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`Case 1:17-cv-02097-RBJ Document 89-1 Filed 04/02/18 USDC Colorado Page 1 of 24Case 1:17-cv-02097-RBJ Document 91 Filed 04/04/18 USDC Colorado Page 1 of 24
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
`
`Lead Case No. 1:17-cv-02097
`
`REALTIME ADAPTIVE STREAMING, LLC
`
`Plaintiff,
`
`v.
`
`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.
`_____________________________________________________________________________
`Consolidated Case:
`Civil Action No.: 1:17-cv-02692-RBJ
`
`REALTIME ADAPTIVE STREAMING LLC,
`
`Plaintiff,
`
`v.
`
`POLYCOM INC.
`
`Defendant.
`
`STIPULATED PROTECTIVE ORDER For Case No. 1:17-cv-02692-RBJ
`
`WHEREAS, the Parties believe that certain information that is or will be encompassed by
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`discovery demands by the Parties involves the production or disclosure of trade secrets,
`
`confidential business information, or other proprietary information;
`
`WHEREAS, the Parties seek a protective order limiting disclosure thereof in accordance with
`
`1
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`

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`Federal Rule of Civil Procedure 26(c):
`
`THEREFORE, it is hereby stipulated among the Parties and ORDERED that:
`
`1.
`
`Each Party may designate as confidential for protection under this Order, in whole or in part,
`
`any document, information or material that constitutes or includes, in whole or in part,
`
`confidential or proprietary information or trade secrets of the Party or a Third Party to whom
`
`the Party reasonably believes it owes an obligation of confidentiality with respect to such
`
`document, information or material (“Protected Material”). Protected Material shall be
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`designated by the Party producing it by affixing a legend or stamp on such document,
`
`information or material as follows: “CONFIDENTIAL,” “CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY –
`
`SOURCE CODE.” The designation shall be placed clearly on each page of the Protected
`
`Material (except deposition and hearing transcripts) for which such protection is sought.
`
`For deposition and hearing transcripts, the word “CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY,” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE
`
`CODE” shall be placed on the cover page of the transcript (if not already present on the
`
`cover page of the transcript when received from the court reporter) by each attorney
`
`receiving a copy of the transcript after that attorney receives notice of the
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`designation of some or all of that transcript as “CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY,” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE
`
`CODE.”
`
`2.
`
`Any Confidential Material that is produced prior to the entry of this Order by the Court
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`shall be subject to the provisions of this Order to the same extent as if such Order had
`
`2
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`

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`been entered by the Court as of the date such Confidential Material was produced.
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`3.
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`With respect to documents, information or material designated “CONFIDENTIAL,
`
`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY – SOURCE CODE” (“DESIGNATED MATERIAL”),1
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`subject to the provisions herein and unless otherwise stated, this Order governs, without
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`limitation: (a) all documents, electronically stored information, and/or things as defined
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`by the Federal Rules of Civil Procedure; (b) all pretrial, hearing or deposition testimony, or
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`documents marked as exhibits or for identification in depositions and hearings; (c) pretrial
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`pleadings, exhibits to pleadings and other court filings; (d) affidavits; and (e) stipulations.
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`All copies, reproductions, extracts, digests and complete or partial summaries prepared
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`from any DESIGNATED MATERIALS shall also be considered DESIGNATED
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`MATERIAL and treated as such under this Order.
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`4.
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`A designation of Protected Material (i.e., “CONFIDENTIAL,” “CONFIDENTIAL –
`
`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY –
`
`SOURCE CODE”) may be made at any time. Inadvertent or unintentional production of
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`documents, information or material that has not been designated as DESIGNATED
`
`MATERIAL shall not be deemed a waiver in whole or in part of a claim for confidential
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`treatment. Any party that inadvertently or unintentionally produces Protected Material
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`without designating it as DESIGNATED MATERIAL may request destruction of that
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`Protected Material by notifying the recipient(s), as soon as reasonably possible after the
`
`1 The term DESIGNATED MATERIAL is used throughout this Protective Order to refer
`to the class of materials designated as “CONFIDENTIAL,” “CONFIDENTIAL –
`ATTORNEYS’ EYES ONLY,” or “CONFIDENTIAL – ATTORNEYS’ EYES ONLY –
`SOURCE CODE,” both individually and collectively.
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`3
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`

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`Producing Party becomes aware of the inadvertent or unintentional disclosure, and
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`providing replacement Protected Material that is properly designated. The recipient(s)
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`shall then destroy all copies of the inadvertently or unintentionally produced Protected
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`Materials and any documents, information or material derived from or based thereon.
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`5.
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`“CONFIDENTIAL” documents, information and material may be disclosed only to the
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`following persons, except upon receipt of the prior written consent of the designating party,
`
`upon order of the Court, or as set forth in paragraph 12 herein:
`
`(a)
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`The Receiving Party’s Outside Counsel, such counsel’s immediate paralegals and
`
`staff, and any copying or clerical litigation support services working at the
`
`direction of such counsel, paralegals, and staff;
`
`(b)
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`In-house counsel for the Parties who either have responsibility for making
`
`decisions dealing directly with the litigation of this Action, or who are assisting
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`outside counsel in the litigation of this Action;
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`(c)
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`Up to and including three (3) designated representatives of each of the Parties to the
`
`extent reasonably necessary for the litigation of this Action provided however that
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`before access is given, each of the three designated employees or directors has
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`completed and served the Undertaking attached as Appendix A hereto and that the
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`other Party be given five (5) days to object before the designated employee or
`
`director returning the Undertaking be provided with access to DESIGNATED
`
`MATERIAL. Should an objection be made, it shall be resolved in accordance with
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`the procedures of paragraph 5(d) herein;
`
`(d)
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`Outside consultants or experts (i.e., not existing employees or affiliates of a Party
`
`or an affiliate of a Party) retained for the purpose of this litigation, provided that:
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`
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`4
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`(1) such consultants or experts are not presently employed by the Parties hereto for
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`purposes other than this Action; (2) such consultant or expert is not involved in
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`competitive decision-making on behalf of a Party of a competitor of a Party; and (3)
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`before access is given, the consultant or expert has completed Appendix A hereto
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`and the same is served upon the Producing Party with a current curriculum vitae of
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`the consultant or expert and disclosure of the consultant’s or expert’s employment
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`and/or retentions for at least the past four years at least ten (10) days before access
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`to the Protected Material is to be given to that consultant or expert, so that the
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`Producing Party has at least ten (10) days to object to and notify the Receiving
`
`Party in writing that it objects to disclosure of Protected Material to the consultant
`
`or expert. The Parties agree to promptly confer and use good faith to resolve any
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`such objection. If the Parties are unable to resolve any objection, the objecting
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`Party may file a motion with the Court within fifteen (15) days of the notice, or
`
`within such other time as the Parties may agree, seeking a protective order with
`
`respect to the proposed disclosure. The objecting Party shall have the burden of
`
`proving the need for a protective order. No disclosure shall occur until all such
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`objections are resolved by agreement or Court order;
`
`(e)
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`Court reporters, stenographers, videographers, retained to record testimony taken
`
`in this Action;
`
`The Court, jury, and court personnel;
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`Graphics, translation, design, jury or trial consulting services, and photocopy,
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`document imaging, and database services retained by counsel having first agreed
`
`to be bound by the provisions of the Protective Order by signing a copy of
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`5
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`(f)
`
`(g)
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`
`
`

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`Appendix A and reasonably necessary to assist counsel with the litigation of this
`
`Action;
`
`(h)
`
`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
`
`Protective Order; and
`
`(i)
`
`Any other person with the prior written consent of the Producing Party
`
`
`6.
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`A Party shall designate documents, information or material as “CONFIDENTIAL” only
`
`upon a good faith belief that the documents, information or material contains confidential
`
`or proprietary information or trade secrets of the Party or a Third Party to whom the Party
`
`reasonably believes it owes an obligation of confidentiality with respect to such documents,
`
`information or material.
`
`7.
`
`Documents, information or material produced pursuant to any discovery request in this
`
`Action, including but not limited to Protected Material designated as DESIGNATED
`
`MATERIAL, shall be used by the Parties only in the litigation of this Action and shall not
`
`be used for any other purpose. Any person or entity who obtains access to DESIGNATED
`
`MATERIAL or the contents thereof pursuant to this Order shall not make any copies,
`
`duplicates, extracts, summaries or descriptions of such DESIGNATED MATERIAL or any
`
`portion thereof except as may be reasonably necessary in the litigation of this Action. Any
`
`such copies, duplicates, extracts, summaries or descriptions shall be classified
`
`DESIGNATED MATERIALS and subject to all of the terms and conditions of this Order.
`
`8.
`
`To the extent a Producing Party believes that certain Protected Material qualifying to
`
`be designated CONFIDENTIAL is so sensitive that its dissemination deserves even
`
`further limitation, the Producing Party may designate such Protected Material
`
`
`
`6
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`

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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or to the extent such Protected
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`Material includes computer source code and/or live data (that is, data as it exists residing
`
`in a database or databases) (“Source Code Material”), the Producing Party may designate
`
`such Protected Material as “CONFIDENTIAL – ATTORNEYS’ EYES ONLY –
`
`SOURCE CODE.”
`
`9.
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`For Protected Material designated CONFIDENTIAL – ATTORNEYS’ EYES ONLY,
`
`access to, and disclosure of, such Protected Material shall be limited to individuals listed
`
`in paragraphs 5(a) and (c-i) as to the Plaintiff and 5(a-i) as to Defendants.
`
`10.
`
`For Protected Material designated CONFIDENTIAL – ATTORNEYS’ EYES ONLY –
`
`SOURCE CODE, the following additional restrictions apply:
`
`(a)
`
`Access to a Party’s Source Code Material shall be provided only on “stand-alone”
`
`computer(s) (that is, the computer may not be linked to any network, including a
`
`local area network (“LAN”), an intranet or the Internet) (“Source Code
`
`Computer”). The Source Code Computer shall not have connected, while the
`
`Source Code review is actually being conducted by the Receiving Party, removable
`
`storage means, printing capability, or access to any networks or other computers,
`
`including the Internet. The Receiving Party shall not attempt to connect any
`
`input/output or storage device (printer, USB, memory stick, CD-ROM, DVD, etc.)
`
`to the Source Code Computer at any time. Additionally, except as provided in
`
`paragraph 10(l) below, the stand-alone computer(s) may only be located at the
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`offices of the Producing Party’s outside counsel;
`
`(b)
`
`The Receiving Party shall make reasonable efforts to restrict its requests for such
`
`access to the stand-alone computer(s) to normal business hours, which for purposes
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`
`
`7
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`of this paragraph shall be 9:00 a.m. through 5:00 p.m. However, upon reasonable
`
`notice from the receiving party, the Producing Party shall make reasonable efforts to
`
`accommodate the Receiving Party’s request for access to the stand-alone
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`computer(s) outside of normal business hours. The Parties agree to cooperate in
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`good faith such that maintaining the Producing Party’s Source Code Material at the
`
`offices of its outside counsel shall not unreasonably hinder the Receiving Party’s
`
`ability to efficiently and effectively conduct the prosecution or defense of this
`
`Action;
`
`(c)
`
`The Producing Party shall provide the Receiving Party with information explaining
`
`how to start, log on to, and operate the stand-alone computer(s) in order to access the
`
`produced Source Code Material on the stand-alone computer(s);
`
`(d)
`
`The Producing Party will produce Source Code Material in computer searchable
`
`format on the stand-alone computer(s) as described above;
`
`(e)
`
`Access to Protected Material designated CONFIDENTIAL – ATTORNEYS’
`
`EYES ONLY – SOURCE CODE shall be limited to outside counsel and up to three
`(3) outside consultants or experts2 (i.e., not existing employees or affiliates of a
`
`Party or an affiliate of a Party) retained for the purpose of this litigation and
`
`approved to access such Protected Materials pursuant to paragraph 5(d) above. A
`
`Receiving Party may include excerpts of Source Code Material in a pleading,
`
`exhibit, expert report, discovery document, deposition transcript, other Court
`
`
`2 For the purposes of this paragraph, an outside consultant or expert is defined to include
`the outside consultant’s or expert’s direct reports and other support personnel, such that the
`disclosure to a consultant or expert who employs others within his or her firm to help in his or
`her analysis shall count as a disclosure to a single consultant or expert.
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`
`
`8
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`document, provided that the Source Code Documents are appropriately marked
`
`under this Order, restricted to those who are entitled to have access to them as
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`specified herein, and, if filed with the Court, filed pursuant to paragraph 18 below;
`
`(f)
`
`All CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE
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`materials used during a deposition or marked as an exhibit at a deposition will be
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`retrieved by the party conducting the deposition at the end of each day. At no time,
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`will any CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE
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`material be given to or left with the Court Reporter. Rather, the deposition record
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`will identify the exhibit by its production numbers.
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`(g)
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`To the extent portions of Source Code Material are quoted in a Source Code
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`Document, either (1) the entire Source Code Document will be stamped and treated
`
`as CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE or (2)
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`those pages containing quoted Source Code Material will be separately stamped
`
`and treated as CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE
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`CODE;
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`(h)
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`Except as set forth in paragraph 10(l) below, no electronic copies of Source Code
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`Material shall be made without prior written consent of the Producing Party, except
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`as necessary to create documents which, pursuant to the Court’s rules, procedures
`
`and order, must be filed or served electronically. To the extent the Receiving Party
`
`serves electronic files containing such source code, the Receiving Party must use
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`commercially reasonable encryption software including password protection;
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`(i)
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`No copies of all or any portion of the Source Code may leave the room in which
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`the Source Code is inspected. The Receiving Party may request paper copies of
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`
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`9
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`limited portions of source code that are reasonably necessary for the preparation
`
`of court filings, 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 above. Counsel for the Receiving Party may
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`identify by file name and line number the source code files for printing. No more
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`than 35 consecutive pages and 750 total pages of Source Code may be printed in
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`this matter. The Producing Party shall produce within five (5) business days a paper
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`copy of the limited relevant portions of the Source Code Material identified by the
`
`Receiving Party directly to the Receiving Party’s outside counsel of record, and
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`the paper copy shall be marked “CONFIDENTIAL – ATTORNEYS’ EYES
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`ONLY – SOURCE CODE”;
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`(j)
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`Such printouts or photocopies may not be transferred back to electronic media
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`except as provided for in paragraph 10(h);
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`(k) With the Producing Party’s written consent, the Receiving Party’s outside counsel
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`of record may make no more than three (3) additional paper copies of any portions
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`of the Source Code Material printed pursuant to sub-paragraph (i) above, not
`
`including copies attached to court filings, and shall maintain a log of all copies of
`
`the Source Code Material (received from Producing Party) that are provided by the
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`Receiving Party to any person approved to access Source Code Material under this
`
`Protective Order. The log shall include the names of the recipients and reviewers
`
`of copies and locations where the copies are stored. Any paper copies of Source
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`Code Material shall be stored or viewed only at (i) the offices of outside counsel
`
`of record for the Receiving Party, (ii) the offices of outside experts who have been
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`
`
`10
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`

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`approved to access Source Code Material under this Protective Order; (iii) the site
`
`where any deposition is taken; (iv) the Court; or (v) any intermediate location
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`necessary to transport the information to a hearing, trial or deposition. Images or
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`copies of Source Code shall not be included in correspondence between parties
`
`(references to production numbers shall be used instead) and shall be omitted from
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`pleadings and other papers except to the extent permitted herein. Any such paper
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`copies shall be maintained at all times in a locked and secure location. The
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`Producing Party shall not unreasonably deny a Receiving Party’s request to make
`
`(and log) additional copies, providing that the request is for good cause and for use
`
`that otherwise complies with this Protective Order. The Producing Party shall be
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`entitled to a copy of the log upon request, and at the conclusion of the litigation of
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`this Action; and
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`(l)
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`A Producing Party’s Source Code Material may only be transported by the
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`Receiving Party at the direction of a person authorized under paragraph 5(a) or (d)
`
`above to another person authorized under paragraph 5(a) or (d) above, via hand
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`carry, hand carry courier, UPS Express Critical, or FedEx Custom Critical. The
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`Receiving Party shall provide available tracking numbers associated with each
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`container or transported Source Code Material.
`
`(m)
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`The Receiving Party’s outside counsel of record and/or outside experts or
`
`consultants shall be entitled to take only notes relating to the Source Code, and
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`shall not copy any Source Code to the notes. Any notes taken pursuant to this
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`subparagraph by outside counsel and/or outside experts or consultants shall be
`
`treated as CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE
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`
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`11
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`but are not discoverable. No recordable media, recordable devices, input/output
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`devices or other electronic devices, including without limitation sound recorders,
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`computers, cellular telephones, peripheral equipment, cameras, CDs, DVDs, video
`
`cameras, smartwatches, other “smart” peripherals (like Google Glass), and any
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`other devices with communications or recording capability or drives of any kind
`
`may be brought into the secured room by the Receiving Party’s outside counsel of
`
`record and/or outside experts or consultants during their review of the Source Code
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`Material;
`
`the Producing Party shall provide a non-networked computer
`
`(“Notetaking Computer’) for the Receiving Party to take typewritten notes during
`
`source code review. Such typewritten notes shall be permitted to be transferred to
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`the Receiving Party by USB drive or similar storage device transfer. Such
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`typewritten notes are not discoverable, shall be deleted from the Notetaking
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`Computer upon transfer to the Receiving Party, and Producing Party shall not keep
`
`copies of the notes.
`
`(n)
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`The Producing Party shall maintain a log of the names of persons who enter the
`
`designated facility to view the Source Code Material, and when they enter and
`
`depart. The Receiving Party’s outside counsel of record and/or outside experts or
`
`consultants shall sign in and out on any such log. The Producing Party shall be
`
`entitled to have a person observe all entrances, exits from and activities in the
`
`Source Code Material viewing room, but may not listen in on any communication
`
`occurring among Receiving Party’s outside counsel and/or outside experts or
`
`consultants. Proper identification of all authorized persons shall be provided prior
`
`to any access to the Source Code Material viewing room or the computer
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`
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`12
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`containing Source Code Material. Proper identification requires showing, at a
`
`minimum, a photo identification card sanctioned by the government of any State
`
`of the United States, by the government of the United States, or by the nation state
`
`of the authorized person’s current citizenship. Access to the secure room or the
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`Source Code Computer may be denied, at the discretion of the supplier, to any
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`individual who fails to provide proper identification.
`
`Any attorney representing Plaintiff, whether in-house or outside counsel, and any
`
`person associated with Plaintiff and permitted to receive a Defendant’s Protected Material
`
`that is designated CONFIDENTIAL – ATTORNEYS’ EYES ONLY and/or
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`CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE (collectively
`
`“HIGHLY SENSITIVE MATERIAL”), who obtains, receives, has access to, or
`
`otherwise learns, in whole or in part, a Defendant’s HIGHLY SENSITIVE MATERIAL
`
`under this Order shall not be involved, directly or indirectly, in any of the following
`
`activities: advising on, consulting on, preparing, prosecuting, drafting, editing, and/or
`
`amending of patent applications, specifications, claims, and/or responses to office
`
`actions, or otherwise affecting the scope of claims in patents or patent applications
`
`relating to i) the field of the invention of the patents-in-suit ii) the accused infringing
`
`technology of the Defendants’ or iii) methods and systems for data compression before
`
`any foreign or domestic agency, including the United States Patent and Trademark
`
`Office, during the pendency of this Action and for one year after its conclusion, including
`
`any appeals. To ensure compliance with the purpose of this provision, Plaintiff shall
`
`create an “Ethical Wall” between those persons with access to HIGHLY SENSITIVE
`
`MATERIAL and any individuals who, on behalf of Plaintiff or its acquirer, successor,
`
`13
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`11.
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`

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`predecessor, or other affiliate, prepare, prosecute, supervise or assist in the preparation or
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`prosecution of any patent application relating to categories i), ii), or iii) above. These
`
`prohibitions are not intended to and shall not preclude counsel from participating in
`
`proceedings on behalf of a Party challenging the validity of any patent. A person that is
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`otherwise subject to this provision (“the Barred Individual”) shall not be precluded from
`
`participating in reexamination, inter partes review, covered business method review, or
`
`post-grant review so long as the Barred Individual does not provide any input on drafting
`
`or amending claims.
`
`12.
`
`To the extent that any one of the Defendants in this litigation provides DESIGNATED
`
`MATERIAL under the terms of this Order to the Plaintiff, the Plaintiff shall not share
`
`that material with the other Defendants in this Action, absent express written permission
`
`from the producing Defendant. This Order does not confer any right to any one
`
`Defendant to access the DESIGNATED MATERIAL of any other Defendant. For the
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`avoidance of doubt, in no case shall any information designated as CONFIDENTIAL –
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`ATTORNEYS’ EYES ONLY and/or CONFIDENTIAL – ATTORNEYS’ EYES ONLY
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`– SOURCE CODE by a Defendant be provided to any other Defendant or Defendant’s
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`counsel by any Party or counsel absent explicit agreement from the Party designating the
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`information. Without the express prior written consent of the Defendant that produced the
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`DESIGNATED MATERIAL, no expert or consultant retained by a Defendant in this
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`matter shall have access to DESIGNATED MATERIAL produced by another Defendant
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`in this matter. Notwithstanding the foregoing, in-house counsel designated in paragraph
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`5(b) for a specific Defendant may have access to settlement agreements, licenses, and
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`covenants not to sue regarding any of the patents asserted in this Action, even if
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`designated as CONFIDENTIAL – ATTORNEYS’ EYES ONLY and even if containing
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`DESIGNATED MATERIAL from a different Defendant.
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`13.
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`Nothing in this Order shall require production of documents, information or other material
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`that a Party contends is protected from disclosure by the attorney-client privilege, the work
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`product doctrine, or other privilege, doctrine, or immunity. If documents, information or
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`other material subject to a claim of attorney-client privilege, work product doctrine, or other
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`privilege, doctrine, or immunity is inadvertently or unintentionally produced, such
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`production shall in no way prejudice or otherwise constitute a waiver of, or estoppel as to,
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`any such privilege, doctrine, or immunity. Any Party that inadvertently or unintentionally
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`produces documents, information or other material it reasonably believes are protected under
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`the attorney-client privilege, work product doctrine, or other privilege, doctrine, or immunity
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`may obtain the return of such documents, information or other material by promptly
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`notifying the recipient(s) and providing a privilege log for the inadvertently or
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`unintentionally produced documents, information or other material. The recipient(s) shall
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`gather and return all copies of such documents, information or other material to the
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`Producing Party, except for any pages containing privileged or otherwise protected markings
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`by the recipient(s), which pages shall instead be destroyed and certified as such to the
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`Producing Party. No use shall be made of such documents or information during
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`depositions, through motion practice, or at trial, except for the sole purpose of a motion to
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`compel the production of said document. In the case of such returned production, the
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`Producing Party shall provide a privilege log identifying such documents or information
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`within (3) business days of its original notice to the Receiving Party. The Receiving Party
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`may move the Court for an Order compelling the production of any such documents or
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`information in accordance with the Federal Rules of Civil Procedure.
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`14.
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`There shall be no disclosure of any DESIGNATED MATERIAL by any person authorized
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`to have access thereto to any person who is not authorized for such access under this Order.
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`The Parties are hereby ORDERED to safeguard all such documents, information and
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`material to protect against disclosure to any unauthorized persons or entities. In the event
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`of any accidental or inadvertent disclosure of DESIGNATED MATERIAL other than in
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`a manner authorized by this Protective Order, counsel for the party responsible for the
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`disclosure shall immediately notify opposing counsel of all the pertinent facts, and make
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`every effort to prevent further unauthorized disclosure including retrieving all copies of
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`the DESIGNATED MATERIAL from the recipient(s) thereof and securing the agreement
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`of the recipients not to further disseminate the DESIGNATED MATERIAL in any form.
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`Compliance with the foregoing shall not prevent a party from seeking further relief from
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`the Court.
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`15.
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`Nothing contained herein shall be construed to prejudice any Party’s right to use any
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`DESIGNATED MATERIAL in taking testimony at any deposition or hearing provided that
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`the DESIGNATED MATERIAL is only disclosed to a person(s) who is: (i) eligible to have
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`access to the DESIGNATED MATERIAL by virtue of his or her employment with the
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`designating party, (ii) identified in the DESIGNATED MATERIAL as an author, addressee,
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`or copy recipient of such information, (iii) although not identified as an author, addressee,
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`or copy recipient of such DESIGNATED MATERIAL, has, in the ordinary course of
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`business, seen such DESIGNATED MATERIAL, (iv) a current or former officer, director
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`or employee of the Producing Party or a current or former officer, director or employee of
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`a company affiliated with the Producing Party; (v) counsel for a Party, including outside
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`counsel and in-house counsel (subject to paragraph 9 of this Order); (vi) an independent
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`contractor, consultant, and/or expert retained for the purpose of this litigation; (vii) court
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`reporters and videographers; (viii) the Court; or (ix) other persons entitled hereunder to
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`access to DESIGNATED MATERIAL. DESIGNATED MATERIAL shall not be disclosed
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`to any other persons unless prior authorization is obtained from counsel representing the
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`Producing Party or from the Court.
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`16.
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`Parties may, at the deposition or hearing or within thirty (30) days after receipt of a
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`deposition or hearing transcript, designate the deposition or hearing transcript or any portion
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`thereof as “CONFIDENTIAL,” “CONFIDENTIAL – ATTORNEYS’ EYES ONLY,” or
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`“CONFIDENTIAL – ATTORNEYS’ EYES ONLY – SOURCE CODE” pursuant to this
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`Order.