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`STIPULATED PROTECTIVE ORDER – PAGE 5
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`Individual”) shall not be precluded from participating in reexamination, inter partes review,
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`covered business method review, or post-grant review so long as the Barred Individual does not
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`provide any input on drafting or amending claims. These prohibitions shall begin when access to
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY” or “CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY – SOURCE CODE” materials are first received by the affected
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`individual, and shall end one year after the final resolution of this action, including all appeals.
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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), unless the foreign national (1) is a Green Card holder, (2) working in the United States
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`pursuant to an H-1B visa sponsored by the receiving Party’s law firm, or (3) directly employed
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`by the receiving Party’s law firm to provide support or legal representation to the firm’s clients
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`and who are otherwise unaffiliated with the receiving Party.
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`(d)
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`Legal Advice Based on Protected Material. Nothing in this Protective
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`Order shall be construed to prevent counsel from advising their clients with respect to this case
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`based in whole or in part upon Protected Materials, provided counsel does not disclose the
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`Protected 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
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`STIPULATED PROTECTIVE ORDER – PAGE 6
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`known to the Receiving Party independent of the Producing Party; (iii) previously produced,
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`disclosed and/or provided by the Producing Party to the Receiving Party or a non-party without
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`an 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,” “CONFIDENTIAL – ATTORNEYS’
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`EYES ONLY,” or “CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE
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`CODE.”
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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
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`in 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
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`files being produced, the Producing Party may mark each viewable page or image with the
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`appropriate designation, and mark the medium, container, and/or communication in which the
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`digital files were contained. In the event that original documents are produced for inspection, the
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`original documents shall be presumed “CONFIDENTIAL – ATTORNEYS’ EYES ONLY”
`during the inspection and re-designated, as appropriate during the copying process.
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`(c)
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`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
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`this Order by appending to the file names or designators information indicating whether the file
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`STIPULATED PROTECTIVE ORDER – PAGE 7
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`contains “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE,” material, or
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`shall use any other reasonable method for so designating Protected Materials produced in
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`electronic format. When electronic files or documents are printed for use at deposition, in a court
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`proceeding, or for provision in printed form to an expert or consultant pre-approved pursuant to
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`Paragraph 12, the party printing the electronic files or documents shall affix a legend to the
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`printed document corresponding to the designation of the Designating Party and including the
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`production number and designation associated with the native file.
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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
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`transcript of the testimony is designated within thirty (30) days of receipt of the transcript of the
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`testimony. If no indication on the record is made, all information disclosed during a deposition
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`shall be deemed “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
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`wishes to disclose the transcript, or information contained therein, may provide written notice of
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`its intent to treat the transcript as non-confidential, after which time, any Party that wants to
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`maintain any portion of the transcript as confidential must designate the confidential portions
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`within fourteen (14) days, or else the transcript may be treated as non-confidential. Any
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`Protected Material that is used in the taking of a deposition shall remain subject to the provisions
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`of this Protective Order, along with the transcript pages of the deposition testimony dealing with
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`such Protected Material. In such cases the court reporter shall be informed of this Protective
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`Order and shall be required to operate in a manner consistent with this Protective Order. In the
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`STIPULATED PROTECTIVE ORDER – PAGE 8
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`event the deposition is videotaped, the original and all copies of the videotape shall be marked by
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`the video technician to indicate that the contents of the videotape are subject to this Protective
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`Order, substantially along the lines of “This videotape contains confidential testimony used in
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`this case and is not to be viewed or the contents thereof to be displayed or revealed except
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`pursuant to the terms of the operative Protective Order in this matter or pursuant to written
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`stipulation of the parties.” Counsel for any Producing Party shall have the right to exclude
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`from oral depositions, other than the deponent, deponent’s counsel, the reporter and
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`videographer (if any), any person who is not authorized by this Protective Order to receive or
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`access Protected Material based on the designation of such Protected Material. Such right of
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`exclusion shall be applicable only during periods of examination or testimony regarding such
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`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
`
`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:
`
`(i)
`
`The Receiving Party’s Outside Counsel, such counsel’s immediate
`
`paralegals and staff, and any copying or clerical litigation support services working at the
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`direction 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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`STIPULATED PROTECTIVE ORDER – PAGE 9
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`reasonably necessary for this case, provided that: (a) each such person has agreed to be bound
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`by the provisions of the Protective Order by signing a copy of Exhibit A; and (b) no
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`unresolved objections to such disclosure exist after proper notice has been given to all Parties
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`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
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`work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions
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`of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a
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`current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at
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`the time of retention to become an officer, director or employee of a Party or of a competitor of a
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`Party; (c) such expert or consultant accesses the materials in the United States only, and does not
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`transport them to or access them from any foreign jurisdiction; and (d) no unresolved objections
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`to such disclosure exist after proper notice has been given to all Parties as set forth in
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`Paragraph 12 below.
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`(iv) Court reporters, stenographers and videographers retained to
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`record 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
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`of Exhibit A;
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`(vii) Mock jurors who have signed an undertaking or agreement
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`agreeing not to publicly disclose Protected Material and to keep any information concerning
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`Protected Material confidential;
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`STIPULATED PROTECTIVE ORDER – PAGE 10
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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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`Party.
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`(ix) Any other person with the prior written consent of the Producing
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`9.
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`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY”
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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 – 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
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`that 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
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`information, if non-public, shall be presumed to merit the “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.
`
`(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:
`
`(i)
`
`The Receiving Party’s Outside Counsel, provided that such
`
`Outside Counsel is not involved in competitive decision-making, as defined by U.S. Steel v.
`
`United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a
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`STIPULATED PROTECTIVE ORDER – PAGE 11
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`Party, and such 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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`(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 and staff to whom disclosure is reasonably necessary for this case, provided that: (a)
`
`each such person has agreed to be bound by the provisions of the Protective Order by signing
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`a copy of Exhibit A; and (b) no unresolved objections to such disclosure exist after proper
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`notice has 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
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such
`
`work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions
`
`of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a
`
`current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at
`
`the time of retention to become an officer, director, or employee of a Party or of a competitor of
`
`a Party; (c) such expert or consultant is not involved in competitive decision-making, as defined
`
`by U.S. 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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`(iv) Court reporters, stenographers and videographers retained to
`
`record testimony taken in this action;
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`(v)
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`The Court, jury, and court personnel;
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`STIPULATED PROTECTIVE ORDER – PAGE 12
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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
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`of Exhibit A;
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`(vii) Mock jurors who have signed an undertaking or agreement
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`agreeing not to publicly disclose Protected Material and to keep any information concerning
`
`Protected Material confidential;
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`(viii) Any mediator who is assigned to hear this matter, and his or her
`
`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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`Party.
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`(ix) Any other person with the prior written consent of the Producing
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`10.
`
`DISCOVERY MATERIAL DESIGNATED AS “CONFIDENTIAL –
`OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE”
`
`(a)
`
`To the extent production of Source Code becomes necessary to the
`
`prosecution or defense of the case, a Producing Party may designate Source Code as
`
`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” if it
`
`comprises or includes confidential, proprietary, and/or trade secret Source Code.
`
`(b)
`
`Nothing in this Order shall be construed as a representation or admission
`
`that Source Code is properly discoverable in this action, or to obligate any Party to produce any
`
`Source Code.
`
`(c)
`
`Unless otherwise ordered by the Court, Discovery Material designated as
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`“CONFIDENTIAL – OUTSIDE ATTORNEYS’ EYES ONLY – SOURCE CODE” shall be
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`STIPULATED PROTECTIVE ORDER – PAGE 13
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`subject to the provisions set forth in Paragraph 11 below, and may be disclosed, subject to
`
`Paragraph 11 below, solely to:
`
`(i)
`
`The Receiving Party’s Outside Counsel, provided that such
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`Outside Counsel is not involved in competitive decision-making, as defined by U.S. Steel v.
`
`United States, 730 F.2d 1465, 1468 n.3 (Fed. Cir. 1984), on behalf of a Party or a competitor of a
`
`Party, and such 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;
`
`(ii)
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`Any outside expert or consultant retained by the Receiving Party to
`
`assist in this action, provided that disclosure is only to the extent necessary to perform such
`
`work; and provided that: (a) such expert or consultant has agreed to be bound by the provisions
`
`of the Protective Order by signing a copy of Exhibit A; (b) such expert or consultant is not a
`
`current officer, director, or employee of a Party or of a competitor of a Party, nor anticipated at
`
`the time of retention to become an officer, director or employee of a Party or of a competitor of a
`
`Party; (c) such expert or consultant is not involved in competitive decision-making, as defined by
`
`U.S. 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; and (d) no unresolved objections to such disclosure exist after proper
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`notice has been given to all Parties as set forth in Paragraph 12 below;
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`(iii) Court reporters, stenographers and videographers retained to
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`record testimony taken in this action;
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`(iv)
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`The Court, jury, and court personnel;
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`(v)
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`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
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`of Exhibit A;
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`STIPULATED PROTECTIVE ORDER – PAGE 14
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`Case 1:17-cv-02097-RBJ Document 83 Filed 03/21/18 USDC Colorado Page 15 of 32
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`(vi) 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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`Party.
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`(vii) Any other person with the prior written consent of the Producing
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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 Los Angeles office of its outside counsel, Russ August &
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`Kabat, 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 Los Angeles office of its outside
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`counsel, Hogan Lovells US LLP, or any other location mutually agreed by the Parties. Source
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`Code will be made available for inspection between the hours of 8 a.m. and 6 p.m. on business
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`days (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 fourteen (14) days’ notice of the Source Code that it wishes to inspect. The
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`Receiving Party shall provide four (4) days’ notice prior to any additional inspections.
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`(c)
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`Source Code that is designated “CONFIDENTIAL – OUTSIDE
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`ATTORNEYS’ EYES ONLY – SOURCE CODE” shall be produced for inspection and
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`review subject to the following provisions, 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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`STIPULATED PROTECTIVE ORDER – PAGE 15
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`Case 1:17-cv-02097-RBJ Document 83 Filed 03/21/18 USDC Colorado Page 16 of 32
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`been disabled (except for one printer port), as necessary and appropriate to prevent and protect
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`against any unauthorized copying, transmission, removal or other transfer of any Source Code
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`outside or away from the computer on which the Source Code is provided for inspection (the
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`“Source Code Computer” in the “Source Code Review Room”). The Producing Party shall
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`install tools that are sufficient for viewing and searching the code produced, on the platform
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`produced, if such tools exist and are presently used in the ordinary course of the Producing
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`Party’s business. The Receiving Party’s outside counsel and/or experts may request that
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`commercially available software tools for viewing and searching Source Code be installed on the
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`secured computer, provided, however, that (a) the Receiving Party possesses an appropriate
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`license to such software tools; (b) the Producing Party approves such software tools; and (c) such
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`other software tools are reasonably necessary for the Receiving Party to perform its review of the
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`Source Code consistent with all of the protections herein. The Receiving Party must provide the
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`Producing Party with the CD or DVD containing such licensed software tool(s) at least fourteen
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`(14) days in advance of the date upon which the Receiving Party wishes to have the additional
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`software tools available for use on the Source Code Computer.
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`(ii)
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`No recordable media or recordable devices, including without
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`limitation sound recorders, computers, cellular telephones, peripheral equipment, cameras, CDs,
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`DVDs, or drives of any kind, shall be permitted into the Source Code Review Room. The
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`Producing Party shall provide a non-networked computer (“Notetaking Computer”) for the
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`Receiving Party to take typewritten notes during source code review. Such typewritten notes
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`shall be permitted to be transferred to the Receiving Party by USB drive or similar storage device
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`transfer. Such typewritten notes are work product and not discoverable, shall be deleted from the
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`STIPULATED PROTECTIVE ORDER – PAGE 16
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`Case 1:17-cv-02097-RBJ Document 83 Filed 03/21/18 USDC Colorado Page 17 of 32
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`Notetaking Computer upon transfer to the Receiving Party, and Producing Party shall not keep
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`copies of the notes.
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`(iii) The Receiving Party’s outside counsel and/or experts shall be
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`entitled to take notes relating to the Source Code but may not copy the Source Code into the
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`notes and may not take such notes electronically on the Source Code Computer itself or any
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`other computer except for the Notetaking Computer.
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`(iv)
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`The Producing Party may visually monitor the activities of the
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`Receiving Party’s representatives during any Source Code review, but only to ensure that no
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`unauthorized electronic records of the Source Code and no information concerning the Source
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`Code are being created or transmitted in any way. The visual monitoring from outside of the
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`Source Code Review Room shall not involve listening to or recording any discussions that may
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`be occurring in the Source Code Review Room, shall not involve inspecting the notes taken by
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`the Receiving Party’s outside counsel or experts, and shall not create any waiver of the attorney-
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`client privilege and/or attorney-work product protections.
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`(v)
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`No copies of all or any portion of the Source Code may leave the
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`room in which the Source Code is inspected except as otherwise provided herein. Further, no
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`other written or electronic record of the Source Code is permitted except as otherwise provided
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`herein. The Producing Party shall make available a laser printer with commercially reasonable
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`printing speeds for on-site printing during inspection of the Source Code. The Receiving Party
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`may print limited portions