Case 1:13-cv-00919-JLH Document 468 Filed 04/20/23 Page 1 of 20 PageID #: 49622
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF DELAWARE
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`C.A. No. 13-919-JLH
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`Original Version Filed: April 14, 2023
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`Public Version Filed: April 20, 2023
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`))))))))))
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`ARENDI S.A.R.L.,
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`Plaintiff,
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`v.
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`GOOGLE LLC,
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`Defendant.
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`REVISED [PROPOSED] JOINT PRETRIAL ORDER
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`Pursuant to Federal Rule of Civil Procedure 16, District of Delaware Local Rule 16.3, and
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`the Joint Stipulation and Order Regarding Schedule for Pretrial Exchanges, entered February 13,
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`2023 (D.I. 437), Plaintiff Arendi S.à.r.l. (“Arendi”) and Defendant Google LLC (“Google”),
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`respectfully submit this Revised Proposed Joint Pretrial Order. The Court held the Pretrial
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`Conference on April 6, 2023, at 3 pm. A five-day jury trial is scheduled to begin on April 24, 2023.
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`TABLE OF CONTENTS
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`NATURE OF THE CASE ................................................................................................. 1
`I.
`A.
`Background ............................................................................................................ 1
`B.
`Parties ..................................................................................................................... 1
`C.
`Nature of the Action ............................................................................................... 2
`JURISDICTION ................................................................................................................ 3
`II.
`FACTS ............................................................................................................................... 3
`III.
`A.
`Uncontested Facts .................................................................................................. 3
`B.
`Contested Facts ...................................................................................................... 3
`ISSUES OF LAW .............................................................................................................. 4
`IV.
`V. WITNESSES...................................................................................................................... 4
`A. Witnesses Expected to be Called at Trial .............................................................. 4
`B.
`Deposition Designations ........................................................................................ 5
`C.
`Objections to Expert Testimony ............................................................................ 7
`VI.
`EXHIBITS ......................................................................................................................... 8
`A.
`Trial Exhibits ......................................................................................................... 8
`B.
`Demonstrative Exhibits ........................................................................................ 11
`INTENDED PROOFS ..................................................................................................... 12
`VII.
`VIII. MOTIONS IN LIMINE ................................................................................................... 13
`DOCUMENTS CONTAINING JUDICIAL ADMISSIONS .......................................... 13
`IX.
`AMENDMENTS TO THE PLEADINGS ....................................................................... 13
`X.
`XI.
`NUMBER OF JURORS .................................................................................................. 13
`XII. LENGTH OF TRIAL ....................................................................................................... 14
`XIII. MOTIONS FOR JUDGMENT AS A MATTER OF LAW ............................................ 14
`XIV. HANDLING OF CONFIDENTIAL INFORMATION AT TRIAL ................................ 14
`XV. MISCELLANEOUS PROVISIONS ................................................................................ 15
`XVI. RELIEF SOUGHT ........................................................................................................... 16
`XVII. SETTLEMENT ................................................................................................................ 17
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`I.
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`NATURE OF THE CASE
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`A.
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`1.
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`Background
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`Arendi filed this action for patent infringement against Google in 2013. Arendi
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`claims that Google has literally infringed claims 1, 8, 23, and 30 of U.S. Patent No. 7,917,843 (the
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`“’843 Patent”) through the sale, offering for sale, importation, manufacture, and use of certain
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`mobile devices. Arendi further claims that Google has also literally infringed those claims through
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`the sale, offering for sale, importation, manufacture, and use of certain after-market “apps” (for
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`example, Gmail, Chrome, Docs, Messages) installed on mobile devices by users. Mr. Atle Hedløy
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`is the named inventor of the ’843 Patent, titled “Method, system and computer readable medium
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`for addressing handling from a computer program.” In addition to asserting claims of direct
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`infringement, Arendi alleges that Google is liable for induced infringement and contributory
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`infringement with respect to post-suit infringement. Arendi also alleges that Google’s post-
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`complaint infringement was willful.
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`2.
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`The operative pleadings in this case are Arendi’s Amended Complaint (D.I. 97) and
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`Google’s Answer to Amended Complaint (D.I. 99).
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`B.
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`3.
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`Parties
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`Plaintiff Arendi is the assignee of the ’843 Patent. Arendi’s CEO is Atle Hedløy,
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`the named inventor of the ’843 Patent. Arendi is a société à responsabilité limitée (abbreviated
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`SARL, S.A.R.L., or S.à.r.l.) organized under Luxembourg law with its principal place of business
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`in Luxembourg.
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`4.
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`Defendant Google is a corporation organized and existing under the laws of the
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`State of Delaware, with a principal place of business in Mountain View, California.
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`1
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`C.
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`5.
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`Nature of the Action
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`Arendi alleges that each of Google’s Accused Products literally infringes claims 1,
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`8, 23 and 30 of the ’843 Patent.
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`6.
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`Arendi also accuses Google of infringing the Asserted Claims of the ’843 Patent by
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`actively inducing third-party importation, sale, and use of the Accused Products. Arendi further
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`accuses Google of contributing to infringement of the Asserted claims of the ’843 Patent by third
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`parties.
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`7.
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`Arendi claims damages through November 10, 2018 (when the ’843 Patent’s term
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`ended), for Google’s infringement as follows: damages adequate to compensate for the
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`infringement, but in no event less than a reasonable royalty.
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`8.
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`9.
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`Arendi also seeks a finding that Google’s post-complaint infringement was willful.
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`Arendi seeks an enhancement of the awarded damages in light of Google’s alleged
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`post-complaint willful infringement, pre-judgment and post-judgment interest, and an award of
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`costs and attorneys’ fees.
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`10.
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`The Court has prohibited Arendi from relying on a doctrine-of-equivalents
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`infringement theory against Google (D.I. 257).
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`11.
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`Google denies Arendi’s claims of infringement of the ’843 patent, including claims
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`of willful infringement. Google further denies that Arendi is entitled to any damages, at all or in
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`the amount Arendi seeks, for alleged infringement of the ’843 patent. Google further contends that
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`Arendi is not entitled to pre-judgment or post-judgment interest, or any costs or attorneys’ fees.
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`12.
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`Google contends that the asserted claims 1, 8, 23, and 30 of the ’843 patent are
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`invalid under 35 U.S.C. §§ 102, 103, and/or 112; that damages are limited by Arendi’s failure to
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`mark products that practice claims 1, 8, 23, and/or 30 pursuant to 35 U.S.C. § 287; and that Google
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`is entitled to costs and attorneys’ fees under 35 U.S.C. § 285.
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`13.
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`Arendi denies Defendants’ allegation that the claims are invalid; that damages are
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`limited under section 287; and that Defendants are entitled to costs and attorneys’ fees under 35
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`U.S.C. § 285.
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`II.
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`JURISDICTION
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`14.
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`This Court has federal-question jurisdiction over this action because it arises under
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`the patent laws of the United States, 35 U.S.C. § 1 et seq. This Court has original jurisdiction over
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`the subject matter of this controversy under 28 U.S.C. §§ 1331, 1338, and the patent laws of the
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`United States, 35 U.S.C. § 271 et seq. No party contests subject matter jurisdiction.
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`15.
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`16.
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`No party contests personal jurisdiction for purposes of this action.
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`No party contests venue for purposes of this action in this District pursuant to 28
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`U.S.C. §§ 1391 and 1400(b).
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`III.
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`FACTS
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`A.
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`17.
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`Uncontested Facts
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`The parties agree that the facts listed in Exhibit 1 are not contested for purposes of
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`trial. These uncontested facts shall require no proof at trial and will become part of the evidentiary
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`record at trial once introduced to the jury. Any party may read or introduce any of the uncontested
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`facts to the jury at any time without prior notice and the jury should be instructed that the undisputed
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`facts are to be taken as true in their deliberations.
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`Contested Facts
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`Plaintiff’s statement of the issues of fact that remain to be litigated is attached as
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`B.
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`18.
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`Exhibit 2P.
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`3
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`19.
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`Google’s statement of the issues of fact that remain to be litigated is attached as
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`Exhibit 2D.
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`20.
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`If the Court determines that any issue identified in the statements of issues of fact
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`is more properly considered an issue of law, it should be so considered.
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`IV.
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`ISSUES OF LAW
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`21.
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`Plaintiff’s statement of the issues of law that remain to be litigated is attached as
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`Exhibit 3P.
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`22.
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`Google’s statement of the issues of law that remain to be litigated is attached as
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`Exhibit 3D.
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`23.
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`If the Court determines that any issue identified in the statements of issues of law
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`is more properly considered an issue of fact, it should be so considered.
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`V. WITNESSES
`A. Witnesses Expected to be Called at Trial
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`24.
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`In Exhibit 4P Plaintiff identifies the names of the witnesses it intends to call to
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`testify at trial and whether each witness will testify in person or by deposition.
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`25.
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`In Exhibit 4D, Google identifies the names of the witnesses it intends to call to
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`testify at trial and whether each witness will testify in person or by deposition.
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`26.
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`The parties may call any witness necessary for the purpose of impeachment or
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`authenticating a document. The parties reserve the right to revise or supplement their respective
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`trial witness lists consistent with the Pretrial Order or as otherwise permitted by the Court.
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`27.
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`The parties agree that fact witnesses will be sequestered, except for a single
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`corporate representative. That corporate representative need not be sequestered even if also a fact
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`witness. The parties agree that expert witnesses need not be sequestered.
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`28.
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`On April 17, 2023, each party shall provide a good faith list of the witnesses it
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`expects to call during the trial in the general order in which it expects to call them. During trial,
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`each party shall provide notice by email of the witness(es) it intends to call, whether they will be
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`called live or by deposition, and the order in which they will be called, by no later than 7:00 p.m.
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`ET two (2) calendar days before the trial day on which the witness is to be called.
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`B.
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`29.
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`Deposition Designations
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`The deposition testimony that Plaintiff may offer into evidence is identified in
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`Exhibit 5P, along with Defendant’s objections and counter-designations thereto.
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`30.
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`The deposition testimony that Google may offer into evidence is identified in
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`Exhibit 5D along with Plaintiff’s objections and counter-designations thereto.
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`31.
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`This pretrial order contains the universe of deposition designations, counter-
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`designations, and objections to admissions of deposition testimony currently contemplated by the
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`parties; none of the foregoing shall be supplemented without approval of all parties or leave of the
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`Court, on good cause shown. The parties are expected to continue to engage in good faith efforts to
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`reduce the number of deposition designations and counter-designations and objections thereto
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`included in this pretrial order.
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`32.
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`Any party may use testimony that is designated by another party, to the same effect
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`as if it had initially designated the testimony as its own, subject to all objections.
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`33.
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`For any witness whose testimony the parties intend to present at trial by deposition,
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`the parties shall identify a list of deposition designations to be played to the jury and the proposed
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`exhibits used in the designations by 7:00 p.m. ET three (3) calendar days before the designations
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`are to be played to the jury. The party receiving the designations shall inform the opposing party of
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`any objections and counter-designations by 7:00 p.m. ET two (2) calendar days prior to the
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`testimony being offered into the record. If good faith efforts to resolve the objections fail, the party
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`seeking to introduce the designated deposition testimony shall bring the objections to the Court’s
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`attention by 6:00 p.m. ET one calendar day before the designations are to be played to the jury, by
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`submitting to the Court the relevant transcript, with all designations and counter-designations
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`highlighted, and a joint cover letter identifying the pending objections and providing the objecting
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`party’s brief (i.e., no more than one sentence) summary of the basis for each objection and the
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`offering party’s brief (i.e., no more than one sentence) response to each objection.
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`34. When a witness is called to testify by deposition at trial, the party calling the witness
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`shall provide copies of the transcript of the designations and counter-designations that will be
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`played to the Court (two copies), court reporter, and opposing party.
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`35.
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`For each separate group of designations and counter-designations to be read or
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`played at one time, the designations and counter-designations will be read or played by video at the
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`same time in the order they appear in the transcript.
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`36.
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`The parties will be charged for time according to the following proportions: each
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`side shall be charged only with the time needed to play its own designations or counter-designations
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`and will not be charged with the time necessary to play the other side’s designations or counter-
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`designations. The parties must inform the court reporter of how the time used for deposition
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`playback shall be allocated between the parties.
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`37.
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`Colloquy between counsel, requests to have the court reporter read back a question,
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`and objections will be eliminated when the deposition is played at trial.
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`38.
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`The party offering the testimony is responsible for preparing video deposition clips
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`of all designated testimony for that witness. A copy of the video deposition clips, including counter-
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`designation clips, shall be provided to the opposing party no later than 9:30 p.m. ET the day before
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`the deposition testimony is expected to be played, or state in writing that the deposition will be read
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`into the record.
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`39.
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`For those witnesses whose depositions will be played or read, the parties shall be
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`permitted to make brief transition statements to introduce the witnesses by name, position or title,
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`and/or the entity with which he or she is associated, the time for which shall be charged to the party
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`offering the witness’s testimony, unless otherwise agreed to by the parties. However, counsel shall
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`not be permitted to argue or comment on the evidence during transition statements.
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`40.
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`The above procedures regarding deposition designations do not apply to portions
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`of deposition transcripts and/or video used for impeachment of a witness. Any deposition testimony
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`may be used at trial for the purpose of impeachment, regardless of whether a party identified that
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`testimony on its list of deposition designations. The parties agree that they may object to the use of
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`deposition and other prior testimony for impeachment purposes, including objections based on lack
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`of completeness and/or lack of inconsistency.
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`41.
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`If a party intends to use deposition testimony during its opening statement, the party
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`shall disclose the testimony by 2:00 p.m. ET two (2) calendar days before opening statements. The
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`parties will provide any objections to such testimony by 6:00 p.m. ET the same day, and the parties
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`will meet and confer by 8:00 p.m. ET the same day. If good faith efforts to resolve the objections
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`fail, the party seeking to introduce the deposition testimony shall bring the objections to the Court’s
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`attention by 6:00 p.m. ET on the day before opening statements, following the procedure described
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`in Paragraph 33 above.
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`C.
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`42.
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`Objections to Expert Testimony
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`The parties agree that the Court should rule at trial on any objections to expert
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`testimony as beyond the scope of prior expert reports or Rule 26 disclosures (in the case of witnesses
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`for whom an expert report is not required), and that a failure to object to expert testimony as beyond
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`the scope of prior expert reports or disclosures waives the objection as to that testimony. The time
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`taken to argue and decide such objections will generally be charged to the losing party. To the
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`extent possible, the parties will address issues or objections related to expected expert testimony
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`before the start of the trial day.
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`VI. EXHIBITS
`A.
`Trial Exhibits
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`43.
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`The joint list of exhibits that the parties intend to offer at trial is attached as Exhibit
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`6J.
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`44.
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`Plaintiff’s list of exhibits that it intends to offer at trial, with Defendants’ objections,
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`is attached as Exhibit 6P.
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`45.
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`Google’s list of exhibits that it intends to offer at trial, with Plaintiff’s objections,
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`is attached as Exhibit 6D.
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`46.
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`This pretrial order contains the exhibits to be used in any party’s case-in-chief, as
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`well as all objections to the admission of such exhibits.
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`47.
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`Notwithstanding the foregoing, the parties agree that exhibits to be used solely for
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`impeachment need not be included on the lists of trial exhibits or disclosed in advance of being
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`used at trial.
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`48.
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`The parties agree to provide witness binders for each fact and expert witness for
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`direct examination. Three copies of such binders, and of any witness binders to be used on cross-
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`examination, must be provided to the Court.
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`49.
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`Exhibits may be introduced via video deposition testimony. Any party that has used
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`an exhibit with the witness and wishes that exhibit to be admitted into evidence must formally move
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`the exhibit into evidence, by exhibit number.
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`50.
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`Except as provided by Federal Rules of Evidence and provided below with respect
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`to opening statements, exhibits may not be published, displayed, or otherwise shown to the jury
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`until after they have been admitted into evidence. Once admitted, counsel for either party may
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`publish exhibits to the jury without requesting to do so.
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`51.
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`At the conclusion of trial, the parties will jointly provide the Court with a binder
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`and electronic set of the admitted exhibits.
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`52.
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`Any exhibit, once admitted at trial, may be used equally by each party for any
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`proper purpose in accordance with the Federal Rules of Evidence.
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`53.
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`Even if not separately listed on its own exhibit list, a party may introduce an exhibit
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`from any other party’s trial exhibit list, subject to any appropriate objections from the opposing
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`party. If a party attempts to introduce or use an exhibit that was not previously listed on its own
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`exhibit list, any other party may offer any applicable objection, even if such objection was not
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`previously noted on the exhibit lists.
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`54.
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`The listing of a document on a party’s exhibit list or the joint exhibit list is not an
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`admission that such document is relevant or admissible when offered by the opposing party for the
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`purpose that the opposing party wishes to admit the document.
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`55.
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`Each party reserves the right to object to the admissibility of any evidence offered
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`by the other party, at the time such evidence is offered, in view of the specific context in which
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`such evidence is offered, but only if such context is not reasonably foreseeable. All other objections
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`to the admissibility of evidence shall be raised beforehand, pursuant to the provisions of this order
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`and the Court’s Scheduling Order (D.I. 437).
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`56.
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`The parties agree that if any party removes or otherwise withdraws an exhibit from
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`its exhibit list, another party may amend its exhibit list to include that same exhibit. The parties also
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`agree that the parties may make objections to such exhibits, other than an objection based on
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`untimely listing.
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`57.
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`The parties agree that any description of a document or other material on an exhibit
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`list is provided for convenience only and shall not be used as an admission or otherwise as evidence
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`regarding the document or material.
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`58.
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`The parties anticipate that exhibit objections will have been resolved before trial.
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`A party will provide exhibits to be used in connection with direct examination by 7:00 p.m. ET the
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`day before their intended use, and objections will be provided no later than 8:30 p.m. ET the night
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`before their intended use. If good-faith efforts to resolve the objections fail, the party objecting to
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`the exhibits shall bring its objections to the Court’s attention before the jury is seated on the day of
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`their intended use.
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`59.
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`Any objections to the authenticity of an exhibit to be used with a witness will be
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`presented to the Court for resolution before the witness is called to the witness stand.
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`60.
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`If a party intends to use during its opening statement an exhibit to which the other
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`party has objected, the party shall disclose the exhibit(s) by 2:00 p.m. ET one (1) calendar day
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`before opening statements. If the opposing party continues to object to any such exhibit(s), it will
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`provide any objections to such exhibit(s) by 6:00 p.m. ET the same day, and the parties will meet
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`and confer by 8:00 p.m. ET the same day. If good faith efforts to resolve the objections fail, the
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`party objecting to the exhibit(s) shall bring its objections to the Court’s attention before the jury is
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`seated on the day of opening statements.
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`61.
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`The parties will exchange final digital copies of their exhibits, with exhibit
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`numbers, seven days before the first day of trial. The parties shall make available for inspection, at
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`a mutually convenient time, any physical exhibits to be used at trial, labeled with an exhibit number.
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`The final digital copy of each exhibit page will be endorsed with a unique page identifier, including
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`the exhibit prefix, exhibit number, and page numbers of the electronic document. The exhibit
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`prefixes shall be: “JTX” for exhibits on the Joint Exhibit List; “PTX” for exhibits on Plaintiffs’
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`Exhibit List, and “DTX” for exhibits on Defendants’ Exhibit List. The page numbering shall begin
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`at 1 for the first page of each exhibit and the numbering on each page should include the trial exhibit
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`number and the physical page number separated by a decimal. For example, page 26 of Joint Exhibit
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`6 would be endorsed / paginated as either: “JTX-006.26” or “JTX-6.26”.
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`62.
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`The exhibit lists indicate whether each trial exhibit has previously been marked as
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`a deposition exhibit. To remove duplicates and improve legibility of the exhibits used at trial, the
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`parties agree that the trial exhibit shall be treated as identical to the indicated deposition exhibit
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`regardless of whether it bears a deposition exhibit sticker.
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`63.
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`No later than April 21, 2023, counsel will deliver to the Courtroom Deputy a
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`completed AO Form 187 exhibit and witness list for each party.
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`64.
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`No later than 12pm on April 21, 2023, counsel will deliver to the Courtroom Deputy
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`an electronic set of all exhibits.
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`B.
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`65.
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`66.
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`67.
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`Demonstrative Exhibits
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`Plaintiff’s demonstratives will be identified with PDX numbers.
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`Defendants’ demonstratives will be identified with DDX numbers.
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`The parties will exchange demonstratives intended for use in opening statements
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`by 2:00 p.m. ET one (1) calendar day before opening statements. The parties will provide any
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`objections to such demonstratives by 6:00 p.m. ET on the day before opening statements, and the
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`parties will meet and confer by 8:00 p.m. ET the same day. If good faith efforts to resolve the
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`objections fail, the party objecting to the demonstrative shall bring its objections to the Court’s
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`attention before the jury is seated on the day of opening statements.
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`68.
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`A party will provide demonstratives to be used in connection with direct
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`examination by 7:00 p.m. ET the night before their intended use, and objections will be provided
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`no later than 8:30 p.m. ET the night before their intended use. If good faith efforts to resolve
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`objections to demonstrative exhibits fail, the objecting party shall bring its objections to the Court’s
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`attention before the jury is seated on the day on which the demonstrative is to be used.
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`69.
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`The party seeking to use demonstratives will provide a color representation of the
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`demonstrative to the other side in PDF format. However, for video or animations, the party seeking
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`to use the demonstrative will provide an electronic copy to the other side, for example, by FTP
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`transfer or secure file-sharing site. For physical demonstratives of uncommon size, the party seeking
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`to use the demonstrative will provide a color representation as a PDF or 8.5 x 11 copies of the
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`exhibits.
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`70.
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`The foregoing provisions do not apply to demonstratives created during testimony
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`or demonstratives to be used for cross examination, neither of which need to be provided to the
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`other side in advance of their use. In addition, blow-ups (including retyping of text from an exhibit
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`to increase size and legibility) or highlights of exhibits or parts of exhibits or testimony are not
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`required to be provided to the other side in advance of their use. This provision also does not apply
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`to demonstratives previously used at trial.
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`71.
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`The parties agree that the demonstratives that the parties intend to use at trial do not
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`need to be included on their respective exhibit lists that are part of this Joint Final Pretrial Order.
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`VII.
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`INTENDED PROOFS
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`72.
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`Plaintiff’s brief statement of intended proofs is set forth in Exhibit 7P.
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`73.
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`Defendant’s brief statement of intended proofs is set forth in Exhibit 7D.
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`VIII. MOTIONS IN LIMINE
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`
`74.
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`The parties’ agreed motions in limine are set forth in Exhibit 8J.
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`75.
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`The parties’ opposed motions in limine are set forth in the following:
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`a.
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`Plaintiff’s motions in limine opposed by Defendants are set forth in Exhibit
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`b.
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`Defendant’s motions in limine opposed by Plaintiff are set forth in Exhibit
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`8P.
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`8D.
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`76.
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`The parties anticipate that other evidentiary issues outside of the motions in limine
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`may arise. They will raise those issues to the Court as necessary at the appropriate time before or
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`during trial.
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`IX. DOCUMENTS CONTAINING JUDICIAL ADMISSIONS
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`77.
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`A party may read at trial (subject to such rulings as the Court may make as to
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`admissibility) a factual statement made by or on behalf of its party-opponent in any of such party
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`opponent’s pleadings (i.e., complaint or answer), responses to interrogatories, responses to requests
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`for admissions, stipulations, or any amendments to or supplementations thereof in the above-
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`captioned actions.
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`
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`X. AMENDMENTS TO THE PLEADINGS
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`78.
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`The parties do not seek to amend the pleadings at present.
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`XI. NUMBER OF JURORS
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`
`79.
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`The Court will conduct jury selection through the “struck juror” method, beginning
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`with the Court reading voir dire to the jury panel in the courtroom, continuing by meeting with
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`jurors individually or at sidebar and there addressing any challenges for cause, and concluding with
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`peremptory strikes.
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`80.
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`The parties may jointly provide a binder of documents to the jury. The contents of
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`such binder must be agreed by the parties. If the parties fail to agree on the contents of such binder,
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`there shall be no jury binder. If the parties wish to provide a binder of documents to the jury, they
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`shall jointly provide eight (8) copies.
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`XII. LENGTH OF TRIAL
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`
`81.
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`The trial will be timed. The Court has ordered the parties each have 14.5 hours for
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`their respective trial presentations (inclusive of one hour of opening argument time and one hour of
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`closing argument time), for a total of 29 hours over 5 trial days. Unless otherwise noted, time will
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`be charged to a party for its opening statement, direct and redirect examination of witnesses it calls
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`live or by way of deposition, cross-examination of witnesses called by any other party live or by
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`way of deposition, closing argument, and all sides’ arguments on objections a party raises (outside
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`the presence of the jury) to another party’s exhibits and demonstrative exhibits.
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`82.
`
`The Courtroom Deputy will keep a running total of trial time used by counsel.
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`XIII. MOTIONS FOR JUDGMENT AS A MATTER OF LAW
`
`
`83.
`
`Motions for judgment as a matter of law shall be made and argued during breaks
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`when the jury is out of the courtroom or at the end of the day after the jury has been dismissed. The
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`parties agree that such motions will be raised with the Court at the first break after the appropriate
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`point during trial so that the Court may inform the parties when such motions will be heard and
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`whether the Court wishes to receive briefing.
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`XIV. HANDLING OF CONFIDENTIAL INFORMATION AT TRIAL
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`84.
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`To address confidentiality concerns, the parties agree that witnesses competent to
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`testify regarding source code (including experts) may present testimony regarding source code, or
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`based upon source code, without offering the source code itself into evidence.
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`85. With the exception of a single corporate representative and single in-house counsel
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`for each party (who do not change during trial), persons not entitled to have access to
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`CONFIDENTIAL OUTSIDE COUNSEL ONLY or CONFIDENTIAL OUTSIDE COUNSEL
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`ONLY – SOURCE CODE information under the Protective Order (D.I. 16) shall be excluded from
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`the courtroom, at the request of any party and subject to the Court’s approval, during the
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`presentation of any evidence designated CONFIDENTIAL OUTSIDE COUNSEL ONLY or
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`CONFIDENTIAL OUTSIDE COUNSEL ONLY – SOURCE CODE information, or any testimony
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`that is reasonably anticipated to solicit such information. If a party intends to use material
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`designated CONFIDENTIAL OUTSIDE COUNSEL ONLY or CONFIDENTIAL–OUTSIDE
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`COUNSEL ONLY – SOURCE CODE by the opposing party or a third party, the party that intends
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`to use such material must disclose that it intends to do so by 7:00 pm ET the day before using such
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`mate